Oats v. Oats

[419]

Opinion

SPENCER, P. J.

Introduction

Defendant Michael William Oats appeals from an order denying his motion to set aside a judgment entered on December 15, 1981, pursuant to an arbitration award filed November 13, 1981.

Statement of Facts

On April 19, 1977, plaintiff Nancy M. Oats, by her guardian ad litem Martha Oats, filed a personal injury complaint arising out of an automobile accident. Defendant answered, after which the superior court found the amount in controversy did not exceed $15,000 and ordered the matter into arbitration on July 15, 1981. It was stipulated that the Honorable John J. Donnellan would serve as arbitrator.

An arbitration hearing was held on November 6, 1981. Thereafter, on November 13, Judge Donnellan executed and filed an award in favor of plaintiff; no proof of service of the award on the parties was attached and the parties did not, in fact, receive notice of the award at this time. On December 4, 1981, the superior court arbitration clerk served copies of the award on the parties by mail, and filed a proof of service attesting to that fact.

Defendant served on plaintiff by mail a request for a trial de novo and submitted the same to the superior court on December 17, 1981; the request was filed on December 21. On December 15, 1981, the clerk of the superior court served on the parties by mail notice of entry of judgment.

Defendant moved to set aside entry of the judgment on the ground defendant had filed a request for trial de novo within 20 days of service of the arbitration award. The motion was taken off calendar for failure to appear and subsequently refiled. Following a hearing on April 6, 1982, the motion was denied.

Contention

Defendant contends the trial court erred in denying his motion to vacate entry of the judgment, in that a lodging with the court of an arbitration award,

sans

proof of service and