Shupe

pro This is an unlawful detainer action. The chronology of the case is as follows:

It will be noticed that the judgment was entered March 5, 1923; that the notice to set aside said judgment was not served or filed until May 18, 1923, or almost two and one-half months after the entry of judgment; that the order setting aside said judgment was not entered until June 11, 1923, or over three months after default.

The appeal is taken from the order setting aside said judgment of March 5, 1923. Appellant claims that section 473 of the Code of Civil Procedure does not apply to an unlawful detainer action, while section 1179 of the same code does govern.

Respondent controverts this position, and alleges furthermore that the complaint fails to state a cause of action in this: (1) That the lease provides that said defendant shall “keep all of said grounds in first-class condition, including the proper attention and irrigation of grapes, shrubs, grass, vines and any other plants or trees growing thereon, all in accordance with the directions of the” plaintiff; (2) that the alternative notice provided for in subdivision 3 of section 1161 of the Code of Civil Procedure was not served, and…