Moskowitz

This is an appeal by the defendant from an order of the court below denying defendant’s motion to set aside a default judgment. The motion was heard upon affidavits under the provisions of section 473 of the Code of Civil Procedure. The facts as shown by the affidavits were briefly as follows: Defendant herein was a defendant in a criminal prosecution in the police court growing out of the same automobile accident involved in this action. On the trial of that case one of the attorneys for the defendant and appellant herein was attorney for the defendant therein and the attorney for the plaintiff and respondent herein was special prosecutor. After that trial was concluded and the parties came into the street plaintiff’s attorney approached the automobile in which the defendant herein was seated with his counsel and handed defendant a copy of a complaint and summons in this action, stating, “here is a summons for you’’ (disputed). Defendant’s counsel immediately took from defendant’s hands the paper served on him, opened it (disputed), and called out objections to the service, claiming the copy of summons was unsigned by the county clerk and demanding that the original summons be…