Sweeney

The defendant moved in the court below for an order setting aside a judgment taken against him my default, entered in open court on an ex parte application of plaintiff on April 28th, and in support of his motion filed an affidavit made by his attorney, showing, among other things, the following facts: The summons was served upon defendant in the county where the action was commenced, on April 17, 1891. The defendant had, therefore, to and including the twenty-seventh day of April, 1891, to appear and answer or demur. His counsel was engaged in the trial of a case in the superior court on the last day for answering, and in the evening after adjournment, while riding to Vacaville with the plaintiff’s attorney, he asked the latter if he would accept service of a general demurrer, waive copy, and give him more time in which to prepare and serve a special demurrer, saying that he would *306 like until Saturday, May 2d. Thereupon the attorney for plaintiff said he could have until Saturday, or longer if he desired it, in which to file a special demurrer, and that he would accept service of a general demurrer that evening. When the demurrer was presented to the attorney for the…