The determination of whether a party's conduct constitutes excusable neglect that justifies relief from a judgment is left to the discretion of the trial court. General Aluminum Corp. v. Arapahoe County District Court, 165 Colo. 445, 439 P.2d 340 (1968); Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955). The decision of the trial court will be upheld unless the court has abused its discretion.
An order granting a motion to set aside an order or judgment is not itself a final judgment. General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340 (1968); Westerkamp v. Westerkamp, 155 Colo. 534, 395 P.2d 737 (1964); Schtul v. Christ, 132 Colo. 293, 287 P.2d 661 (1955). Such an order merely sets the stage for further proceedings.
The decision on whether to set aside an entry of default is left to the sound discretion of the trial court. See General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340; Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175. [2,3] We can detect no abuse of discretion by the trial court in refusing to vacate the entry of default.
[6] Further, the petitioner in this action has failed to sustain its burden of clearly proving that the trial court abused its broad discretion to set aside judgments. Credit Inv. Loan Co. v. Guaranty Bank Trust Co., 166 Colo. 471, 444 P.2d 633 (1968); General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340 (1968); Coerber v. Rath, supra; Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). We therefore hold that the trial court did not proceed "without or in excess of its jurisdiction" in setting aside the judgment as to the Grinnells, and in this regard we discharge the rule.
Aurora v. Congregation, 140 Colo. 462, 345 P.2d 385 (1959); Leonhart v. District Court, 138 Colo. 1, 329 P.2d 781 (1958); Prinster v. District Court, 137 Colo. 393, 325 P.2d 938 (1958). [4] In General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340 (1968), this court held: "Under the provisions of Rule 116(a) above quoted, therefore, the only proper procedure to secure review of a trial court's order granting an application to set aside a default judgment is by writ of error [appeal] after final judgment."
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.
The only proper procedure to secure review of an order setting aside a default judgment is by appeal after final judgment. General Aluminum Corp. v. Arapahoe County District Court, 165 Colo. 445, 439 P.2d 340. C.A.R. 1(a)(1). Appeal dismissed.
'(T)he only proper procedure to secure review of a trial court's order granting an application to set aside a default judgment is by writ of error after final judgment.' General Aluminum Corp. v. Arapahoe County District Court, 165 Colo. 445, 439 P.2d 340. We note that the present attorney of record for plaintiff in error was not the attorney who originated this appeal.