Opinion
Nov. 20, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
H. R. Harward, Canon City, for plaintiff-appellant.
Patti F. O'Rourke, Pueblo, for defendants-appellees.
ENOCH, Judge.
In a trial to the court, Eldon E. Williams, plaintiff-appellant, sought judgment in the amount of $4,547.83, and foreclosure of a mechanic's lien against Jesse Haines and Celeste Haines, defendants-appellees. Plaintiff appeals from the court's judgment which awarded to plaintiff the sum of $395.66. We affirm.
Plaintiff alleges that the trial court erred in granting defendants' motion to set aside a default judgment which was entered after defendants' failure to file a responsive pleading to the complaint. We do not agree.
The summons and complaint were served on defendants on October 5, 1970. A default judgment was entered November 2, 1970, for the full amount prayed for in the complaint. On November 13, 1970, defendants filed a motion to set aside the default judgment under C.R.Civ.P. 60(b) and tendered an answer setting forth several affirmative defenses and counterclaims. Defendants' motion stated that their failure to appear and answer was the fault of their attorney who, because of personal and family emergencies, was absent from her office at the time an answer should have been filed. Defendants' counsel signed the motion and at the hearing assumed full responsibility and explained the personal and office problems which led to the default.
Plaintiff contends that it was error to grant the motion because the asserted 'excusable neglect' was not supported by any evidence either by way of affidavit, sworn testimony or documentation. Plaintiff does not question the sufficiency or the merit of the alleged defenses.
A motion to vacate a default judgment is a matter within the discretion of the trial court and its determination will not be disturbed on review in the absence of a clear abuse of that discretion. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820; Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176. It is preferable to dispose of a case on its merits. If a motion to vacate is promptly made and no unwarranted prejudice will result, it is clearly within the discretion of the trial court to grant the relief requested. Where failure to file a pleading on time was due solely to the conduct of counsel, the statements of counsel made in open court to support the claim of 'excusable neglect' are sufficient basis for a trial court's finding that the neglect was in fact excusable. See Credit Investment & Loan Co. v. Guaranty Bank & Trust Co., 166 Colo. 471, 444 P.2d 633; Coerber v. Rath, 164 Colo. 294, 435 P.2d 228. Furthermore, in the hearing on the motion, plaintiff's counsel declined the opportunity to cross-examine defendant's counsel under oath.
The second question raised in this appeal is whether the trial court erred in denying plaintiff's motion to dismiss defendants' answer and counterclaim for failure to comply with the pre-trial order. Contrary to the provisions of the pretrial order, defendants' counsel failed to furnish to plaintiff copies of 75 photographs. However, four months before trial at a hearing on plaintiff's motion to dismiss, the photographs were delivered to the court for inspection by plaintiff.
There is no allegation nor any evidence in the record that plaintiff was prejudiced or denied a fair trial by defendants' counsel's initial failure to comply with the order. We find no authority and plaintiff cited none to the effect that a party is entitled, as a matter of law, to dismissal of the opposing party's answer and counterclaim for failure to comply with a pre-trial order. 'Pre-trial conferences are not intended to serve as a substitute for the trial of cases, nor to be utilized as a method to by-pass the traditional manner of resolving factual issues.' Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.