Douglass

Appeal from an order vacating a judgment entered against defendant upon default.

The affidavit of defendant stated facts showing a sufficient defense to plaintiff’s action, at least as to the first cause of action.

Plaintiff filed a counter-affidavit, which it is contended rebuts the facts stated in defendant’s affidavit.

It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed; but proper practice does not permit the facts stated in defendant’s affidavit, which constitute his defense to the action, to be rebutted by counter-affidavits. The court will not try the merits of the case upon affidavits, but will hear counter-affidavits as to the excuse for permitting the default. (Fr ancis v. Cox, 33 Cal. 323 ; Gracier v. Weir, 45 Cal. 53 .)

Defendant’s affidavit, after fully stating the facts constituting his defense to the action, alleged, as the reason why he permitted a default to be taken against him, that as soon as he was served with the summons he consulted an attorney, whose name he gives, and explained to him the facts stated in his affidavit, and was advised by said *658 attorney that he had no defense, and believing and…