Boyer

This is an appeal by plaintiff from an order denying his motion to vacate an order dismissing his action against defendant made under section 581a of the Code of Civil Procedure, on the ground that the summons in the action was not served on defendant within three years next after the commencement of the action and that defendant had not appeared in said action.

The complaint was filed on May 12, 1914. Summons was; not served upon defendant at any time. On October 4, 1915, the mayor of the defendant city served on counsel for plaintiff a notice that certain attorneys had been substituted .by defendant for other attorneys, and this notice was filed with the papers in the case. Nothing further was done until January 4, 1918, when the attorneys so substituted for the first time appeared in the action and moved a dismissal on the grounds above stated. This motion was granted on January 16, 1918, no opposition being made thereto on behalf of plaintiff.

Thereafter and on August 5, 1918, plaintiff filed a notice of motion to vacate the order of dismissal on the grounds that (1) the motion was made by one who was not an attorney of record; (2) that the face of the record showed that a…