Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
John A. Kintzele, Denver, for plaintiffs in error.
Bernard D. Morley, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The above-named parties appear in the reverse order of their appearance in the trial court, wherein plaintiffs in error were defendants below.
Defendants obtained a loan from plaintiff and gave a mortgage on furniture as collateral security for the loan. They subsequently defaulted in the loan payments and took out bankruptcy. Plaintiff was given permission by the bankruptcy court to foreclose its mortgage. In answer to plaintiff's demand for delivery of the furniture, defendants replied through their attorney:
'The furniture no longer exists. The furniture was disposed of as rubbish at the city dump.'
Defendants were served with process on September 20, 1967, but ignored the same and made no effort to defend the action brought against them for wilfully and maliciously injuring and disposing of property secured to plaintiff by chattel mortgage.
Default judgment was entered on May 10, 1968. On May 15, 1968, defendants filed a motion to set aside the default judgment and an answer which consisted of a general denial and an assertion that defendants had taken bankruptcy. They offered no excuse for their allowing the case to go to default. The court denied the motion to set aside the default judgment and the defendants thereupon filed a motion designated, 'Second Motion to Set Aside Default and Default Judgment and Motion for Rehearing on First Motion.'
The first motion and tendered answer supplied no basis on which the court could set aside the default since the defendants has set forth no excuse for their failure to answer the process that had been served upon them, and had set forth no explanation or excuse for the destruction of the property other than a general denial.
There is no authority under the rules of civil procedure for the filing of the second motion. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651.
Before a default judgment can be set aside, defendants must show their failure to answer was due to mistake, inadvertence or excusable neglect or fraud or some other reason justifying relief, R.C.P.Colo. 60(b); and also must allege a meritorious defense, otherwise there is a failure to show good cause. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228. In this instance the defendants did neither.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.