Opinion
Nov. 20, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Morris Rifkin, Robert J. Ring, Denver, for plaintiffs-appellees.
Harold L. Meadoff, Denver, for defendants-appellants.
COYTE, Judge.
Plaintiffs sued defendants on a note and for work and labor performed. Service was had on defendant Robert E. Moody. When he failed to appear, his default was entered, evidence was taken, and judgment was entered on May 26, 1972.
On August 17, 1972, defendants filed a motion to set aside the judgment. They alleged that they had a meritorious defense as shown in the answer attached to the motion. A counterclaim was also filed with the answer, which counterclaim was based upon the alleged negligence of plaintiffs. The answer, in reality, contained merely a general denial. The court summarily denied the motion to set aside the judgment and, in so doing, stated:
'(T)he issue before the Court is whether or not a default judgment should be set aside. The proposed answer and counterclaim and the answer itself is purely a general denial, which files in the face of the facts and is not sufficient as a matter of law to assert a meritorious defense. The matters in the counterclaim are outside the purview of this case, which is solely a suit on a note. The Court is denying the motion to set aside the default. This does not bar the defendant from filing a separate lawsuit on those facts which are alleged in the counterclaim, if he so chooses. That issue is not before the Court.'
In order for the trial court to set aside a default judgment, the moving party must show that the neglect which brought about the default was excusable, and that he has a meritorious defense to the action. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820. '(A) motion to vacate a judgment is addressed to the sound legal discretion of the trial court on the particular facts of the case, and its determination will not be disturbed on review unless it clearly appears that there has been an abuse of that discretion.' Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.