Schaefer

The plaintiff brought this action to have the marriage between himself and defendant annulled. Summons and a copy of the complaint were served upon the defendant, who obtained an order from the court grant ing him ten days within which to appear, demur, or answer. While this order was in force, defendant and his counsel each signed a stipulation which was filed, withdrawing the extension. Thereupon the court entered the default of the defendant, and proceeded with the hearing. After taking the testimony of the plaintiff and considering certain documentary evidence, it entered its decree of annulment upon the ground that at the time of the marriage with defendant, plaintiff had a former husband living, the marriage with whom was then in force. Four days later the defendant gave notice of motion to vacate the default and judgment upon the ground of “mistake, inadvertence, surprise, and excusable neglect.” The motion was granted, and from that order the plaintiff appealed.

The defendant’s affidavit fails to show any such mistake, inadvertence, surprise, or excusable neglect as would justify the court in granting the motion. The facts therein stated are that after service of summons…