McAvoy

This is an appeal from an order refusing to set aside a judgment entered against the defendant, Oliver McAvoy, by default.

The action was for unlawful detainer of property after default in payment of rent. The complaint was filed August 15, 1890, *325 in the superior court of the city and county of San Francisco, and the summons was served on McAvoy by publication in pursuance of an order of the court. His default was entered on December 4, 1890, and judgment that the plaintiffs have possession of the premises was entered against him on the 15th of the same month. On January 26, 1891, he served on plaintiffs’ counsel notice that on the 30th of that month he would move the court to set aside the judgment upon the ground that the summons had not been served on him, and the court had no jurisdiction to render the judgment. With this notice he also served copies of two affidavits, one made by himself, and the other by his agent, William HicoII. The motion came on regularly for hearing at the time appointed, and the counsel for plaintiffs then objected to the hearing on the ground that due notice of the motion had not been given as required by law. The motion was thereupon submitted…