Bogardus

The appeal is taken upon the judgment-roll, which discloses the record to be as follows: The original complaint named as defendants H. S. McLaughlin and H. Sydney McLaughlin in addition to O ’Dea, who is the respondent here. It is alleged that in June, 1924, O ’Dea, through his attorney H. S. McLaughlin, had filed a complaint seeking recovery of money claimed to be due on the rental of certain real property; that the return on the summons showed personal service thereof by H. Sidney McLaughlin and that thereafter judgment by default was entered against the appellant on which a writ of execution was served over two years after the commencement of the action, by virtue of which appellant’s money on deposit in a bank was seized and turned over to O’Dea and H. S. McLaughlin, and his safe deposit box attached; that appellant was never in fact served with summons and had no knowledge of the commencement or pendency of the action until October of 1926, when his bank account was levied on; “that if this plaintiff had any knowledge in due time of the issuance of said summons and complaint he would have defended said action or had he the knowledge that a default had been entered therein he…