noting that a showing of a meritorious defense must be sufficient to demonstrate at least the possibility that a result following trial may be different
How later courts described this case
- noting that a showing of a meritorious defense must be sufficient to demonstrate at least the possibility that a result following trial may be different
- observing that applications for relief against default judgments "are addressed to the discretion the legal discretionof the court in which the default has occurred, and should be disposed of by it as substantial justice may so require"
Written by the judges who cited it.
The opinion
Mr. Justice Gabbert
dissenting:
A motion to set aside a default is addressed to the sound discretion of the trial court, and its judgment thereon will not be disturbed unless it clearly appears that there was an abuse of such discretion. Bannerot v. McClure, 39 Colo. 472 ; Morrell Hdw. Co. v. Princess G. M. Co., 16 Colo. App. 54 .
Tested by this rule, which is universal, not only in this, but in every other jurisdiction, it is manifest the judgment of the district court, refusing to set aside the default, should not be disturbed.
The note sued upon had been in the hands of counsel for plaintiff several months before suit was brought. It appears from the record that through correspondence between counsel now representing the respective parties, Mr. Gumaer had conferred with his present counsel regarding these identical notes something like four months, before action was brought against him. In the affidavit filed in support of the motion to set aside the default, Mrs. Gumaer says that she expected her husband to return to their home at Florence, in this state, about August 10th, or only seven days before the. time for entering an appearance would expire; that he did not return, as expected, and two or three days later, namely, on the. 13th of August, having learned that he would not return for some time, she mailed the papers to him in the City of New York, or only four days before the time when the process served required an appearance to be made. What steps she took, or how she ascertained when he would return is not stated. But four days remained after she started the papers to New York from Florence, in this *489 state. She must be presumed to have known when an appearance was necessary. She does not state she did not. What excuse does she offer for not communicating with her husband regarding the matter in a manner which would have advised him that suit had been commenced, and enabled him to have communicated with counsel in ample time to have prevented a default? On this subject the record is entirely silent. Parties desirous to be relieved on the ground of excusable neglect must show diligence. She has failed to make such a showing. Mr. Gumaer knew of these notes; knew that they were in the hands of attorneys for collection; had employed counsel to represent him; and a brief message by wire from his wife would have sufficiently advised him of the situation, so that he could, by the exercise of reasonable diligence, have taken steps to prevent a default. But the failure to exercise diligence does not stop with the neglect of Mrs. Gumaer. When the papers reached her husband in New York, after being mailed to him from Florence on the 13th of August, common knowledge with respect to the distance between the two points and the time it requires for mail to go from one point to the other warrants the assumption that but little time would remain for entering an appearance after he received the papers by mail, and which, from his own statement, or at least, from the results that followed, did not leave him sufficient time to communicate with his attorneys by mail, and yet, he mailed the papers to them in the city of Denver; but they did not reach their destination until August 19th. What date Mr. Gumaer received the papers he does not state, but contents himself with the statement that he'thought they would reach Denver in time. What excuse does he offer for pursuing this course ? Why did he not wire his attorneys, with whom, months before, he had conferred regarding the notes? The only one offered is, that he made a mistake in *490 computing the time when he would have to appear. How was he mistaken ? That he does not attempt to explain. The rule is, that a party seeking to set aside a default must affirmatively show diligence and state facts which will excuse his neglect. Conclusions and abstract statements which might raise a surmise are not sufficient. The court to which an application to set aside a default is addressed cannot make apologies or invent excuses for a defaulting defendant. He must unequivocally state the facts which clearly establish excusable neglect.
And here it should be observed that the statement in the majority opinion to the effect that the first actual knowledge disclosed by the record that Gumaer had of the pendency of the action, was when he received the papers in New York, is not justified. Mr. Gumaer does not say so, nor any one else for him. True, the record is silent on the subject, but silence does not affirmatively establish a fact which, if material, it is encumbent upon him to prove.
The statement in the affidavit of the defendant to the effect that Mrs. Gumaer was without business experience, and was not sufficiently advised regarding the subject matter of litigation so that she could intelligently consult with counsel, is of no moment. In the first place, it appears that Mr. Gumaer had already consulted counsel with respect to the notes; and, had his wife exercised reasonable diligence in advising him of the service of process, as she was in law bound to do, he could readily have taken steps to prevent a default; and next, the want of knowledge on the part of Mrs. Gumaer as to defenses which could be interposed, did not excuse her from taking steps to have an appearance entered, or notifying her husband in time after service of process, so that he could have communicated with counsel.
*491 ' Reduced to its final analysis, all there is, material, in the affidavit of defendants, is simply this: Mrs. Gumaer held the process until the 10th of August, or until within seven days of the time when appearance would have to be entered, expecting her husband would return about that time. When he did noty she waited three days longer, or until the 13th, only four days before the time for appearance would expire, and then mailed the papers to her husband in New York, when he, in turn, mailed them to his counsel in the city of Denver. They did not reach their destination in time. If this shows such diligence on the part of the defendants as excused their failure to enter an appearance in the time fixed by the process, then they are excused; but it is submitted that it does not. Parties cannot' be permitted to disregard the process of our courts, and after default is taken against them, come in and have it set aside, unless it affirmatively appears that they exercised due diligence to prevent a default. The record in this case not only shows that the court did not abuse its discretion in refusing to set aside the default, but that, had it done so, it would have been an abuse of discretion to the prejudice of the plaintiff.
The judgment of the district court in refusing to set aside the default should be affirmed.