Opinion
No. 76-724
Decided August 18, 1977.
Trial court denied defendant's motion for relief from judgment, and he appealed.
Reversed
1. PRACTICE AND PROCEDURE — Defendant's Attorney — Moved to Withdraw — No Notice — Trial Date — Improper — Proceed to Trial — Meritorious Defense — Judgment — Set Aside. Where defendant's attorney moved to withdraw prior to trial, but defendant was not given notice of the hearing on that motion, and there was no showing that he had notice of the trial date, it was improper for the court to proceed with the trial; consequently, on defendant's subsequent motion for relief from the judgment, he alleged a defense, which if proven, was meritorious and the judgment should have been set aside.
Appeal from the District Court of the County of Adams, Honorable Clifford J. Gobble, Judge.
Berger Rothstein, P.C., David Berger, for plaintiff-appellee.
Nichols Shinn, George J. Nichols III, for defendant-appellant.
The defendant, George Owens, appeals from the trial court's denial of his motion for relief from judgment. We reverse.
On October 15, 1975, the case at hand was set for trial to the court on April 16, 1976. Thereafter, on February 20, 1976, defendant's attorney filed a motion to withdraw in which he contended that defendant had refused to cooperate and refused to pay attorneys' fees and costs then outstanding. The certificate of mailing showed that a copy of the motion was mailed to the attorney for the plaintiff and to defendant on February 11, 1976. The registry of actions shows that on February 20, 1976, the motion to withdraw was set for hearing and confirmed by telephone with plaintiff's attorney for March 5, 1976. The registry of actions further shows that on March 5, defendant's attorney appeared and made a statement to the court, and the motion was granted. A copy of the order was mailed to defendant on March 8, 1976.
Thereafter, plaintiff represented by its attorney appeared for trial on April 16, 1976. Defendant was neither present nor represented by counsel. Plaintiff presented testimony and judgment was entered in its favor.
On June 7, 1976, defendant filed a motion for relief from judgment. At the conclusion of the hearing, the court denied the motion. Testimony at the hearing revealed that defendant, on becoming aware that his then attorney was going to withdraw, contacted another attorney who agreed to represent him. The order allowing the former attorney to withdraw was delivered to defendant's new attorney on April 2. This attorney made no inquiry of the court and acquired no information as to the trial date. This second attorney, because of a conflict in his office, elected to terminate his services for defendant and thereafter, on April 12, defendant's present counsel was retained and was given a list of cases that defendant had pending against him, but no trial date was shown for the within case. Defendant testified that he had not been told and did not know of the trial date of April 16, and there was nothing in the record to show otherwise.
[1] The 18th judicial district local rules of procedure provide only that when an attorney desires to withdraw he shall obtain an order authorizing his withdrawal. However, rules of most other judicial districts contain provisions that no attorney shall be allowed to withdrawn except with the consent of the court and until a notice of the request has been served on the client and opposing counsel. The notice to the client is required to state that the court retains jurisdiction of the client and that the client, to avoid a possible default, has the burden of keeping the court informed where later notices, pleadings, or other process may be served. These rules further provide that the notice shall inform the client of the date and time of any pending proceedings and that the holding of such proceedings shall not be affected by the withdrawal of counsel. See, e.g., Second Judicial District Rule 9(b). The rules for the majority of the districts are designed to insure that a litigant is fully advised of the status of his case before his attorney is allowed to withdraw so that such a withdrawal does not deprive the client of due process.
In the present case defendant alleged a defense, which if proved would be meritorious. He was not given notice of the hearing on the motion of his attorney to withdraw, and there was no showing he had notice of the trial date. Under such circumstances, it was improper for the court to proceed with the trial. Dalton v. People, 146 Colo. 15, 360 P.2d 113.
Judgment reversed and cause remanded for trial on the merits.
CHIEF JUDGE SILVERSTEIN and JUDGE BERMAN concur.