Rauer

The plaintiff brought this action to recover damages for the alleged breach of a written contract entered into by the defendants, of San Francisco, with H. Brunhild & Co., of the city of New York, relative to the sale on the Pacific coast of a certain brand of champagne. The contract was dated February 5, 1891, and was to run for five years. The complaint was *101 filed May 20, 1895, and alleged that prior to the commencement of the action H. Brunhild & Co. transferred and assigned to the plaintiff all their right, title, and interest in and to their claim and demand against defendants for damages under the contract.

A general and special demurrer to the complaint was interposed and sustained, and plaintiff was allowed ten days to amend. No amended complaint was filed, and on October 16, 1895, judgment was entered dismissing the action and awarding costs to defendants.

On November 8,1895, the plaintiff, pursuant to previous notice, moved the court to set aside the said judgment upon the ground that it was taken against him through his inadvertence and excusable neglect. In support of the motion plaintiff read his own affidavit and the affidavit of one J. I. Macks, and his…