Boos

Action in replevin to recover possession of a certain automobile. Defendant justified the taking as sheriff under execution issued in an action entitled Mary Lazarus v. Simon Boos, alleging that said automobile is the property of said judgment debtor.

The cause was tried by the court without a jury and the court made and entered findings and judgment for plaintiff, on December 7, 1916. On December 12, 1916, defendant served and filed notice of a motion to set aside and vacate said findings and judgment on the ground that no notice of the filing of said findings or of the time when said findings would be presented to the judge of said court was served upon defendant, and that defendant did not waive notice of the time when said findings would be presented. The time for hearing said motion was shortened and order made that it be heard December 13, 1916. We do not find in the record any order denying the motion, hut plaintiff seems to treat the motion as having been denied.

On December 13, 1916, defendant served and filed notice of appeal from the judgment of December 7, 1916, and now seeks to review the action of the court in denying said motion. Respondent objects on two grounds,…