Nicol

This is an appeal by the defendant from an order of the superior court of the city and county of San Francisco vacating and setting aside the judgment entered in said cause on August 26, 1925. The order was based upon a motion made by the plaintiff in accordance with the provisions of section 473 of the Code of Civil Procedure, on the ground of mistake, inadvertence, surprise, and excusable neglect. There are two assignments of error, either of which, it is claimed by the appellant, requires a reversal of the order.

First, that the order vacating the judgment was in excess of the jurisdiction of the court and therefore void;

Second, that there was no showing of mistake, inadvertence, surprise, or excusable neglect.

The complaint alleges a cause of action for personal injuries. The material allegations thereof are denied by the answer. The motion was heard upon affidavits, and upon the minutes of the court of August 26, 1927, which include therein certain statements made by the trial judge and which were considered in evidence on this motion.

It appears by the affidavit of Daniel A. Eyan, the attorney of record for the plaintiff, that this cause was originally assigned to…