Van Cleve Glass Co. v. Tillyer

The motion to dismiss the petition in error is overruled.

The plaintiff in error, by his motion, asked that the defendant in error be dismissed for the reason that since the commencement of these ..proceedings, the judgment sought to be reversed has been settled and paid This the defendant in error denies.

*397We are of llie opinion that where an alleged settlement and payment are contested, an issue is made that can not be properly tried upon affidavits. An issue should be be made by proper pleadings and trial upon evidence had as in other issues.

Of the many cases examined, we cite, as sustaining this proposition: Collins v. Dairs, 32 Ohio St., 76; 24 Mich., 408; 38 N. Y. Sup. Ct., 74; 32 O. S., 76.