Opinion
Rehearing Denied May 15, 1973.
Page 540
Johnson, Doty, Johnson & Summers, Bruce R. Johnson, Boulder, for plaintiffs-appellees.
Jonathan C. S. Cox, Denver, for defendants-appellants.
PIERCE, Judge.
Defendants, Stanley Cox and Dollar-Tender, Inc., appeal from denial of their motion to set aside a default judgment entered against them in favor of the plaintiff. At a hearing on the motion, the following facts were established. The defendant, Dollar-Tender, Inc., had purchased materials and services from the plaintiff. Thereafter, a dispute arose between the parties regarding payment for these goods and services. In January of 1971, defendant, Stanley Cox, the president of Dollar-Tender, Inc., met with one of the partners of the plaintiff and attempted to negotiate a settlement. At that time, a payment of $4,000 was tendered to plaintiff. Thereafter, both sides made proposals for the final settlement of the balance due on the bill, but no agreement was reached from these negotiations.
In June of 1971, plaintiff filed suit for the balance due on the bill, and service was complete on the defendant corporation and on defendant Cox by July 1, 1971. Defendants forwarded the summonses and complaints to the attorney who then represented them. At the time of the delivery of the documents to the attorney, the attorney was advised that, in defendant Cox's opinion, the matter had been settled by previous negotiations. As a result, the attorney did not file any pleadings in the action, and the defendants made no further inquiries, either of their counsel or the plaintiffs regarding the matter.
In February of 1972, the default judgment was entered against defendants. Defendant Cox became aware of the default on August 3rd of 1972, whereupon the defendants contacted present counsel and a motion to set aside the default was filed on August 17, 1972. The motion was accompanied by an affidavit from their previous attorney, stating that he had filed no answer in the action, based on information that the claim had been compromised or otherwise settled.
The motion was filed pursuant to C.R.C.P. 60(b) and alleged 'excusable neglect.' After a full hearing on the matter, the court concluded that the neglect was not excusable, and the motion was denied. Defendants appeal and we affirm.
Motions to set aside default judgments are addressed to the sound discretion of the trial court. Moskowitz v. Michaels Artists & Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465. Here, the default resulted primarily from defendant Cox's advice to his attorney that the matter had been settled. The trial court concluded, from competent evidence, that defendants could not reasonably have believed that the matter was settled. Where the taking of a default judgment results, even in part, from the negligence of the party adversely affected, the refusal by a trial court to set aside that judgment is proper, and we perceive no abuse of discretion here. Weeks v. Sigala, Colorado Court of Appeals, 509 P.2d 320 (Announced March 6, 1973).
Judgment affirmed.
ENOCH and SMITH, JJ., concur.