Opinion
Aug. 6, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1293
Fuller & Evans, Dwight A. Hamilton, John F. McNally, Denver, for plaintiff-appellee.
Francis S. Mancini, John Meek, Denver, for defendant-appellant.
RULAND, Judge.
Defendant Louise Appelgren appeals from an order denying her application to set aside a default judgment. We reverse and remand for additional proceedings.
The record reflects the following sequence of events. Plaintiff, Dodge Country, U.S. A., Inc., initiated this action by its complaint in replevin to recover a truck and to recover damages for alleged negligence of Appelgren and defendant Charles F. Robinson in performance of a contract with plaintiff. Defendants, appearing pro se, filed their answer and counterclaim.
In conjunction with various proceedings thereafter, the truck was returned to plaintiff and the case was set for trial on September 4, 1973. On that date, Robinsin appeared but not Appelgren. Following presentation of evidence, a motion by plaintiff to dismiss the defendants' counterclaim was granted, plaintiff reached an agreement for settlement of its claim against Robinsin, and default judgment was entered in favor of plaintiff and against Appelgren in the amount of $1,295.
On September 14, the court mailed the following letter to counsel for plaintiff and Appelgren:
'It has now been reported to this Court that the reason defendant Appelgren did not appear at the trial of this case on September 4, 1973, is that Mrs. Appelgren was in a bad automobile accident and has been confined to Colorado General Hospital ever since. Based upon this information, the Court on its own motion, directs that all further proceedings by stayed until the truth of the matters can be determined.'
Approximately six months after the above-quoted letter was sent, on March 5, 1974, the court ordered that its stay be lifted and that the judgment of September 4, 1973, 'shall enter.'
On November 6, 1974, Appelgren, through counsel filed a verified motion to set aside the default judgment. The motion asserts as meritorious defenses the defenses raised in the original pro se answer to the complaint. The motion also states that Appelgren was in very critical condition following the accident and had not yet recovered from her injury. It further states that Appelgren's injuries prevented her from being able to attend to her personal affairs. The motion concluded:
'At no time was Mrs. Appelgren aware that a judgment had been entered against her. Upon reading the Court's letter of September 14, 1973, Mrs. Appelgren believed, and so advised her counsel, that the trial date had been continued, and that it would be necessary for her to apply to the Court for a new hearing date. It wat not until Mrs. Appelgren contacted . . . (counsel), and counsel reviewed the Court file in this matter, that defendant Appelgren was advised that a judgment had actually entered against her . . ..'
At the hearing on her motion held January 10, 1975, counsel for Appelgren repeated the information set forth in the motion by way of an opening statement. The court advised counsel that it was 'well aware' of what had transpired in the case, that too much time had elapsed since Mrs. Appelgren's release from the hospital, that the court had conferred with Mrs. Appelgren on numerous occasions, and that the default judgment would not be set aside. Counsel then asked permission to place Appelgren under oath and present evidence. This request was denied.
Appelgren retained present counsel, a motion for rehearing was filed, denied, and the present appeal was perfected.
Appelgren relies upon her injuries and the delayed recovery therefrom as a circumstance beyond her control and requests relief under the 'any other reasons' provision of C.R.C.P. 60(b)(5), asserting that her motion to vacate was filed within a reasonable time.
We recognize that a motion to vacate a default judgment is addressed to the sound discretion of the trial court. General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340. However, unless the verified motion of Appelgren fails to present facts sufficient to merit vacating the judgment, the trial court must consider evidence relative to the motion. See Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757. We conclude the allegations of the motion when considered with the court's letter of September 14, state sufficient grounds to vacate the judgment. Hence, the refusal of the court to accept the proffered testimony was error, and the matter must be remanded for a proper evidentiary hearing.
While it may subsequently appear from the evidence that an unreasonable length of time elapsed from the time Appelgren learned that a judgment had been entered until the motion was filed, we are unable to determine such on the record before us. However, in that connection, it may also be necessary to determine whether such delay was attributable to Appelgren, the attorney who filed the motion on her behalf, or some other factor. See Coerber v. Rath, 164 Colo. 294, 435 P.2d 228; Temple v. Miller, 30 Colo.App. 49, 488 P.2d 252.
The judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.
SMITH and KELLY, JJ., concur.