Opinion
March 20, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 139
Nathan Davidovich, Denver, for plaintiff-appellant.
Dudley R. Griggs, Denver, for defendant-appellee.
SMITH, Judge.
Denver Casket Company initiated the present suit by personal service upon A. E. Skidmore, president of defendant, Denver Trailer Supply, Inc., with a summons and a copy of the complaint on June 19, 1971. On June 29, 1971, plaintiff filed a complaint alleging that it had purchased a trailer built by the defendant which caught on fire and destroyed a cargo of caskets. Plaintiff further alleged that the cause of the fire was the defendant's negligence in constructing the trailer. Defendant did not file an answer to the complaint or otherwise respond, and a default judgment in favor of the plaintiff was entered against the defendant.
Defendant shortly thereafter filed a motion to vacate the default judgment and an answer denying its negligence and asserting an affirmative defense. Defendant also counterclaimed for the unpaid original price of the trailer. A hearing was held on the motion to vacate the default judgment at which time the defendant presented three witnesses to illustrate the validity of its defense. Mr. Skidmore testified as to his failure to respond to the complaint. At the conclusion of the hearing, the court granted defendant's motion to vacate the default judgment and the matter in due course was set for trial.
At trial, plaintiff presented no evidence, and the court granted defendant's motion to dismiss the complaint. Judgment was entered in favor of the defendant on the counterclaim in the amount of $1,826.22, together with costs. On appeal to this court, plaintiff asserts only one issue. It argues that the trial court abused its discretion in vacating the default judgment.
The record discloses that the motion was timely filed and was based upon C.R.C.P. 60(b), which in pertinent part provides:
'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; . . .'
At the hearing on the motion the court was asked to determine whether or not the failure of the defendant to timely appear was a result of excusable neglect and whether the defendant had a meritorious defense. If both conditions were present, the court properly could vacate the final judgment and allow the matter to proceed in its normal course. Riss v. Air Rental, 136 Colo. 216, 315 P.2d 820; Moskowitz v. Michaels Artists and Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465.
The court is authorized to hold a hearing and even to take oral testimony if if feels it appropriate to determine the validity of the basis on which relief is sought. C.R.C.P. 43(e). At the hearing conducted by the court, the defendant was able to demonstrate by substantial evidence that he did in fact have a meritorious defense and the evidence supports that conclusion.
There was also evidence to support the court's conclusion that defendant's neglect in filing an answer pursuant to the rules was excusable neglect under C.R.C.P. 60(b)(1). Defendant presented evidence that an agent of plaintiff had advised the defendant through its president, Mr. Skidmore, that no claim would be made. When Mr. Skidmore received the summons and complaint, he did not believe them to be official documents because no docket number or other official indicia of the court appeared thereon. The record reflects that had Mr. Skidmore called the court within the first ten days after having been served with a summons and complaint he would have discovered that there was no complaint on file, as the complaint had not been filed until ten days after service of process.
We note that the Colorado Supreme Court on November 2, 1972, amended C.R.C.P. 4(c) by adding a subsection which reads as follows:
Since excusable neglect and a meritorious defense were shown upon a timely motion, we find no abuse of discretion in the action of the trial court in setting aside the default judgment and granting a trial on the merits to the parties. F & S Construction Co. v. Christlieb, 166 Colo. 67, 441 P.2d 656.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.
'(c) Contents of Summons. (1) The summons shall contain the name of the court, the names or designation of the parties to the action, the county in which it is brought, be directed to the defendant, state the time within which the defendant is required to appear and defend, and shall notify him that in case of his failure to do so, judgment by default will be rendred against him. If the summons is served without a copy of the complaint, or by publication, the summons shall briefly state the sum of money or other relief demanded. If an execution is sought against the body of defendant, the summons shall state that the action is founded upon tort. The summons shall, in the signature element thereof, contain the address of the plaintiff's attorney, if any, and if not, the address of the plaintiff.
(2) The summons shall contain on its face the following statement: 'Warning: If this summons does not contain the docket number of the civil action, the complaint may not now be on file with the clerk of the court. The complaint must be filed within ten days after the summons is served, or the action may be dismissed without notice upon your proper request to the court. Information from the court concerning this civil action may not be available until ten days after the summons is served."
This amendment became effective January 1, 1973.