Dwinnell

This is an appeal from an order refusing to vacate a judgment for defendant.

The original complaint was filed June 14, 1920, and demurrer thereto was sustained September 25th. On November 6, 1920, by leave of the court an amended complaint was filed and on the same day defendant interposed his demurrer thereto. Without notice to the plaintiff or its counsel, the demurrer was placed on the law calendar to be heard November 20th and on that day, in the absence of plaintiff and its counsel, the demurrer was submitted without argument and was sustained by the court without granting leave to amend and judgment was thereupon entered in favor of defendant. On January 27, 1921, plaintiff filed notice of motion to vacate the judgment on the ground that the plaintiff had no notice of the hearing. Attached to the notice was the affidavit of plaintiff’s counsel reciting the foregoing facts and stating that affiant had no notice of the placing of the demurrer on the calendar or of the action of the court thereon prior to January 22, 1921; that affiant’s office at all times mentioned was in the city of Sacramento, and “that affiant believes that plaintiff herein has a good and valid and…