Wilson

This is a motion to dismiss the appeal taken in the ah ove-entitled cause from an order setting aside the default of the defendant upon his failure to answer the complaint within the time prescribed by law, and vacating the judgment entered upon said default. The motion is supported by an affidavit filed by the defendant and recourse to “all of the proceedings and pleadings had in this action.”

The action is in ejectment, and its purpose is to recover from the defendant the possession of certain real property, situated in Butte County, and for damages for the alleged unlawful withholding of such possession. The controversy grows out of a contract whereby the plaintiff agreed to sell to the defendant and the latter agreed to purchase said property upon certain specified terms.

The affidavit of the defendant, which is not denied or controverted by the plaintiff, recites that “soon after the appeal was taken, to wit, on or about the 15th day of August, 1913, one B. F. Johnson purchased from the said J. L. Wilson, all of his equity in said property and also .purchased of this affiant all of his interest in said property, -thereby merging the title and the said possession of said…