Dwyer

This is an appeal from an order denying appellant’s motion to have set aside a default entered against him, and the judgment entered pursuant thereto. From the transcript on appeal it appears that on April 16, 1929, appellant was served with a summons and complaint in a personal injury action. On April 25, 1929, appellant placed a copy of the summons and complaint in the hands of an attorney, for the purpose of having said attorney represent him in the defense of such action. The attorney did not immediately appear for appellant, nor did he file an answer or demurrer upon his behalf, but it would appear from his affidavit, he sought, without success, to get in touch by telephone with plaintiff’s attorney. Four days later the attorney for defendant and appellant attempted to file an answer, but then found that a default had been entered. The default was entered three days after the time to answer had expired. Two of the intervening days were Saturday and Sunday.

On May 4, 1929, said attorney verified an affidavit upon a motion to have the default set aside on the ground of inadvertence and excusable neglect. This affidavit did not contain an affidavit of merits, nor does the…