Storey

Appeal from the judgment of the superior court of the city and county of San Francisco reversing and annulling an order of the justice’s court of said city and county, wherein the justice of the peace set aside a default judgment theretofore made and entered by him in favor of the plaintiff and against the defendant.

Upon the face of the record the judgment in the justice’s court was regularly and properly entered. Subsequently defendant noticed a motion to set aside said judgment for hearing on the seventh day of October, 1911, concededly the tenth day after he had knowledge of the entry of said judgment, and based his motion upon the ground that “defendant’s time for answering had not elapsed when said judgment was entered.”

In support of this motion an affidavit of defendant was filed, reciting that the summons had been served upon him on the twenty-second day of September and not on the twenty-first, as alleged in the affidavit of service, and therefore that the default and judgment entered on the twenty-seventh was premature.

By stipulation of counsel the hearing of the motion was continued from the seventh, to the eleventh day of October “or as soon as counsel can be…