Massimio

Judgment in this action was taken by default for appellant’s failure to appear and plead to the complaint within the time allowed by law after personal service of summons upon her. On May 7, 1929, a motion to vacate and set aside the default was filed by the attorney then representing appellant, fixing May 14, 1929, as the date upon which such motion would be made. This notice was accompanied by a proposed answer, and affidavits of appellant and her then attorney. These affidavits recited that on the date of service upon her appellant had personally delivered the copy of summons and complaint to her attorney and that he had failed to plead for her within time because of his mistaken belief that the copy of the complaint was one in another action between the same parties in which he had already entered an appearance for appellant. On May 14, 1929, appellant’s then attorney failed to appear to present the motion and the motion was denied for lack of prosecution.

Subsequently, on September 17, 1929, a second notice of motion to set aside the default and judgment was filed by appellant’s attorneys, they having in the meantime been substituted for the attorney who filed the first…