Johnston

Appeal from an order vacating an order and judgment dismissing an action for want of prosecution.

Plaintiff, respondent herein, commenced an action on a certain trade acceptance. After the taking of depositions, the case was set for trial on June 24, 1927, and was at that time partially tried. The cause was then continued until July 28, following. Plaintiff failed to appear at this time and because of such failure the action was dismissed without prejudice. Immediately thereafter, on August 1, 1927, respondent’s attorneys served upon the attorney for the appellant a notice of motion to vacate the judgment of dismissal above referred to on the grounds of surprise, inadvertence and excusable neglect. The notice of motion was based upon certain affidavits. These affidavits showed that the failure of respondent to appear at the time set for the hearing was due to confusion in telephone messages concerning the hearing. The affidavits set forth that one of the attorneys for respondent received a telephone call, presumably from the clerk of the court, on July 27, 1927, informing him that the case would be called the following day, at the hour of 2 o’clock P. M. instead of 10 A. M., as…