Fox

This is an appeal by plaintiff from an order, made December 18, 1903, setting aside, as to defendants Green and Harris, a decree quieting title, which decree bears date December 22, 1902, and permitting an answer to the merits of the action. The order was granted in pursuance of the provisions of section 473 of the Code of Civil Procedure on the ground that the summons was not personally served upon the said defendants Green and Harris.

Appellant’s contention is that by the provisions of section 939 of the Code of Civil Procedure the time for appeal is limited to six months, and that section 1049 of the same code provides that “an action is deemed to he pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied,” and that the amendment of said section 939 in 1897, shortening the time of appeal from one year to six months, must be taken as nullifying the provision of section 473, giving a year’s time after the judgment in which to move to set aside the same, where personal service of summons has not been had. We can see no good reason why the amendment of 1897, relating to…