McDonald

This action was brought by plaintiff as the assignee of ten claimants to recover wages alleged to be due from defendants. Defendant Electrotone Corporation was not served and did not appear. On May 9, 1934, an agreement was made between defendant Severy and C. S. Murphy and his associates (plaintiff’s assignors), by the terms of which Severy agreed to confess judgment in the sum sued for, to pay $500 on or before May 20, 1934, and to assign certain property as security for his performance. In consideration of Severy’s promise, the claimants agreed to dismiss the action against defendant Eleetrotone Corpora-tion. Accordingly, such a dismissal with prejudice was filed May 15, 1934.

On August 23, 1934, plaintiff filed a motion to vacate the dismissal, showing by affidavit that Severy had failed to perform his agreement, and asserting that the dismissal had been obtained by fraud. The court granted the motion. Defendant Eleetrotone Corporation, having had no notice of the motion, appeals from this order.

The court undoubtedly had discretionary power to vacate the dismissal upon the showing made, but the question is whether it could do so without notice to the corporation. It is…