Schart

This is an appeal from an order of the court below setting aside a judgment by default, rendered against the defendants, on the ground that the summons was served by publication, and that no copy thereof was served upon the defendants by mail or otherwise, although the defendants were nonresidents of the state, and their residence as shown by the affidavit for publication was known, and although the order for publication required copies of the summons to be forwarded to said defendants by mail.

The motion to set aside the default was made within one year after the entry of default and judgment, as provided by section 473 of the Code of Civil Procedure.

The moving affidavits show that defendant Bock is the holder and owner of a prior mortgage upon the property covered by plaintiff's mortgage which was foreclosed in the action.

The substituted service was not complete unless a copy of the súmmons and complaint were deposited in the postoffice, directed to the defendant, as required by the order of the judge.

It became,therefore, not only the right, but the duty, of the court to set aside the default and judgment inadvertently entered.

Appellant objects that the notice of motion…