Opinion
Rehearing Denied July 16, 1970.
Blakemore McCarty, Colorado Springs, for plaintiff in error.
Robert B. Murray, Colorado Springs, for defendant in error.
PIERCE, 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 parties appear here in the reverse order of their appearance in the trial court, and will be referred to hereinafter by their trial court designations.
The matter on appeal is the propriety of a default entered on April 26, 1965, by the court below, upon which judgment was taken on June 15, 1966.
Plaintiff commenced this action against defendant on October 11, 1957, by filing a complaint alleging that defendant was indebted to him in the amount of $19,622.80, and seeking judgment for that amount, plus interest and costs. Defendant was personally served with summons and a copy of the complaint in the State of New York. However, subsequently (on December 23, 1957), defendant filed a motion to quash service.
Thereafter, on May 5, 1961, plaintiff filed interrogatories designed to elicit information on defendant's ties to the State of Colorado for the purpose of showing proper service of summons, to which interrogatories defendant objected on May 23, 1961. Nevertheless, on June 5, 1961, defendant was ordered to answer the interrogatories, which he did not do.
On August 15, 1961, plaintiff filed a motion seeking default or, alternatively, sanctions against defendant for failure to answer the interrogatories. Plaintiff gave notice that he would 'apply to the court To hear and determine (this motion)' (emphasis added)--i.e., rule on its merits--on September 11, 1961. However, when that date arrived the court continued the hearing on plaintiff's motion until September 26, 1961, on which date hearing was held. As a result of the hearing, defendant received until October 31, 1961, to answer the interrogatories. No action was otherwise taken on plaintiff's motion or on defendant's motion to quash, which was also still pending.
On December 5, 1961, defendant belatedly answered the interrogatories. The case remained dormant until March 29, 1965, when plaintiff served defendant with notice that on April 5, 1965, '* * * Plaintiff shall apply to the Court To set for hearing all motions now pending in the above matter, when and where you may attend as you are so advised.' (Emphasis added.) However, on April 5, 1965, this matter was continued until April 26, 1965; no further notice of any variety was given.
On April 26, 1965, the court conducted a hearing and dismissed defendant's motion to quash while granting plaintiff's motion for default, after which the case proceeded with dispatch through steps necessary to perfect and bring appeal.
Defendant maintains the court erred in granting default on this date; we reluctantly agree, considering the time which has elapsed since the commencement of this litigation.
R.C.P. Colo. 55(b)(2) requires that a party against whom default is sought be given at least three days notice of application therefor. The record clearly shows that no such notice was ever given defendant in the instant case. Plaintiff gave notice only that on April 5, 1965, he would Apply for a hearing date on his motion for default. On that date plaintiff apparently did so apply; but that matter was continued until April 26, 1965. The only matter properly before the court to be continued until that later date, however, was plaintiff's application To set a hearing date on all pending motions. Nevertheless, the court proceeded to conduct a hearing On the merits of all pending motions rather than just setting a date therefor.
We therefore hold that the trial court erroneously granted default on April 26, 1965, due to the lack of proper notice.
Under these circumstances, we do not reach defendant's allegations with regard to setting aside the default judgment under R.C.P. Colo. 60(b), which have become moot.
Judgment is reversed and the case remanded for further proceedings.
COYTE and DUFFORD, JJ., concur.