Stafford

We have just filed an opinion supporting an affirmance of a summary judgment in this case. (Ante, p. 227 [ 9 Cal.Rptr. 706 ].) The plaintiff took a second appeal, this time from an order denying his motion to vacate and set aside the “order or judgment” which we have just affirmed. The only debatable question presented is: Should we dismiss the appeal or affirm the order ?

Taking judicial notice of the steps taken in this case, we find that the answer to plaintiff’s complaint was filed as of August 15, 1957, after defendants’ default was set aside. The following year the defendants gave notice of “..lotion for summary judgment,” seeking specifically an order “striking the complaint of the plaintiff and/or for entry of judgment in *239 favor of the defendants and against the plaintiff . . . .” The time set for the hearing of the motion was October 21, 1958, over a year after the filing of defendants’ answer. The settled statement on appeal, in the companion case, reveals that the trial court declared “that it appeared the said motion for summary judgment should be treated as a motion to dismiss under the provisions of section 435 of the Code of Civil Procedure, and the case of…