C.r.c.p. 55
C.r.c.p. 55
Annotation I. General Consideration. Law reviews. For article, "Judgment: Rules 54-63 ", see 23 Rocky Mt. L. Rev. 581 (1951). For article, "Standard Pleading Samples to Be Used in Quiet Title Litigation", see 30 Dicta 39 (1953). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "Motions for Default Judgments", see 24 Colo. Law. 1295 (1995). Annotator's note. Since this rule is similar to § 186 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Not being present at trial is not an act of default as contemplated under this rule. Kielsmier v. Foster, 669 P.2d 630 (Colo. App. 1983). Judgment entered pursuant to stipulation not default judgment. Where parties deal at arm's length and are represented by counsel who agree to the entry of judgment and there is no fraud on the attorney's part or any professional dereliction of duty inimical to the best interests of the parties, a judgment entered pursuant to their stipulation is not a default judgment, but is a stipulated judgment. In re George, 650 P.2d 1353 (Colo. App. 1982). Allegations in a motion for default judgment under this rule are sufficient to assert a basis for relief for judgment on the basis of fraud. Salvo v. De Simone, 727 P.2d 879 (Colo. App. 1986). Defaulting codebtor allowed to participate in verdict and judgment against bank on bank's counterclaim against debtors since bank failed to apply for an entry of judgment by default against debtor. Pierson v. United Bank of Durango, 754 P.2d 431 (Colo. App. 1988). Motion for default judgment should have been denied where defendant's answer, though filed late, was filed before default had been entered and before the trial court had ruled on the motion for default judgment. Colo. Compensation Ins. Auth. v. Raycomm Transworld Indus., Inc., 940 P.2d 1000 (Colo. App. 1996). Motion to strike answer tantamount to default judgement. When trial court struck defendants' answer brief, it effectively denied them the opportunity to litigate their claim, and such motion was unwarranted by defendants' actions. Pinkstaff v. Black & Decker (U.S.), Inc., 211 P.3d 698 (Colo. 2009). Trial court lacks jurisdiction to enter default judgment against a defendant while an appeal is pending. Anstine v. Churchman, 74 P.3d 451 (Colo. App. 2003). Applied in Petrini v. Sidwell, 38 Colo. App. 454, 558 P.2d 447 (1976); Johnston v. District Court, 196 Colo. 1, 580 P.2d 798 (1978); City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978); Norsworthy v. Colo. Dept. of Rev., 197 Colo. 527, 594 P.2d 1055 (1979); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979); People in Interest of C.A.W., 660 P.2d 10 (Colo. App. 1982); O'Brien v. Eubanks, 701 P.2d 614 (Colo. App. 1984), cert. denied, 474 U.S. 904, 106 S. Ct. 272, 88 L. Ed. 2d 233 (1985); Denman v. Burlington Northern R. Co., 761 P.2d 244 (Colo. App. 1988). II. Entry. Clerk to enter default. Section (a) of this rule provides that the clerk of the court in which an action is pending shall enter default when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957). A trial court may not enter an order of default when a defendant answers and actively litigates but fails to appear for trial. Instead, a court may receive evidence in the defendant's absence and render judgment on the merits. Rombough v. Mitchell, 140 P.3d 202 (Colo. App. 2006). III. Judgment. A. By the Clerk This rule provides that "judgment by default" may be entered by the clerk in those circumstances specifically mentioned. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957). This rule is not in conflict with the constitution as an invasion of the province of the judiciary, the theory being that the judgment is the sentence which the law itself pronounces as the sequence of statutory conditions, and the judgment, though in fact entered by the clerk, is, in the consideration of the law, what it purports on its face to be, namely, the act and determination of the court itself. The courts of many of the states have acted under similar statutory provisions for many years past, and the validity of such judgment has been upheld by repeated decisions of the highest courts of these states. Phelan v. Ganebin, 5 Colo. 14 (1894). This rule was never intended to deprive the court of its power to render a judgment, but only to give the clerk authority to enter it. Griffing v. Smith, 26 Colo. App. 220, 142 P. 202 (1914); Plaza del Lago Townhomes Ass'n v. Highwood Builders, 148 P.3d 367 (Colo. App. 2006). B. By the Court Default judgments are drastic. Default judgments-particularly in those actions where the defendant has answered and the case is at issue-are serious and drastic. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). The ramifications which may ensue may cause loss of time and expense of courts and litigants, as well as, possibly, the denial of inherent rights. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). Before a court enters a default judgment where a defendant has appeared, the requirements of this rule as well as the grounds urged for a default judgment, must be considered with utmost care. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). Before a court enters judgment by default in a case in which the defendant has appeared, the plaintiff must provide the notice required. Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975). No party should be defaulted unless grounds authorizing it are authoritatively established and are so clear that litigants may know without question that they are subject to default if they do not act in a certain manner. Missouri ex rel. De Vault v. Fidelity & Cas. Co., 107 F.2d 343 (8th Cir. 1939). Court not representative of nonappearing party. Where the defendants fail to answer a complaint or to make any effort to appear before the trial court, the trial court is not obliged to, and indeed should not, assume a position adversarial to the plaintiffs and representative of the parties declining to appear. Homsher v. District Court, 198 Colo. 465, 602 P.2d 5 (1979). Plaintiff's motion for default judgment is denied without a hearing where no cause of action is pleaded. Schenck v. Van Ningen, 719 P.2d 1100 (Colo. App. 1986). A judgment by default is not designed to be a device to catch the unwary or even the negligent. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977). A default judgment entered in violation of this rule is void. Salter v. Bd. of County Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). Where the defendant's attorney has filed an appearance with the court, the defendant has appeared for purposes of the notice requirement of this rule, and if a defendant is not served with notice, a default judgment entered against him is void. Schaffer v. Martin, 623 P.2d 77 (Colo. App. 1980). The failure to give required notice is error. The action of a trial court in entering default judgment on its own motion without the requisite three days' notice to defendant constitutes prejudicial reversible error. Emerick v. Emerick, 110 Colo. 52, 129 P.2d 908 (1942). Although it is not specifically assigned as error, nevertheless it is cogent when considering the question of whether the court had the authority to enter the default judgment and also whether it exceeded its jurisdiction in doing so. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). The requirements of this rule have been fastidiously adhered to by the supreme court. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). The requirements of this rule, stating that a three-day written notice of application for default judgment shall be given, have been scrupulously adhered to by this court. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977); Southerlin v. Automotive Elec. Corp., 773 P.2d 599 (Colo. App. 1988). "Appeared in the action" as used in section (b) requires the defendant to communicate with the court in a manner that demonstrates defendant is aware of and intends to participate in the proceedings. Plaza del Lago Townhomes Ass'n v. Highwood Builders, 148 P.3d 367 (Colo. App. 2006). The essence of an appearance as used in section (b)(2) (now (b)) is a cognitive submission of oneself to the jurisdiction of the court. People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975). Ordinarily, a defendant enters a general appearance in a case by seeking relief which acknowledges jurisdiction or by other conduct manifesting consent to jurisdiction. People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975). Presence requesting continuance to employ counsel does not constitute appearance. Presence in court without counsel resulting in a continuance to allow time to employ counsel did not constitute an appearance within the meaning of section (b)(2) (now (b)). People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975). Purpose of the notice requirement of section (b)(2) (now (b)) of this rule is to protect those parties who, although delinquent in filing pleadings within the time periods specified, have indicated a clear purpose to defend by entry of their appearance. Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975); Best v. Jones, 644 P.2d 89 (Colo. App. 1982); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984). Responsive pleading is timely when tendered to the clerk of the court following service of the three-day written notice required pursuant to section (b)(2) (now (b)) of this rule and prior to the entry of default judgment. Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975). Judgment obtained by default is entitled to complete legal effect. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974). The notice provision in section (b) of this rule is applicable to divorce cases. The notice provision in section (b) of this rule as to serving party against whom default judgment is sought with notice of application therefor at least three days prior to hearing thereon applies in divorce cases, and if not followed it is ground for reversal. Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946). The taking of evidence and entry of judgment in the absence of a party who knows his case is set for trial is not proceeding under the default provisions of this rule, but is instead a trial on the merits. Davis v. Klaes, 141 Colo. 19, 346 P.2d 1018 (1959); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). If a party is absent, his failure to appear does not entitle him to additional notice. Davis v. Klaes, 141 Colo. 19, 346 P.2d 1018 (1959); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). It is an abuse of discretion to enter a default judgment without notice to the parties themselves where their attorney has been discharged and has filed an application to withdraw. Colo. Ranch Estates, Inc. v. Halvorson, 163 Colo. 146, 428 P.2d 917 (1967). Notice not necessary where defendants did not make any contact with the court before entry of judgment against them. Realty World-Range Realty, Ltd. v. Prochaska, 691 P.2d 761 (Colo. App. 1984). The supreme court is disinclined to apply technical concepts in determining whether a party has entered an appearance for purposes of the notice requirement of section (b)(2) of this rule. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977). Colorado has taken a liberal approach in determining what constitutes an "appearance" under section (b)(2). Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982). "Appearance" must be responsive to court action. To be entitled to notice of application for judgment under section (b)(2), a party's appearance must be responsive to the plaintiff's formal court action. The plaintiff's knowledge that the defendants plan to resist the suit is not enough. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984). Letter from defendant to court may be sufficient "appearance" under section (b)(2) to entitle the defendant to three days' notice and a hearing. Carls Constr., Inc. v. Gigliotti, 40 Colo. App. 535, 577 P.2d 1107 (1978). Unsigned letter faxed to the court by defendant's son was sufficient "appearance" to trigger the notice requirement of section (b)(2). BS & C Enters., L.L.C. v. Barnett, 186 P.3d 128 (Colo. App. 2008). Corporate officer's attempt to file documents is appearance. An attempt by an officer of a corporation to file documents with the court, while not technically an appearance on behalf of the corporation, is an "appearance" sufficient to trigger the notice requirement of section (b)(2). Best v. Jones, 644 P.2d 89 (Colo. App. 1982). Appearance in small claims court is not appearance in county court. The defendant's appearance by attorney with regard to the same claim in the small claims court and the county court is not sufficient to trigger the requirement for notice under section (b)(2), because the the county court and the district court are separate and distinct courts, and actions in each court are separate and distinct lawsuits. An appearance in the former does not constitute an appearance in the latter. Yard v. Ambassador Bldr. Corp., 669 P.2d 1040 (Colo. App. 1983). Payment of docket fee is not prerequisite to entry of appearance for the purpose of entitling a party to notice before entry of default judgment. Carls Constr., Inc. v. Gigliotti, 40 Colo. App. 535, 577 P.2d 1107 (1978). Right to notice not extinguished by untimely answer. A party's right to notice under section (b)(2) is not extinguished by the fact that his appearance in the action was not made within the time required for an answer under C.R.C.P. 12(a) prior to entry of default. Carls Constr., Inc. v. Gigliotti, 40 Colo. App. 535, 577 P.2d 1107 (1978). Where a party is not represented by a lawyer, a court should be reluctant to foreclose the opportunity of a litigant to present some defense. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977). Judgment of default vacated for failure to give notice required by this rule. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977); Westbrook v. Burris, 757 P.2d 1142 (Colo. App. 1988). Failure to comply with the notice provision of this rule mandates vacation of the entry of default as well as the default judgment, thus rendering further proceedings on the default issue unwarranted. Schaffer v. Martin, 623 P.2d 77 (Colo. App. 1980). Express finding of proper venue not required. The requirement in section (b)(2) that the court "be satisfied" that venue is proper is not tantamount to a requirement that an express, written finding be made. Although it might be preferable to include such a finding in the order granting the default, it is not required by the rule. Wagner Equip. Co. v. Mountain States Mineral Enters., Inc., 669 P.2d 625 (Colo. App. 1983). Improper venue is not a jurisdictional defect that renders a default judgment void. Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992). Hearing on motion for default not necessary where court has all materials required by rules and is satisfied as to sufficiency of service and that defendant is in default. Crow-Watson No. 8 v. Miranda, 736 P.2d 1260 (Colo. App. 1986). No hearing on a motion for default judgment is necessary where only liquidated as opposed to unliquidated damages are involved and defendant, possessed with all of the information available to the court for rendering a judgment, fails to respond. Crow-Watson No. 8 v. Miranda, 736 P.2d 1260 (Colo. App. 1986). Defaulting party has right to appear and present mitigating evidence at hearing on damages. Since, before a default judgment is entered, the court is required to conduct a hearing and take evidence on the amount of damages and section (b)(2) allows the defaulting party to receive notice of and attend such hearing, our adversary system requires that the defaulting party should be allowed to cross-examine witnesses and present mitigating evidence. Kwik Way Stores, Inc. v. Caldwell, 709 P.2d 36 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 745 P.2d 672 (Colo. 1987). A trial court is not required to take evidence before entering a default judgment, assuming that the court is satisfied as to sufficiency of service and the fact that defendant is actually in default. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). A defendant who fails to answer within the required time thereby admits the allegations of the complaint, and allegations deemed admitted need not be proved. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). A court under this rule has wide discretion as to whether a hearing is necessary prior to entry of a default judgment. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). District court is without discretionary power to deny a motion for default judgment where the opposing party, not an agency of the state, fails to comply with a court order requiring that a certain act be done within a specified time and, after expiration of that time, fails to establish that such failure to act was a result of excusable neglect. Sauer v. Heckers, 34 Colo. App. 217, 524 P.2d 1387 (1974). If the court decides to hold a hearing, it also has discretion as to the type of hearing and the degree of its formality. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). While it may be better practice to have a reporter present when testimony is offered prior to the entry of a default judgment, section (b)(2) (now (b)) does not require it. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). It is the duty of the trial court to make sufficient findings to enable the appellate court to clearly understand the basis of the trial court's decision and to enable it to determine the ground on which it rendered its decision granting a default judgment. Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). There must be proof of cause for divorce. The interest of the public in divorce cases, including the possibility of collusive arrangements therein, is such that a divorce may not be granted on a judgment by default without proof of a cause for divorce. Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946). In default cases where testimony is taken, it must be by the court or referee. Hotchkiss v. First Nat'l Bank, 37 Colo. 228, 85 P. 1007 (1906). Default may be entered for failing to give deposition. Judgment by default may be entered against a party who wilfully fails to appear in response to a proper notice to have his deposition taken under this rule. Salter v. Bd. of Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). Judgment by default is the penalty for failure to have desposition taken. Salter v. Bd. of Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). Before this penalty is imposed, there must be given an opportunity to show cause for nonappearance. Salter v. Bd. of Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). Contempt is not a penalty that goes along with default judgment. Salter v. Bd. of Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). It is necessary to assess damages. Upon default in an action where the taking of an account, or the proof of any fact, is necessary to enable the court to assess damages or give judgment, final judgment need not be rendered, and ordinarily is not, until the amount of damages is assessed in some appropriate manner. Melville v. Weybrew, 108 Colo. 520, 120 P.2d 189 (1941), cert. denied, 315 U.S. 811, 62 S. Ct. 795, 86 L. Ed. 1210, reh'g denied, 315 U.S. 830, 62 S. Ct. 913, 86 L. Ed. 1224 (1942). A court is required under this rule to take evidence and to determine the amount of damages. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957). Exemplary damages or execution against the body cannot be awarded in the absence of a specific finding, based upon evidence, that the special circumstances which warrant the extraordinary remedy are in fact present. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957). IV. Setting Aside Default. Law reviews. For comment on Self v. Watt appearing below, see 26 Rocky Mt. L. Rev. 107 (1953). For comment on Coerber v. Rath appearing below, see 45 Den. L.J. 763 (1968). Annotator's note. (1) Since section (c) of this rule is similar to §§ 50(e) and 81 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. (2) For specific grounds and time to vacate default judgments, see the annotations under C.R.C.P. 60. Negligence of counsel generally constitutes "good cause shown" for setting aside a default under section (c). Trujillo v. Indus. Comm'n, 648 P.2d 1094 (Colo. App. 1982). A motion to vacate a default judgment is addressed to the sound discretion of the trial court. Koin v. Mutual Benefit Health & Accident Ass'n, 96 Colo. 163, 41 P.2d 306 (1935); Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176 (1944); Self v. Watt, 128 Colo. 61, 259 P.2d 1074 (1953); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); White, Green & Addison Assocs. v. Monarch Oil & Uranium Corp., 141 Colo. 107, 347 P.2d 135 (1959); Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963); Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967); Gen. Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340 (1968); Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970); Snow v. District Court, 194 Colo. 335, 572 P.2d 475 (1977). The determination of whether to vacate or set aside a default judgment is within the sound discretion of the trial court. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). The underlying goal in ruling on motions to set aside default judgments is to promote substantial justice. Whether substantial justice will be served by setting aside a default judgment on the ground of excusable neglect is to be determined by the trial court in the exercise of its sound discretion. Where that discretion is abused, an appellate court will set aside the trial court's order. Craig v. Rider, 651 P.2d 397 (Colo. 1982); Plaisted v. Colo. Springs Sch. Dist. #11, 702 P.2d 761 (Colo. App. 1985). A motion to vacate a default judgment is addressed to the sound discretion of the trial court. Sumler v. District Ct., City & County of Denver, 889 P.2d 50 (Colo. 1995). Section (c) of this rule and C.R.C.P. 60(b) leave the matter of setting aside default judgments to the discretion of the trial judge. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Same standards apply under section (c) of this rule and under C.R.C.P. 60(b). In considering either type of motion, the trial court should base its decision on (1) whether the neglect that resulted in the entry of judgment by default was excusable; (2) whether the moving party has alleged a meritorious defense; and (3) whether relief from the challenged order would be consistent with considerations of equity. Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997). There is a presumption of regularity applicable to trial court ruling setting aside default. Credit Inv. & Loan Co. v. Guar. Bank & Trust Co., 166 Colo. 471, 444 P.2d 633 (1968). The ruling on setting aside default will not be disturbed unless it appears that there has been an abuse of discretion. Koin v. Mutual Benefit Health & Accident Ass'n, 96 Colo. 163, 41 P.2d 306 (1935); Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176 (1944); Self v. Watt, 128 Colo. 61, 259 P.2d 1074 (1953); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); White, Green & Addison Assocs. v. Monarch Oil & Uranium Corp., 141 Colo. 107, 347 P.2d 135 (1959); Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970). The court must refrain from vacating a default judgment until after the opened judgment results in a new judgment on the merits. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). If a judgment results in favor of the defendant after a trial on the merits, then the original default judgment is vacated-the judgment and judgment lien are dissolved as though they never existed. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). When a judgment is opened the defendant is allowed to answer to the merits of the claim, but the original judgment and judgment lien remain in effect as security pending the resolution of the trial on the merits. Thus, if a judgment results in plaintiff's favor after the original judgment is opened for a trial on the merits, his judgment lien will remain in full force and effect as if the original default judgment had not been opened. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). To warrant reversal it must appear that there was an abuse of discretion. Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963). An abuse of discretion in refusing to set aside a default judgment must be shown to warrant reversal. People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975). Without a clear portrayal of an abuse of discretion, an appellate court will not reverse. Credit Inv. & Loan Co. v. Guar. Bank & Trust Co., 166 Colo. 471, 444 P.2d 633 (1968). An appellate court has never hesitated to overrule a trial court where that discretion has been abused. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). The discretion of the court in determining an application to vacate a default is not a capricious or arbitrary discretion, but is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of justice. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956). The discretion of the court in considering any application to vacate a default is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to serve, and not to impede or defeat, the ends of justice. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). A successor judge may vacate default judgment when the original judge would have had an adequate legal basis to do so. Sumler v. District Ct., City & County of Denver, 889 P. 2d 50 (Colo. 1995). Where there is nothing to indicate that setting aside a default and ordering a trial on the merits would unwarrantedly prejudice plaintiffs, a trial court abuses its discretion in refusing to set aside a default judgment. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). Denial of a motion to set aside entry of default was an abuse of discretion where the motion provided a good faith explanation for defendant's behavior, was filed less than three weeks after entry of default, alleged a potentially meritorious defense, and plaintiff conceded that no prejudice would result from setting the default aside. Singh v. Mortensun, 30 P.3d 853 (Colo. App. 2001). A reason for refusing to set aside a default is defendants' delay in making their motion. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Where a defendant knows of the judgment against him and does not take prompt steps to vacate the same, but makes numerous efforts to satisfy or compromise such judgment, then these actions being contradictory and inconsistent, the refusal of the trial court to set aside the judgment is not an abuse of discretion. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Parties cannot be permitted to disregard the process of the court and after a default judgment is rendered against them come in at their convenience and upon the mere allegation of the existence of a meritorious defense have judgment rendered against them vacated. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); White, Green & Addison Assocs. v. Monarch Oil & Uranium Corp., 141 Colo. 107, 347 P.2d 135 (1959). Where an application to vacate a default judgment is made promptly, a defense on the merits should be permitted. Drinkard v. Spencer, 72 Colo. 396, 211 P. 379 (1922); Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963). Where a stockholder of a corporation, acting promptly after the entry of a default judgment against the latter, presents to the trial court a petition to have the judgment set aside and for leave to file an answer-it appearing from the petition that he was not a party to the original proceeding, that he would be prejudiced by the judgment if it were permitted to stand, and that he has a good defense to the action-the petition should be granted, since a denial constitutes prejudicial, reversible error. Senne v. Conley, 110 Colo. 270, 133 P.2d 381 (1943); Brown v. Deerksen, 163 Colo. 194, 429 P.2d 302 (1967). There must be evidence and justification for any delay. Where a trial court, after a lapse of many years from entry of judgment, sets it aside upon the application of the defendant without evidence or showing of justification for delay in moving to vacate such judgment, the plaintiff is entitled to have original judgment reinstated. Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961). The burden is upon the defendant to establish the grounds on which he relies to set aside a default entered against him by clear and convincing proof. Browning v. Potter, 129 Colo. 478, 271 P.2d 418 (1954); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). A motion to set aside a default judgment is a simple procedural motion taking place within the context of a substantive civil action; therefore, § 13-25-127 , which governs the burden of proof for civil actions, is inapplicable to a motion to set aside a default judgment. Borer v. Lewis, 91 P.3d 375 (Colo. 2004). In enacting § 13-25-127 , the general assembly did not legislatively override the "clear and convincing" burden of proof that has been applied to proceedings to set aside default judgments. To decide otherwise would require the court to find § 13-25-127 unconstitutional as an impermissible infringement on the judiciary's authority to promulgate procedural rules. Borer v. Lewis, 91 P.3d 375 (Colo. 2004). One must show facts that would produce a different judgment. One seeking to have a default judgment set aside must set forth facts which, if established, would produce a judgment other than the one entered. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958); Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963). The court should vacate judgment. Where a default judgment has been entered and it is made to appear that in justice to a defendant he is entitled to be heard, and that the tendered defense, if established, would defeat the action, the trial court should vacate the judgment. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963). Trial court erred in denying defendants' motion to vacate default judgment where defendants received no actual or constructive notice of court order authorizing plaintiffs to amend their complaint, where plaintiffs failed to serve defendants with a copy of the amended complaint after the court's order was issued, and where the allegations in the amended complaint against defendants were the same as in the original complaint and were specifically denied in defendant's answer to the original complaint. Roberts v. Novinger, 815 P.2d 996 (Colo. App. 1991). Where a default judgment is set aside on jurisdictional grounds, it also must be vacated. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). Lack of notice of a default judgment supporting a judgment lien is not a jurisdictional defect that renders the judgment and lien void. First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000). Excusable neglect and meritorious defense ground for setting aside default judgment. The judge was acting within his jurisdiction under this rule when he set aside a default judgment on the ground of "excusable neglect" supported by a specific statement of meritorious defense. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). A meritorious defense must be set forth. It is necessary in a proceeding to set aside a default judgment for the moving party to set forth a meritorious defense. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971). Where a judgment is set aside on grounds other than those challenging the jurisdiction of the court, the judgment is opened and the moving party, after a showing of good cause and a meritorious defense, will be permitted to file an answer to the original complaint and participate in a trial on the merits. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). There is a failure to show good cause without meritorious defense. One against whom a default judgment has been entered must allege a meritorious defense to the plaintiff's claim, otherwise there is a failure to show good cause. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). A meritorious defense does not have to be proven in the hearing to set aside the judgment, for what is necessary is that the defendant allege facts which, if proven true, would alter the judgment entered. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971). A motion to set aside a default judgment should be considered in a manner calculated to promote substantial justice. Burlington Ditch, Reservoir & Land Co. v. Fort Morgan Reservoir & Irrigation Co., 59 Colo. 571, 151 P. 432 (1915); Walker v. Assocs. Loan Co., 153 Colo. 261, 385 P.2d 421 (1963); F. & S. Constr. Co. v. Christlieb, 166 Colo. 67, 441 P.2d 656 (1968); Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). Where it is clear from the absence of evidence in the record that it is impossible to determine if substantial justice has been done, then, in the interest of substantial justice, the plaintiff should be required to prove his claim and the defendant should be given an opportunity to present his defense. Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). Default must be first set aside in proper proceeding. Where a defendant has made default, and judgment has been entered against him, he is not entitled to file pleadings contesting the allegations of plaintiff until his default and the judgment entered thereon have been set aside in a proper proceeding; such a defendant has no standing in court to move for a new trial, either for cause or as a matter of right. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651 (1954). Where defendants' motions do not attack the summons, but are directed instead to the default judgment, praying for an order authorizing the defendants to plead to the complaint, then, by this action, the defendants subject themselves to the jurisdiction of the court. Barra v. People, 18 Colo. App. 16, 69 P. 1074 (1902); Pierce v. Hamilton, 55 Colo. 448, 135 P. 796 (1913); Isham v. People, 82 Colo. 550, 262 P. 89 (1927); Brown v. Amen, 147 Colo. 468, 364 P.2d 735 (1961). A party who seeks to set aside a default judgment and plead to the merits has thereby entered a general appearance and waived the right to question a summons. Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326 (1947). Court acquires jurisdiction, but only to plead or answer, not to validate void default judgment. Since a general appearance has no retroactive force, then where a general appearance is made by defendants in seeking to set aside the default the court therefore acquires jurisdiction over them, but only to grant time to plead or answer to the complaint, and so the general appearance does not validate a void default judgment. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957); Brown v. Amen, 147 Colo. 468, 364 P.2d 735 (1961). Presumption of judgment's validity also includes required notices. The presumption of validity of a judgment entered by a court, which admittedly had jurisdiction of the parties and of the subject matter of the action, carries with it the presumption that notices required by this rule to be given in connection with the entry of judgment by default were complied with. Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961). Lack of notice is a serious procedural error that can, in some instances, violate the due process rights of the defaulting party and, therefore, require vacating the default judgment. First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000). The burden is upon the party seeking to vacate a judgment to overcome the presumption of validity. Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961). Since the motion to set aside arose after the judgment was entered, the burden to prove a lack of jurisdiction because of inadequate service of process is on the party challenging the service of process and the resulting lack of jurisdiction. White Front Auto Sales, Inc. v. Mygatt, 810 P.2d 234 (Colo. App. 1990). Overcoming the presumption of validity is not accomplished by presenting a record which fails to show that notice was served. Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961). Where the notice of trial is served upon an attorney who states that he intends to withdraw from the case, a trial court abuses its discretion in refusing to set aside a default judgment. Colo. Ranch Estates, Inc. v. Halvorson, 163 Colo. 146, 428 P.2d 917 (1967). Review by writ of error is proper procedure. The only proper procedure to secure review of a trial court's order granting an application to set aside a default judgment is by writ of error after final judgment, not prohibition. Stiger v. District Court, 188 Colo. 403, 535 P.2d 508 (1975). Verified answer in sufficient detail to be specifically informative is considered generally to amount to a meritorious defense for purposes of setting aside a default judgment. Coon v. Ginsberg, 32 Colo. App. 206, 509 P.2d 1293 (1973). Gross negligence on the part of counsel resulting in a default judgment is considered excusable neglect on the part of the client entitling him to have the judgment set aside. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). Gross negligence causing default judgment excusable where attorney's gross negligence could not be imputed to his client. Sumler v. District Ct., City & County of Denver, 889 P.2d 50 (Colo. 1995). When no appeal was taken from an order denying a motion to set aside default judgment, all matters in controversy were finally adjudicated and a second motion to set aside the default judgment was a nullity and should be stricken. Federal Lumber Co. v. Hanley, 33 Colo. App. 18, 515 P.2d 480 (1973). A default judgment may only be the subject of collateral attack when the trial court lacked jurisdiction over the parties or the subject matter. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974). Where a default judgment has been entered and made final, it is not a proper subject of collateral attack particularly by strangers to the original action, although the rule prohibiting such attack applies to parties as well. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974). Criteria to be utilized by court in ruling on motion to set aside a default judgment include whether the neglect that resulted in entry of judgment by default was excusable, whether the moving party has alleged a meritorious defense, and whether relief from the challenged order would be consistent with equitable considerations, such as the protection of action taken in reliance on the order and the prevention of prejudice by reason of evidence lost or impaired by the passage of time. A consideration of all these factors together in a single hearing would provide the most complete information upon which to base the exercise of informed discretion and would be the preferable procedure in most cases. Craig v. Rider, 651 P.2d 397 (Colo. 1982). The preferred procedure is to consider all three criteria in single hearing, as evidence relating to one factor might shed light on another and consideration of all three factors will provide the most complete information for an informed decision. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). Motion to set aside default judgment under section (c) of this rule on basis of failure to prosecute and motion to vacate judgment under C.R.C.P. 60(b) on basis of excusable neglect are sufficiently analogous to justify application of same standards to either motion; thus, same three criteria which are legal standard are applicable in both motions. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). Party must justify default before asserting meritorious defense. A party in default is not entitled to have an adverse judgment set aside simply because of a weakness in the other party's judgment; rather, the defaulting party must first stand upon the strength of his own justification for being in default and is not entitled to assert a meritorious defense until he successfully does so. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982). Party's negligence is not "excusable". Negligence on the part of the one of the parties or its employees cannot be deemed "excusable neglect". Wagner Equip. Co. v. Mountain States Mineral Enters., Inc., 669 P.2d 625 (Colo. App. 1983). A stockbroker's failure to file a timely answer was due to his own carelessness and does not constitute "good cause shown" or "excusable neglect". Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). Default judgment was not void because process was adequately served and trial court therefore had personal jurisdiction over defendant. In case where process was properly served upon defendant's registered agent pursuant to C.R.C.P. 4, agent's failure to timely respond because of his own carelessness and negligence did not constitute excusable neglect. Therefore, trial court erred in setting aside the default judgment pursuant to C.R.C.P. 60(b)(1) and (b)(3). Goodman Assocs., LLC v. WP Mtn. Props., LLC, 222 P.3d 310 (Colo. 2010). Excusable neglect means more than ordinary negligence or carelessness; it occurs where there is a failure to take proper steps at the proper time as a result of some unavoidable occurrence. Plaisted v. Colo. Springs Sch. Dist. #11, 702 P.2d 761 (Colo. App. 1985). Lack of prejudice to the plaintiff, absent other factors indicating good cause, is insufficient to show an abuse of discretion in denying a motion to set aside a default. Snow v. District Court, 194 Colo. 335, 572 P.2d 475 (1977); Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). Even though motion of defaulting party contains allegations which, if proven, would constitute a meritorious defense, the trial court is not required to set aside the default judgment when it affords that party a full and fair opportunity to present and argue the alleged meritorious defense and concludes that the defense is not proven. Michael Shinn & Assocs., Inc. v. Dertina, 697 P.2d 422 (Colo. App. 1985). Abuse of discretion found where trial court refused to set aside the damages portion of a judgment. Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). Rule as basis for jurisdiction. Kopel v. Davie, 163 Colo. 57, 428 P.2d 712 (1967). V. Officer or Agency of State. The department of corrections' mere failure to respond timely is insufficient grounds for a default judgment. Since the department is a state agency, the plaintiff must establish his claims with sufficient evidence before a default judgment may enter. Reeves v. Colo. Dept. of Corr., 155 P.3d 648 (Colo. App. 2007). Section (e) does not require an adversary hearing after notice to the state. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982). Evidence held sufficiently "satisfactory to the court" to meet the requirements of section (e). Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982). VI. Judgment on Substituted Service. A plaintiff fails to follow this rule where he does not apply for the judgment by written motion setting forth with particularity the grounds in support of the motion and the relief sought as required by C.R.C.P. 7(b). Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). Where a plaintiff contends that an affidavit, filed when an oral motion for default is made, constitutes the required proof, such is not the case when the affidavit is basically a form statement and has only one phrase relating to the plaintiff's claim for relief, for even if otherwise acceptable, such an affidavit offers nothing as to the nature of the grounds of proof of plaintiff's claim. Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). A default judgment cannot be entered in plaintiff's favor without plaintiff making some showing of the right to such. Osborne v. Holford, 40 Colo. App. 365, 575 P.2d 866 (1978).
For venue, see C.R.C.P. 98; for relief from judgment for mistakes, inadvertence, surprise, excusable neglect, fraud, etc., see C.R.C.P. 60(b); for demand for judgment, see C.R.C.P. 54(c); for evidence, see C.R.C.P. 43.