¶1(dissenting). The plaintiff has appealed from an order of the court refusing to vacate a default judgment. Taking the statement of facts claimed by the plaintiff to be true, they are as follows: The parties were partners. Upon the dissolution of the partnership the defendant agred to pay $2,500 for the good will of the plaintiff in the business, upon the express stipulation contained in a written agreement that the plaintiff would not go into business again in the city of Uangdon for at least five years. The defendant paid $1,000 upon the original amount. The plaintiff brought action upon a note for the balance. Default judgment for $1,515.40 and costs were entered May 17, 1921. On June 16, 1921, execution was issued. The sheriff made return thereupon August 16, 1921, showing partial satisfaction in the sum of $502. On August 20, 1921, another execution was issued. On September 21, 1921, a levy was made upon some tractors, a gang plow, and two automobiles. On this date the defendant presented to the trial court his motion papers to vacate the judgment. The trial court issued an order to show cause, staying further proceedings upon the execution. The proposed answer alleges, as a defense, the partnership and its dissolution; the purchase by the defendant of the good will of the business for $2,500; the agreement by the plaintiff that he would not become interested in the ownership of any garage in Uangdon for at least five years without the written consent of the defendant; that the note formed a part of the consideration for the good will; that the plaintiff, in violation of his agreement, in the month of April established a garage and repair shop in Dangdon, and *1129since that time has operated such garage and repair shop and is now doing so; that therefore the consideration for the note has entirely failed. The same facts are also alleged as a counterclaim, and damages therefor demanded in the sum of $2500.
¶2The defendant seeks to vacate the judgment, pursuant to § 7483, C. L. 19x3, which provides that the court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. The defense and counterclaim asserted in the proposed answer is subject-matter for an independent action. All of the rights of the defendant can be secured and determined in an independent action. The defendant complains that he will be prejudiced by being compelled to resort to an independent action, for the reason that the plaintiff is insolvent. The defendant, however, has an equitable remedy to stay the enforcement of plaintiff’s judgment upon proper showing in the prosecution of his independent cause of action. The defense asserted is in the nature of a counterclaim, which can as well be maintained in an independent action, and, unless prejudice would result, the judgment should not be vacated for such reasons. Cresswell v. White, 3 Ind. App. 306, 29 N. E. 612; Wills v. Browning, 96 Ind. 149, L. R. A. 1916F, 858. This court has frequently held, and the statute so provides, that the trial court has a discretion in the vacation of default judgments. For the reasons stated, I am not prepared to hold that the trial court abused its discretion in refusing to vacate the judgment. Bowman v. Wood, 41 Ill. 203; Palmer v. Harris, 98 Ill. 507. The order should be affirmed.