Taranto

This is an appeal from an order denying the motion to set aside and vacate a judgment which was entered on default for failure to answer within the time allowed by law.

The plaintiff instituted a suit for rescission of a contract to purchase real property for a breach of covenants therein contained, and to recover $1,000 which was advanced on account of the purchase price thereof. The complaint was filed in October, 1928. The defendant commenced negotiations with the object of securing a compromise of the issues in dispute. It is conceded that the attorneys for the respective parties conferred regarding the proposed settlement on December 26, 1928. Satisfactory terms were not agreed upon. The default of the defendant for failure to answer the complaint was entered December 31, 1928. January 7, 1929, a default judgment was duly entered. The defendant subsequently served and filed, pursuant to section 473 of the Code of Civil Procedure, a motion to set aside the default and to vacate the judgment for excusable neglect, which was heard by the court on January 14, 1929. This application was determined upon affidavits of the respective parties which were conflicting with respect to…