Mahana

The court below, on motion of defendant, struck out certain portions of the second amended complaint and sustained a demurrer to the remaining averments thereof. This is an appeal from the judgment entered upon the order sustaining the demurrer, and from an order, subsequently made, denying the motion of plaintiffs to set aside and vacate the order and the judgment sustaining the demurrer to said complaint, on the ground that said order and said judgment were brought about through “mistake, inadvertence, surprise and excusable neglect on the part of the plaintiffs and their former attorneys of record in said cause.” (Code Civ. Proc., sec. 473.)

The plaintiffs in their opening brief state the salient allegations of the complaint as follows:

The condition of the obligation in each of the undertakings is as follows: “Now, therefore, the condition of this obligation is such, that if the principal shall indemnify the obligee against any loss or damage directly arising by reason of the failure of the principal to faithfully perform the work contracted to be performed under said contract, and shall pay, or cause to be paid, in full the claims of all persons performing labor upon or…