Brennan

Appeal from an order denying defendant’s motion to set aside a judgment on the ground of surprise and excusable neglect.

The action in which the judgment was obtained was one brought upon an assigned claim of a Dr. Hedley Scudder for medical services rendered, which services were alleged to be of the value of $898.

The action was commenced May 21, 1924, and appellant served and filed his answer thereto on August 14, 1924. The matter was set for hearing and came on regularly for trial on December 10th following. Defendant failed to appear and judgment was rendered against him for the full amount prayed for, together with interest and costs of suit. Thereafter, on December 16th of the same year, a motion was made to vacate and set aside the judgment upon all the grounds provided for by section 473 of the Code of Civil Procedure.

In support of this motion the attorney for the defendant filed an affidavit stating in substance that prior to December 10, 1924, he had advised his client that the trial of said cause was set for said day and had been informed by him that there was no necessity to prepare for trial as he had arranged with Scudder, the assignor of the claim, to settle the…