Heller

Appeal from an order modifying the judgment given for plaintiff in the above-entitled cause.

The action was for an injunction to restrain the defendants from infringing its trademark and for damages.

The judgment, which was entered upon a stipulation between the parties, was filed August 7, 1891, and entered April 26, 1892. The proceedings for the modification thereof were instituted December 9, 1892, and the order granting the motion for that,purpose was thereafter made, on the ground that “ the decree awarded relief in excess of the stipulation and the prayer of the complaint, and had been inadvertently entered.”

The question to be determined on this appeal involves-the power of the court to make the order.

Section 473 of the Code of Civil Procedure provides,, among other things, that the court may, “ upon such terms as may be just, relieve a party, or his legal representative, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided, that application therefor be made within a reasonable time, but in no-case exceeding six months after such judgment, order, or proceeding was taken.”

The grounds…