Eldred

I concur in the judgment upon the ground that the complaint does not show any excuse for the failure to proceed by motion in the original action.

This is an appeal by plaintiff, upon the judgment-roll, from a judgment in favor of defendants.

The action was brought on the equity side of the court, to set aside and annul a judgment and decree of foreclosure rendered against plaintiff in the superior court on April 23, 1890, upon three certain promissory notes, and a mortgage made and executed by plaintiff to one Jacob Updegraff, and assigned by him to White, defendant herein. The main ground upon which .appellant rests his claim for relief is, that in the foreclosure suit an attorney at law appeared for appellant (defendant therein) without authority, and filed a demurrer for him; that afterwards, by stipulation of attorneys therein, alleged to have been forged, the demurrer was withdrawn and judgment entered against appellant; and that no summons in said suit was ever issued or served on appellant. There are also some averments about certain unauthorized changes made in the complaint in the foreclosure suit, which we do not deem material.

This present action was not commenced until thirteen months after the date of the judgment in the foreclosure suit; and no reason is shown why it was not commenced sooner, or why…