Opinion
Joseph L. Sweeney, Denver, for plaintiff-appellee.
Robert R. Hoadley, Jr., Denver, for defendant-appellant.
PIERCE, Judge.
This case was before us at an earlier date and the writ of error was dismissed in September of 1970 for failure of the appellant to have presented a final judgment of the district court for our review. Foltz v. Simmons, Colo.App., 474 P.2d 224 (not officially published). A final judgment has now been entered and the parties have resubmitted the case under the original briefs.
The appellant, Foltz, objects to the jurisdiction of the trial court on the ground that the service of process was improper, and he further maintains that the court abused its discretion in refusing to set aside a default entered against him. We affirm the trial court.
I.
Personal service was effected on Foltz on September 8, 1966, when a copy of the summons and complaint was delivered to his wife at their family residence in Jefferson County. At the time of that service, Foltz was in California on a business trip. There are no facts in the record upon which the court could predicate a finding that Foltz had established either a residence or a domicile in California at that time. There is evidence in the record to the effect that he talked with his wife within a few days after September 8, 1966, and was informed of the service. He returned to his home on September 29, 1966, and made no attempt to contract his counsel or the court regarding the lawsuit. Default judgment was entered against him on October 6, 1966.
On or about December 2, 1966, Foltz learned of the entry of the default and filed a motion to set aside the entry of default and filed an answer that was only a general denial of the allegations in the complaint. No motion to quash service was ever filed on behalf of Foltz nor does his answer in any way challenge the jurisdiction of the court. The question of jurisdiction is raised for the first time on appeal.
The evidence presented, particularly the testimony of Foltz himself, unquestionably established that he was served at his usual place of abode in a manner prescribed by C.R.C.P. 4(e). Even if there had been some defect in service, Foltz entered a general appearance in this action and cannot challenge the trial court's jurisdiction on appeal. Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326.
II.
In order for the trial court to set aside a default judgment, the moving party must make two basic showings: First, that the neglect which brought about the default was excusable; and second, that he has a meritorious defense to the action. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820.
The determination of whether excusable neglect has been established is clearly within the discretion of the trial court. Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176. We find no abuse of discretion here. The only excuse set forth by Foltz is that he believed that other persons or the other defendants would manage the matter on his behalf. The fact that a party who has been properly served believes that someone else has a legal responsibility to appear and defend an action against him does not excuse his non-compliance with the applicable rules of civil procedure requiring a timely response. Moskowitz v. Michaels Artists & Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465.
a meritorious defense is one that sets forth facts which, if proven, would have resulted in a judgment different from the one entered. Temple v. miller, 30 Colo.App. 49, 488 P.2d 252. The general denial filed by Foltz does not constitute a meritorious defense.
Since there was neither excusable neglect nor a meritorious defense asserted, the motion to set aside the default judgment was properly denied.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.