Garner

This is an appeal from an order refusing to set aside a judgment entered against the defendant by default, in the county of Tulare. The motion was made, under section 473 of the Code of Civil Procedure, upon the ground of mistake, inadvertence, surprise, and excusable neglect. The action was upon a promissory note for $450, dated “Kingsburgh, February 13, 1888,” and payable at Kingsburgh one year after date, with interest. Kingsburgh is in Fresno County, and the summons and copy of the complaint were served on defendant in the county of Tulare on the twenty-eighth *61 day of February, 1889. The judgment was entered on. the 18th of March, 1889.

It appears from the affidavit of defendant, filed in support of his motion, that the note had been left with the First National Bank of Fresno, as collateral security for the payment of another note, made by the plaintiff to one Smith, and that defendant had been informed by the president of the bank that, unless the other note was paid on or before the thirteenth day of February, 1889, suit would be commenced on his note. The affidavit then proceeds to state “that, for the reason that said note was made payable at the county of Fresno,…