Morton

The plaintiff instituted this action in the superior court of Napa county to obtain a divorce from the defendant upon the ground of extreme cruelty. *444 The complaint was filed September 25, 1895, and the summons was duly served on defendant October 14th thereafter. He failed to appear, and on November 11th judgment was entered dissolving the bonds of matrimony between the parties, and awarding the plaintiff permanent alimony in the sum of twenty dollars per month, and thirty-five dollars costs of suit. Defendant received at San Francisco, on November 20th, notice of the entry of the judgment, and on December 7th he served and filed notice that he would move the court to vacate and set aside the judgment upon the ground that it was taken against him through his mistake, inadvariance, surprise, and excusable neglect. The motion was heard by the court in January, 1896, and thereafter denied; and from that order this appeal is prosecuted.

The motion was submitted upon the affidavit of defendant, and oral testimony given by Edward A. Bell, and by the plaintiff and the defendant.

The substance of defendant’s affidavit was that, after the commencement of this action, he and the…