Thomas

Appeal from an order refusing a motion to set aside and vacate a judgment.

On October 12, 1880, the state commenced an action in the superior court of El Dorado county against the appellant, W. 0. Thomas, to foreclose a certificate of purchase of certain state lands, issued to him in 1875, and in which action judgment was rendered against said Thomas on the 27th of December, 1880.

Prior to the commencement of that action, Thomas conveyed the lands embraced in said certificate to the El Dorado Slate Company, a corporation, and on Sep *573 tember 21, 1892, said corporation served notice of a motion to set aside and vacate the said judgment upon the ground that the said judgment is void, the court never having acquired jurisdiction of the defendant. Attached to the notice, an affidavit was served, which contained a copy of all the entries made upon the register of actions of said court in said cause, in which record no mention was made of any affidavit for an order of publication of the summons, nor of any order made by the court for such publication, and it is alleged that no such affidavit or order was ever made or filed.

The affidavit further alleges that the defendant, Thomas,…