Davis

Appellant and plaintiff Allen V. C. Davis appeals from an order setting aside a summary judgment against respondents-defendants Jeff S. Kay, Evelyn N. Kay and David J. Kay.

On March 8, 1972, appellant sued respondents for money past due on a note. Respondents were served two days later. On April 26, 1972, no answer having been filed, a default judgment was entered. On May 23, 1972, respondents, on grounds of excusable neglect attributable to their attorneys’ secretary, moved for relief under Code of Civil Procedure section 473. Respondents’ motion was supported by a declaration of the secretary of respondents’ attorney in which she stated that she had mistakenly recorded the wrong date for the answer to be filed. Appellant resisted the motion but in the alternative consented on condition that respondents be required to post a bond as security for a judgment as a condition for relief from the default.

On June 1, 1972, the court granted the motion but did not require a bond. The next day appellant served notice to take deposition on all defendants on June 14, 1972. Respondents’ motion to continue was denied and depositions were taken and completed and on the 22d of June…