Sampanes

The appeal is from an order setting aside a judgment by default and permitting the defendant to answer. The motion for said order was based upon the ground of inadvertence, surprise, and excusable neglect. It was supported by an affidavit of defendant and by oral testimony. The proceeding was taken under section 473 of the Code of Civil Procedure, and notice was given within six months of the entry of the default. [1] In the affidavit of defendant it appears that a complete settlement of all the matters in controversy was entered into between respondent and appellant on or about the twenty-first day of August, 1920, and it was agreed at the time that the action, should be dismissed. It shows further a breach of faith on the part of appellant in failing to dismiss the action and in having the default of defendant entered. Therein it appears, also, that defendant did not learn of the default until some time after it was entered. The general features of the showing made, which we have thus outlined, show a case appealing to the wise discretion of the trial court, and wje cannot say it was an abuse of tha.t discretion to grant the motion. The principle that should control in such…