Stanley

Motion to dismiss the appeal. On September 8, 1905, in the absence of defendant’s attorney, plaintiff’s attorneys appeared in court and moved that the default of defendant be entered, which motion was denied. Thereafter, and on the same day, plaintiff’s attorneys “went to the clerk of said court and prevailed upon said clerk to enter a purported or pretended default of the defendant in the action.” On the twenty-third day of September defendant gave notice of motion to set aside and open the default of defendant under section 473 of the Code of Civil Procedure. The motion was heard on the 25th of that month, and the court made an order on the 27th of September granting the motion. Plaintiff appeals from this order.

The notice of appeal was served and filed November 25, 1905. It appeared at the hearing of the motion to dismiss the appeal that no undertaking was filed until December 5, 1905. Attached to the undertaking was a paper signed by the judge of the superior court, and dated December 1, 1905, granting plaintiff to and including December 6, 1905, in which to file its undertaking on an appeal herein. It appears from the affidavit of the clerk that this paper was never marked…