Opinion of the Court by

The petition alleges facts which if true, show that the judgment of dismission of 1862 was fraudulent, and a petition within five years, to set it aside, is, according to the code, the appropriate remedy. And, although more than five years had elapsed before the filing of this petition, yet the admitted allegation that the cause of action was not discovered until within less than two years, apparently prevents the bar.

And the .reason assigned for the non-discovery sooner is sufficient to repel the imputation of gross negligence.

It seems to this court therefore, that the circuit court ought to have over-ruled the demurrer to the petition and required an answer.

Wherefore the judgment sustaining demurrer and dismissing the petition is reversed, and the cause remanded.