Newman

There are two appeals in this case, on a single transcript. The first is from an order vacating the judgment entered in the action in favor of the defendant and recalling the execution issued thereunder. The second is from a subsequent order directing the issuance of a commission to take the depositions of certain witnesses residing in another state. The second order was made after the defendant had given notice of appeal from the first.

The action came on regularly for trial on the fourth day of February, 1925. “The plaintiff neglected and failed to appear in said court and cause, or to offer any evidence in his own behalf, and thereupon judgment was entered . . . against the said plaintiff, and in favor of the defendants” for their costs. Thereafter, on the twenty-second day of April, 1925, plaintiff served and filed notice of motion for an order vacating the judgment' and recalling the execution which had been issued thereon, on the ground that the court was without jurisdiction to render the judgment. In support of the motion the plaintiff made affidavit as follows:

The court granted the motion and “ordered that . . . the said judgment is hereby vacated, set aside, annulled…