Spears

The appeal is by the plaintiff from an order of the superior court of Merced County entered on the seventeenth day of March, 1916, granting defendants’ motion to set aside a judgment and decree entered on the tenth day of May, 1915. The proceeding is founded on section 473 of the Code of Civil Procedure.

The controversy arose over rights of the respective parties to the use of" water for domestic and irrigation purposes. It appears from an affidavit of defendant, Mrs. Spears, sworn to on November 3, 1915, that the complaint in the action was filed on September 4, 1912; that she employed F. G-. Ostrander as her attorney and an answer to the complaint was filed; that, on May 10, 1915, a decree and judgment was filed in said action wherein it was set forth that “the parties to the foregoing action have in open court stipulated that findings of fact be waived in the foregoing action and that judgment in said action be made and entered as herein provided”; that said defendant never at any time or place gave to said Ostrander or any other person authority to waive findings or stipulate to have judgment entered; that said Ostrander exceeded his authority and acted without deponent’s…