Wildenhayn

This is an appeal from a judgment rendered upon an application for a writ of certiorari whereby the trial court annulled an order of the justice’s court of the city and county of San Francisco vacating and setting aside a default judgment in an action before it.

The record shows the following to be the facts: On or about September 15, 1915, the plaintiff herein commenced an action in said justice’s court against C. E. Herrick, Incorporated, to recover the sum of $142 and caused summons therein to be forthwith issued and served. On September 23, 1915, judgment by default was rendered against said defendant. On September 28, 1915, the defendant moved for an order vacating and setting aside said default judgment and permitting said defendant to appear and plead therein. Said motion was heard on October 1, 1915, by Justice Frank T. Deasy, in whose court said action was pending, and on said last-named day the justice made an order granting said motion. The said order as it was then entered in the clerk’s record of said court did not contain any provision for the payment of costs by the defendant as a condition of granting said motion, as required by section 859 of the Code of Civil…