Opinion
No. 12,885.
Decided May 1, 1933.
On motion to set aside default judgment. Motion denied.
Reversed.
1. JUDGMENTS — Default — Motion to Vacate. In an action on note defendant's last day to appear was April 6; default was entered and judgment pronounced April 7; later and on the same day motion to set aside the default and judgment, supported by affidavit and tendered answer was filed. In view of the attending facts it is held that the court committed reversible error in refusing to grant the motion.
Error to the District Court of the City and County of Denver, Hon. Henley A. Calvert, Judge.
Mr. JACOB V. SCHAETZEL, Mr. JOHN H. DENISON, for plaintiff in error.
Mr. CHARLES R. BOSWORTH, Mr. RODERIC J. BOSWORTH, for defendant in error.
PETERSEN brought suit against Beyer on a note of which they were joint makers and recovered a judgment by default for $1,218.11. Error is here assigned upon the refusal of the court to set aside this default and judgment.
It is urged that the default and judgment should have been set aside because the neglect of counsel was excusable and a meritorious defense was presented.
It appears from the record that the last day to answer was Monday, April 6, 1931, and that the default was taken and judgment rendered on Tuesday, the 7th of April at 10 a. m. At 11 o'clock of that same day, Mr. Schaetzel, appearing for plaintiff in error, filed a motion to strike certain portions of the complaint, not then knowing that judgment by default had been entered. Upon being so advised, he immediately filed a motion to set aside the default and judgment supported by his affidavit and a tendered answer. The affidavit discloses that counsel was retained to represent Beyer on April 2, and, being pressed with emergency matters, requested another attorney in his office to prepare the motion to strike certain parts of the complaint. On April 7, 1931, upon learning that his request had not been complied with, Mr. Schaetzel immediately filed a motion to strike and tendered an answer which constituted prima facie a meritorious defense.
In these circumstances, we feel that the court erred in denying defendant's motion to vacate the default and judgment. Gumaer v. Bell, 51 Colo. 473, 119 Pac. 681; Burlington Co. v. Fort Morgan Co., 59 Colo. 571, 151 Pac. 432.
Judgment reversed and cause remanded.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE BUTLER concur.