Thole

Plaintiff appeals from an order denying its motion, pursuant to Code of Civil Procedure section 473, to vacate a judgment by confession.

Plaintiff filed an action on April 1, 1969 against defendant on a promissory note in the principal sum of $5,000 with interest. The complaint was never served on defendant and defendant did not file a responsive pleading. Defendant did, however, file a “Confession of Judgment Statement” on May 6, 1969, whereby she confessed judgment in favor of plaintiff in the sum of $5,251.48, plus interest at the rate of 8V2 percent per annum, from April 1, 1968 until the date of entry of judgment. A judgment for the amount confessed was entered on May 6, 1969, and on May 12, 1969, the clerk gave notice to plaintiff’s attorneys that such a judgment was entered.

On October 17, 1969, plaintiff filed a motion to vacate the judgment pursuant to Code of Civil Procedure section 473 on the ground that it was void because it was entered without the knowledge or consent of plaintiff. After a hearing the court denied the motion.

Plaintiff makes three contentions: (1) that a judgment by confession entered at the instance of a defendant alone, without the…