Andrews

This is an appeal from an order of the superior court of the city and county of San Francisco setting aside a default judgment.

The action was commenced in April, 1916, by plaintiff as the owner of a promissory note against the defendant as maker thereof. In October, 1916, ah order of publication of service of summons was made, and the complaint and sum mons were received through the mail by defendant in Boston, Massachusetts, about October 31,1916. Thereupon defendant sent the papers to his attorney in San Francisco, Mr. John D. Rutledge, who noted the last day for defendant to answer as January 25, 1917. Defendant returned to California late in December, 1916, and was personally served with the summons and complaint in San Francisco on January 8, 1917. On the following day, January 9th, he handed these papers to Mr. Rutledge, stating that he had just been served therewith. On January 19th Mr. Rutledge asked plaintiff’s attorneys for an extension of time to answer, and was informed that defendant’s default had been entered and judgment taken against them that morning. Under this state of facts Mr. Rutledge immediately noticed a motion to set aside the default, basing his…