Numerous decisions of this court have announced the well-established rule that where a judgment is entered upon a cognovit note without notice to the defendant, and a motion in apt time is thereafter filed to set aside the same and a meritorious defense is tendered by answer, it is the duty of the court to vacate the judgment and try the case on the merits. Richards v. First National Bank of Fort Collins, 59 Colo. 403, 148 Pac. 912; Commercial Credit Co. v. Calkins, 78 Colo. 257, 41 Pac. 529; Mitchell, et al. v. Miller, 81 Colo. 1, 252 Pac. 886; Denver Industrial Corporation v. Kesselring, et al., 90 Colo. 295, 8 P.2d 767; Lucero v. Smith, 110 Colo. 165, 132 P.2d 791. We direct attention to the undisputed facts in the instant case.

"* * * Numerous decisions of this court have announced the well-established rule that where a judgment is entered upon a cognovit note without notice to the defendant, and a motion in apt time is thereafter filed to set aside the same and a meritorious defense is tendered by answer, it is the duty of the court to vacate the judgment and try the case on the merits. Richards v. First National Bank of Fort Collins, 59 Colo. 403, 148 Pac. 912; Commercial Credit Co. v. Calkins, 78 Colo. 257, 241 Pac. 529; Mitchell, et al. v. Miller, 81 Colo. 1, 252 Pac. 886; Denver Industrial Corporation v. Kesselring, et al., 90 Colo. 295, 8 P.2d 767; Lucero v. Smith, 110 Colo. 165, 132 P.2d 791. * * *" We have read the cases which are cited in the Prather opinion and it would seem that no distinction has been made between the judgment taken with notice and the judgment without notice (although in the Prather case the confession judgment was obtained without notice).

The affidavits filed by the plaintiff denied the charges contained in the motion, affidavits and answer of defendant, and also contained averments, which, if true, conclusively establish that the motion to vacate was not filed in apt time, and therefore the defendant was guilty of laches. The counter-affidavits filed by plaintiff should not have been considered as denials of the defensive matter contained in the motion, affidavits and tendered answer of defendant, and we assume that they were not so considered. Mitchell v. Miller, 81 Colo. 1, 3, 252 Pac. 886; Philbrick v. Conejos Bank, 71 Colo. 19, 21, 203 Pac. 678; Richards v. National Bank, 59 Colo. 403, 406, 148 Pac. 912. We have held that judgment confessed under warrant of attorney will be set aside and vacated, in order to permit a defense on the merits of the case, where the motion, affidavits or tendered answer contain statements which are prima facie good as a defense to the allegations of the complaint, and provided the application to set aside and vacate is made in apt time.

2. Vacation — Motion — Apt Time. As to the objections that a second motion to vacate a judgment was filed without leave of court, and that the application was not made in apt time, see Mitchell v. Miller, 81 Colo. 1. Error to the District Court of Jefferson County, Hon. S. W. Johnson, Judge.

The judgment was a fraud upon the court whose inherent power was properly invoked and upon a proper showing to have it set aside, and the trial court was authorized to exercise the power and to administer the appropriate relief of cancellation of the judgment, which was abundantly justified by the evidence. See also Mitchell v. Miller, 81 Colo. 1, 252 Pac. 886; Mitchell v. Bank, 81 Colo. 4, 252 Pac. 887; Smith v. Morrill, 12 Colo. App. 233, 240, 55 Pac. 824. People v. District Court, 76 Colo. 169, 229 Pac. 1113. The judgment is therefore affirmed.

"Numerous decisions of this court have announced the well-established rule that where a judgment is entered upon a cognovit note without notice to the defendant, and a motion in apt time is thereafter filed to set aside the same and a meritorious defense is tendered by answer, it is the duty of the court to vacate the judgment and try the case on the merits. Richards v. First National Bank of Fort Collins, 59 Colo. 403, 148 Pac. 912; Commercial Credit Co. v. Calkins, 78 Colo. 257, 241 Pac. 529; Mitchell, et al. v. Miller, 81 Colo. 1, 252 Pac. 886; Denver Industrial Corporation v. Kesselring, et al., 90 Colo. 295, 8 P.2d 767; Lucero v. Smith, 110 Colo. 165, 132 P.2d 791. * * *