Opinion
No. 18,050.
Decided March 24, 1958.
From denial of a motion to set aside defaults, the defendants bring error.
Writ of Error Dismissed.
1. JUDGMENT — Default — Motion to Vacate — Appeal and Error. Denial of a motion to set aside a default is not a final judgment, hence a writ of error directed to such denial will be dismissed.
Error to the District Court of La Plata County, Hon. James M. Noland, Judge.
Mr. LAVERNE H. McKELVEY, Mr. R. FRANKLIN McKELVEY, for plaintiffs in error.
Messrs. EMIGH EMIGH, for defendant in error.
WE shall designate the parties to this writ of error as they appeared in the trial court where defendant in error was plaintiff, and plaintiffs in error were defendants.
The action was one to quiet title to real estate, and it is admitted that service of summons was had on all defendants who here appear. One of the named defendants in the trial court, Josephine Sage Olguin, was served in the State of Nevada, and filed an answer and cross-complaint. The issues presented thereby have not been tried.
After personal service of summons on the defendants who failed to appear and answer the complaint within twenty days, on motion of plaintiff in the action the defaults of these defendants were entered by the clerk of the district court. Later the defendants, against whom defaults were entered, appeared and moved to set aside the order of default alleging that they and each of them were duly enrolled Indians of the Southern Ute Tribe and that service of summons was had on each of them on the Southern Ute Reservation in Colorado, and for that reason the service of summons was nullity.
The trial court denied the motion to set asides the default and counsel for movants state in their brief "no further pleading, deposition, evidence, or any type of testimony was had further in the action." No judgment or decree in the suit has been entered against the defaulting defendants.
There being no final judgment in the action, a writ of error will not lie. We deem it unnecessary to cite the many authorities in this state which so hold, we merely refer to Schtul v. Christ, 132 Colo. 293, 287 P.2d 661. Accordingly the writ of error is dismissed.