The plaintiff in error here was plaintiff below. His action there was brought under favor of Section 5354, subdivision 9, Revised Statutes, and he seeks a new trial by petition which alleges that at a previous term judgment was rendered against him upon a cognovit note for more than was due. ITis petition sets forth that he had given said noteto the defendant together with collateral security consisting of another and larger note made by a Pittsburg corporation, and that the defendant, by its negligence in failing to have this collateral note protested, released the endorsers thereon, and that the maker has since become insolvent.
. Plaintifffurther alleges that by virtue of this tranaction his own cognovit note was paid, and that the defendant in taking judgment for the amount thereof, or for any amount thereon, obtained judgment for more than was due it.
We think this petition does not state a cause of action. The facts alleged show that plaintiff may well have had a good counter-claim against the defendant, and may still have an independent cause of action against it,- but they do not show a defense to the cognovit note.
The reasoning and authorities cited by the court below in its opinion, we think, are sound, and the judgment below is therefore affirmed.