Ashton

This is an appeal from an order of the superior court, setting aside an order of dismissal and vacating a judgment. The cause had been set down for trial on the fifteenth day of October, 1890, but a hearing had been delayed from day to day by reason of other causes on the calendar having precedence, until the morning of October 23d, when it was called for trial at five minutes after 10 A. M., and, neither plaintiff nor his attorney being present, the cause was dismissed, and a judgment was entered on the same day in favor of defendant. Within five minutes after the order of dismissal was entered, the attorney for plaintiff appeared in court, and at once applied to the court on an affidavit and notice for an order shortening the time of notice, which was granted, and a motion to vacate the order and restore the cause to the calendar was noticed for the following day. The court vacated the order of dismissal and restored the cause to the calendar. The notice of motion and affidavit on the part of plaintiff was accompanied by a transcript on appeal to the supreme court in the same cause after a former trial, stipulated to be correct, and which contained a sufficient showing of…