Carr

This appeal is from a judgment by default, and from an order denying defendant’s motion to vacate said judgment and default.

The action was commenced in the superior court of Kern county, June 20, 1895, and the summons was *380 served upon the defendant at the city and county of San Francisco by the sheriff thereof on the twenty-fourth day of the same month, as shown by the return of said sheriff indorsed thereon. On July 25th, the thirty-first day after said service as shown by said return, defendant’s default and judgment thereon were entered by the clerk.

Defendant promptly moved to set aside the judgment and default upon the ground that they were taken against him through his mistake in the date upon which service of the summons was made upon him, and in support of said motion two affidavits, one made by the defendant and one by his attorney, were read, and in opposition thereto plaintiff read the said return of said sheriff. Ho other evidence was offered or heard.

Defendant’s affidavit shows that immediately after the service of the summons upon him he noted thereon the words “ served June 25, 1895”; that to the best of his knowledge and belief said summons was served upon…