California Real Estate Exchange v. Sequoyah Hills Co.

An appeal from an order denying a motion to vacate and set aside a judgment entered against appellant.

An action was commenced in the superior court in and for the county of Alameda by appellant in which respondent appeared and answered the complaint, filing with its answer a cross-complaint against the former. The action was regularly set for trial by respondent, and, appellant not appearing, the cause was heard and the judgment mentioned entered on August 24, 1923, the court finding, as appears from its decision and judgment, that appellant was duly and regularly served with notice of trial and had knowledge of the time fixed therefor. Thereafter, on February 11, 1924, appellant served and filed a notice of motion to vacate the judgment, the motion being supported by affidavits alleging the failure by respondent to serve notice of the date fixed for the trial of the action. The motion came on regularly for hearing on February 15, 1924, was denied and this appeal taken from the order.

It is conceded that on October'22, 1923, appellant filed a notice of appeal from the original judgment mentioned to the supreme court of the state of California; that if such appeal was perfected…