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This is an appeal by the plaintiff from an order of the superior court of the state of California, in and for the city and county of San Francisco, setting aside a judgment rendered in their favor against the defendant after the entry of his default. The order complained of was made upon two motions of the defendant, one upon the ground that said judgment was irregularly given and made through inadvertence upon the part of the trial court in that no proof was made of the notice to defendant of the time of trial, prior to the date of the actual trial of the said cause, as provided for in section 594, Code of Civil Procedure, and as required by rule 18 of the rules of practice of said court. The other motion of the defendant was upon the ground that the judgment was taken against him through his mistake, inadvertence, surprise and excusable neglect. The first motion is based upon the notice of motion and the judgment-roll, and the second motion, upon the notice of motion, all the papers, pleadings and records on file in the action and the affidavit of the defendant.

The affidavit of defendant is to the effect that prior to November 13, 1922, he had no notice of the entry of…