Acock

This appeal is by the plaintiff from an order setting aside a judgment of dismissal of the above-entitled action on motion of defendants. The record before us discloses the following facts: The action, which is for the recovery of the possession of personal property, was commenced on-the twenty-second day of August, 1889, at which time the plaintiff gave an under *218 taking for the delivery to him of the property described in the complaint, and thereupon said property was upon proper process taken by the sheriff from the defendants by said plaintiff. On the fourth day of September, 1889, and after the defendants had given an undertaking for the redelivery of said property to them, the plaintiff, without redelivering said property to them, caused to be made by the clerk of the court in which said action was pending the following entry in the register of actions:—■

On the tenth day of September, 1889, defendants filed an answer to said complaint, and at the same time a notice of motion to have said order of dismissal set aside and to reinstate said cause upon the records of the court, and for permission to file an answer. On the twenty-first day of September, 1889, said motion was…