Opinion by

An appeal lies in this case from a judgment vacating a judgment and granting a new trial under Secs. 518 and 520 of the Civil Code. McCall v. Hitchcock, 7 Bush 615, second appeal, 9 Bush 66.

All the assignments of error resolve themselves into one. The evidence heard was not sufficient to authorize the court to grant a new trial. It is sufficient to say that the person on whom the summons was served as agent of appellee, and upon which service the judgment vacated was rendered, testified that he was not and never had *844been the agent of appellee. There was no'Other evidence sufficient to outweigh this positive and unqualified statement.

Judgment affirmed.