Bien

Defendants were sued as indorsers of a promissory note. Upon proof of personal service of summons and copy of complaint upon defendant, Dora Peyser, her default was regularly entered on the fourteenth day of July, 1910, and on the thirtieth day of July, 1910, judgment was entered against her upon said default for the sum of $1,975.36.

On the twenty-fourth day of August, 1910, said Dora Peyser gave notice of a motion to vacate said judgment, upon the ground that she had never been served with the summons or complaint. The court, after a hearing upon the motion, granted the same, and plaintiff has appealed to this court from such order.

Appellant claims that the affidavit of merits filed and served by defendant with her notice of motion was insufficient, and that for this reason the court erred in granting the motion.

Where as in this ease the motion to vacate a judgment is promptly made upon the ground that the defendant has never been served with summons, and that the court therefore did not obtain jurisdiction over the defendant, no affidavit of merits is required. In such case the moving party is not invoking the benefit of section 473, Code of Civil Procedure, but is asking…