Summary
In Sullivan v. International Harvester Co., 86 Colo. 177, 279 Pac. 43, the defendant knew of a judgment entered against him on a cognovit note in September, 1927. He did not tender a motion to set aside the default and an answer until March, 1928. A motion striking the answer thus tendered was sustained.
Summary of this case from Duran v. Adjustment BureauOpinion
No. 12,348.
Decided June 17, 1929.
On motion to strike answer to complaint on cognovit note. Motion granted.
Affirmed. On Application for Supersedeas.
1. JUDGMENT — Cognovit Note — Answer — Apt Time. Where a defendant knew of the judgment entered against him on his cognovit note September 17, 1927, but did not tender an answer in connection with a motion to set aside the judgment until March 26, 1928, a motion to strike the answer because not filed in apt time, held properly granted.
Error to the District Court of the City and County of Denver, Hon. Frank McDonough, Sr., Judge.
Mr. FRANK D. ALLEN, for plaintiff in error.
Mr. F. L. GRANT, for defendant in error.
JUDGMENT on cognovit note in favor of the International Harvester Company of America, against Sullivan, defendant, who brings the case here for review and asks for a supersedeas.
September 16, 1927, the judgment was entered on the complaint and statement of amount due, admitted in a verified answer and confession of judgment, filed by an attorney acting under the power contained in the note. Defendant knew about the judgment the next day after it was rendered.
September 23, 1927, defendant appeared by another attorney, and moved to set the judgment aside on the ground that he had a meritorious defense, but he tendered no answer. He attempted to support the motion by an affidavit which stated the conclusion that there was no consideration for the note as executed.
November 21, 1927, he filed a further affidavit, which set forth his supposed defense more in detail. The court thereupon announced that the motion would be determined when defendant filed his answer.
Defendant then waited four months more, and on March 26, 1928, filed his answer. April 2, 1928, plaintiff moved to strike the same on the ground that it was not filed in apt time. April 16, 1928, the motion was granted. Defendant then waited a year, lacking ten days, and on April 6, 1929, brought the case to this court.
The judgment was regular and we approve of the ruling which directed that the answer be stricken because not filed in apt time. Philbrick v. Conejos County State Bank, 71 Colo. 19, 203 Pac. 678.
Judgment affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ALTER and MR. JUSTICE CAMPBELL concur.