Opinion
May 16, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 355
Cisneros & Huckeby, Richard M. Huckeby, Denver, for plaintiff-appellee.
Stitt, Wittenbrink & Roan, P.C., Philip F. Roan, Denver, for defendant-appellant.
COYTE, Judge.
William R. Soper, one of the defendants, brings this appeal from a judgment entered against defendants.
On February 3, 1966, the defendants executed and delivered a promissory note for $15,000 payable to plaintiff. Defendants Soper and Randolph admitted that they signed as accommodation makers. In December 1966, the plaintiff started voluntary liquidation and a committee was appointed to carry out the liquidation. Plaintiff brought suit on the unpaid note in September 1967. A trial date was set but was vacated when the court was advised that the parties had made an agreement for settlement.
The agreement, which was between plaintiff and defendants Soper and Randolph, provided for payment of $12,160 by Soper and Randolph over a period of time with assignment of rights to Randolph and Soper against the other defendants when the bank had been made whole. The agreement also provided that plaintiff could take judgment against all defendants in the amount owing on the note and then further provided in part.
'Plaintiff agrees that, so long as the payments set forth in the preceding paragraph are made, plaintiff shall refrain from execution and levy as aforesaid, and shall look solely to Sensitronics, Inc. and/or Kenneth M. Droney for satisfaction of said judgment, provided, however, that if the defendants should fail to make any payment promised hereunder when due, this Agreement shall become null and void and Plaintiff may proceed to execute thereon, to take any action reasonably calculated to effect the collection in full of said judgment, and to collect the same from said defendants in full amount, together with such costs and interest as may be by law added thereto.'
Pursuant to the agreement, defendants Soper and Randolph made payments of $1022.29, $1055.80, and $2000 on May 1, 1968, June 6, 1968, and November 20, 1968, respectively, and then no further payments were made by them. In January 1969, plaintiff filed a motion for the entry of a default judgment. A hearing date was set and vacated. A later date for the court to consider all matters pending before it was set for October 14, 1969, was vacated and reset for November 12, 1969, and finally held on November 12, 1969. At that time a signed copy of the agreement was filed with the court. The court took the matter under advisement and subsequently entered a judgment on December 8, 1970, against defendants Randolph and Soper, jointly and severally, in the amount of $8081.10, which was the amount remaining unpaid under the agreement plus 6% Interest from November 20, 1968, and costs.
Soper alleges that the trial court erred and that the judgment should be reversed because: (1) the plaintiff was not the proper party in interest, (2) the note was invalid, (3) the agreement was invalid, and (4) the entry of judgment was given without the required notice and opportunity to defend. We agree with the trial court and affirm the judgment.
I.
Defendant contends that plaintiff is not the proper party in interest because it did not establish its capacity to carry on the suit. At one point, defendants' counsel requested a delay to allow time for him to amend the answer to include this defense. The amendment was never made. C.R.C.P. 9(a)(1) provides that capacity to sue need not be pleaded specially, but when one desires to raise the issue it must be done by a specific negative averment. Fredericksen v. City National Bank, 70 Colo. 553, 203 P. 659; Bromley v. Ferguson, 70 Colo. 398, 202 P. 706. Since defendant did not raise this issue in his pleadings in the trial court, it cannot be raised here.
II.
Defendant asserts the invalidity of the agreement and also of the note underlying the agreement. Any defenses defendant may have had on the note were waived by the execution of the agreement, if the latter is valid. The agreement is attacked on the grounds that it was incomplete, that it was not delivered, and that the court ordered defendants to produce the agreement, thereby making it involuntary. There was confusion regarding the location of the signed original agreement, but defendants prior to this appeal did not dispute the existence of a written agreement. At the February 14, 1969, hearing counsel for defendants had in his possession an agreement signed by the defendant Soper and plaintiff. There was also evidence that defendant Randolph had signed a copy of the agreement. On February 28, 1969, defendants' attorney produced for the court a copy of the agreement signed by both defendants. The trial court did not force an unwilling party to sign an agreement but rather ordered the party insisting upon its existence to produce the document. Defendants made payments pursuant to the agreement. Though not filed with the court until November 12, 1969, a valid and voluntary agreement existed between the parties; it was so treated by them and was enforceable by the trial court. Goltl v. Cummings, 152 Colo. 57, 380 P.2d 556.
III.
Defendant asserts that the judgment was a default judgment entered without the three-day notice required by C.R.C.P. 55(b)(2), and claims that this irregularity deprived defendant of his opportunity to be heard.
The pertinent clause in the agreement reads as follows:
'Defendants agree that Plaintiff may proceed to take judgment against Defendants jointly with Sensitronics, Inc. and Kenneth M. Droney in such amount as the Court may award, but approximately in the amount set forth above.'
In Kopel v. Davie, 163 Colo. 57, 428 P.2d 712, the parties stipulated to entry of judgment. The Supreme Court, refusing to vacate and set aside the judgment, held:
'Under the circumstances of this case, we are dealing with a situation where parties dealing at arm's length have stipulated for the entry of a judgment. It is not a default judgment in the true sense of the word, but a stipulated judgment; . . ..'
On February 14, 1969, the parties were ordered to obtain and submit the information necessary to enable the ocurt to '. . . proceed to enter judgment in accordance with the terms of the agreement . . ..' Defendant was given adequate notice of all hearings and was represented by counsel at the November 12, 1969, hearing on plaintiff's motion for default and judgment. The judgment was entered on December 8, 1970, in accordance with the stipulation. Defendant's allegation of default judgment without notice is not substantiated by the circumstances of the case.
Defendant further contends that there was insufficient evidence of his non-compliance with the agreement to justify entry of judgment against him. However, an examination of the record compels a conclusion contrary to this contention of defendant.
Since the claim upon which plaintiff asserts cross-error was not submitted to the trial court for consideration and no notice of appeal was filed as is required by C.A.R. 4(a), the asserted cross-error will not be considered.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.