Opinion
June 10, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 884
Keith J. Vandenberge, Denver, for plaintiff-appellee.
Colin M. Clark, P.C., Denver, for defendant-appellant.
BERMAN, Judge.
Plaintiff-appellee, Andrews & Company, commenced this action by the service of a summons and complaint upon Dean Wylie, individually and d--b--a Design Spectrum, on January 10, 1974. The complaint alleged that 'defendants are indebted jointly and severally to plaintiff' for their failure to pay rent due under a lease. Defendant did not file an answer to the complaint or otherwise appear, and on March 7, 1974, upon plaintiff's application for default, judgment was entered by the court against defendant Dean Wylie, individually and d/b/a Design Spectrum.
On March 28, 1974, pursuant to C.R.C.P. 69(d), a citation was issued ordering defendant Wylie to appear with certain specified documents before the court on May 2, 1974. Upon his failure to appear on that date, defendant was arrested pursuant to a bench warrant and a show cause hearing for contempt was held on May 28, 1974. The trial court found that Wylie had willfully disobeyed the dourt's order to appear before it on May 2, 1974, and sentenced him to five days in jail but suspended the sentence. No appeal has been taken from the imposition of this sentence.
On June 28, 1974, Wylie filed a motion pursuant to C.R.C.P. 60(b) to set aside the default judgment. In support of that motion he filed an affidavit and answer denying the allegations of the complaint. He asserted as excusable neglect his assumption that the summons served upon him was not genuine since it did not contain an original signature nor a docket number and his belief that he was not personally liable and therefore was under no obligation to answer. In addition, he alleged, as a 'meritorious defense,' that he was not a party to the lease since he signed as agent and disclosed the identity of his principal and that he had never owned nor done business as 'Design Spectrum.' The court, after the taking of testimony, found that because defendant Wylie had willfully ignored the summons, his neglect was not excusable and denied the motion. Defendant appeals. We affirm.
In order to have a default judgment set aside, the moving party must show (1) that the neglect which brought about the default was excusable, and (2) that he has a meritorious defense to the action, Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820; Moskowitz v. Michaels Artists & Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465.
The determination of whether excusable neglect has been established is clearly within the discretion of the trial court, Mountain v. Stewart, 112, Colo. 302, 149 P.2d 176, and its determination will not be set aside unless it clearly appears that there has been an abuse of that discretion. Moskowitz, supra. We find no such abuse here. A party who has been properly served but who believes that someone else is legally responsible and who, without making any attempt to verify their genuineness, refuses to believe that official court documents are genuine is not excused from timely compliance with the applicable rules of civil procedure. Weeks v. Sigala, 32 Colo.App. 121, 509 P.2d 320.
Since defendant was unable to show excusable neglect, his allegation of a meritorious defense is of no aid to him. Barra v. people, 18 Colo.App. 16, 69 P. 1074; White, Green & Addison Assoc., Inc., v. Monarch Corp., 141 Colo. 107, 347 P.2d 135.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.