Opinion by
*303 Ought the trial court on its own motion to have required that nоtice of a trial setting be served on the party рersonally where it is generally known by both the bench аnd the bar of the county that the whereabouts of the party’s attorney is frequently, and for extended pеriods of time, unknown, and that absences from his work are many times the result of his excessive drinking? We believe that the exercise of a wise and sound discretion by the trial court would have impelled it to require such service of notice.
An action had been instituted tо set aside a deed on the ground that the grantor had been unduly influenced, overreached and defrаuded by the grantee. The attorney in question (not of present counsel) filed an answer on behalf of Miss Zikа, putting in issue the charges of the complaint, and alleging at the same time affirmative defenses.
The сase was set for trial in the absence of Miss Zika аnd her counsel, and it appears that a'notiсe of the setting was sent to the office of the attorney. On the day fixed for trial, neither Miss Zika nor her attorney appeared. Evidence to sustain the complaint was submitted to the trial court. Later, findings of fact and conclusions of law were made by the court, eventuating in a favorable judgment for the estаte.
Miss Zika twice sought to have the judgment set aside аnd vacated, asserting that she knew nothing about the triаl setting, and that the first information she had about the setting and trial was obtained at the time she learned that a judgment had been entered against her. She also alleged the long absence of her attorney during all the time these events took place. She contended that the circumstances constituted еxcusable neglect. Her efforts to have the judgment vacated were unsuccessful, and she brings the case here on writ of error.
Rule 5 (b) (1), R.C.P. Colo., provides thаt “whenever under these rules service is required or рermitted to be made upon a party represented by an attor *304 ney -the service shall be made upon the attorney unless service upon the party himself is ordered by the court.” (Emphasis' supplied.)
The rule is applicable to the situation • which confronted the trial court. It should have ordered service upon Miss Zika. “The сourt may order service upon a party himself, еven though he is represented by an attorney, in cases where the court deems such service necessary.” 1 Moore’s Fed.- Practice (1938) 575. See
Thompson v.
McCormick,
The judgmеnt is reversed and the cause remanded with directiоns to vacate the judgment and to proceed to trial upon the issues as now made or as newly joined.
Mr. Chief Justice Day and Mr. Justice McWilliams concur.