In re the Estate of Unpingco

DECISION AND ORDER

This matter came for hearing on April 14, 1980 to consider Respondent Juan U. Rivera's motion to set aside the previous order granted Petitioner on February 28, 1980, directing Respondent to convey certain real property to the Petitioner, and to grant a hearing on Petitioner's motion.

Respondent makes this motion for equitable relief to have an adverse judgment because his attorney was not served with notice of hearing and, as a result, did not appear. The above order was then entered against Respondent. Both sides have submitted conflicting affidavits on the issue of service.

A judgment may be vacated pursuant to Code of Civil Procedure §473, which states:

"... The Court ... may upon such terms as may be just, relieve a party or his legal representative, from, a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect ..."

In various cases relief from default judgment can be granted where the defense counsel failed to appear because he *101did not receive a notice of the trial from the opposing attorney due to clerical error. 21 A.L.R. 1255. In the case of Yeck v. Department of Labor & Industries, 27 Wash, 2d 92, 176 P.2d 359, the court set aside a default judgment against the defendant where, through error on the part of both the defendant's employees and the attorney general's staff, notice was not received by the defendant informing him of the time for hearing.

It appears clear that the circumstances surrounding the present motion creates a sufficient doubt in the Court's mind as to whether or not notice was in fact duly made. Both counsels have submitted affidavits from their respective secretaries, as well as oral testimony, indicating an unresolvable discrepancy in the facts.

The Court believes equity can best be served by vacating the previous order directing Respondent to convey certain real property, and by allowing Respondent to present the merits of his case at hearing.

IT IS HEREBY SO ORDERED that Respondent's motion to set aside the previous order be granted. Hearing on said motion is set for the 8th day of May, 1980 at 8:30 A.M.

IT IS SO ORDERED.