Opinion · Colorado Court Opinions

PEOPLE IN INT. OF J.M.W., 36 Colo. App. 398 (1975)

People of the State of Colo., In the Int. of J.M.W., Upon thePetition of D.G.W., & Concerning R.F., 542 P.2d 392 (Colo. App. 1975)

Type: Opinion
Court: Colorado Court Opinions
Jurisdiction: Colorado
Date: 1975-09-16
Topic: general

PEOPLE IN INT. OF J.M.W., 36 Colo. App. 398 (1975) (542 P.2d 392) The People of the State of Colorado, In the Interest of J.M.W., Upon thePetition of D.G.W., and Concerning R.F. No. 75-092Colorado Court of Appeals. Decided September 16, 1975.

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PEOPLE IN INT. OF J.M.W.,36 Colo. App. 398(1975)

(542 P.2d 392)

The People of the State of Colorado, In the Interest of J.M.W., Upon the

Petition of D.G.W., and Concerning R.F.

No. 75-092

Colorado Court of Appeals.

Decided September 16, 1975. Rehearing denied October 16, 1975. Certiorari

granted December 1, 1975.

In paternity action, default judgment entered, and respondent appealed refusal of trial court to set that judgment aside on basis that he had not received requisite three-day written notice.Affirmed

1.JUDGMENT—Default — Mere Presence — Not Cognitive Submission —Jurisdiction — Not Entry of Appearance — Three-day Notice — Not Required.Mere presence in court, resulting in a continuance to allow time to employ counsel, does not constitute a cognitive submission to the jurisdiction of the court and is, therefore, not an entry of appearance requiring three-day notice of an application for entry of judgment by default.

2.Default — Motion to Set Aside — Circumstances — Denial — Not Abuseof Discretion.Where at hearing on respondent's motion to set aside default judgment, respondent, who was 19 years old at the time he was served with process, testified that he had received correspondence from petitioner's attorney before the action was commenced, which he had ignored; that he had been served with process, but had not appeared at the first hearing date; that he again received a letter from petitioner's attorney warning him to be present for the upcoming hearing; that he had subsequently thrown the summons and petition away when he was moving; that his father was present with him in court and that both his mother and father were apprised of the proceedings against him; and where the record indicates that respondent was employed during the critical period, but made no effort to obtain counsel until after the entry of default judgment against him;held, trial court's denial of respondent's motion to set aside the judgment was not an abuse of discretion.

Appeal from the District Court of the County of Jefferson, Honorable Robert K. Willison, Judge.Page 399

Sonheim Helm, Dale Helm, Darrel Matteson, for petitioner-appellee.

Ashen Fogel, William L. Keating, for respondent-appellant.

Division II.

Opinion by JUDGE KELLY.

The respondent appeals from the order of the trial court denying his motion to set aside a default judgment in a paternity action. On appeal, respondent contends that he had entered an appearance in the action and that the default judgment was entered without the three-day written notice required by C.R.C.P. 55(b)(2). He further contends that the trial court should have set aside the default judgment for excusable neglect under C.R.C.P. 60(b)(1), or for "other reason[s] justifying relief from the operation of the judgment," as provided in C.R.C.P. 60(b)(5). We disagree and therefore affirm.

The paternity petition was filed in February 1974. Summons was issued and served upon respondent on February 21, requiring him to appear on April 8. When respondent failed to appear, the hearing was continued to April 24. On this date, respondent was present in court without counsel, and, after he advised the court that he intended to employ counsel, the case was continued by the court until July 22, with the admonition that respondent advise his attorney to file responsive pleadings by June 7.

There was no entry of appearance or responsive pleading filed by counsel on respondent's behalf, nor was respondent present on July 22. The case was continued to August 22 for hearing on entry of default judgment. At the August hearing, testimony was presented in support of the petition and the trial court entered a default judgment requiring respondent to pay one-half of petitioner's medical expenses and a fixed amount for monthly child support.

In September, respondent, by counsel, filed a motion to set aside the default judgment on the grounds of mistake, inadvertence and excusable neglect. He also filed a responsive pleading which was essentially aPage 400general denial of the allegations of the petition. At the hearing on his motion, respondent testified that he had not employed an attorney because of lack of funds, that he had "lost" the original documents served upon him, and that he had assumed he would receive some kind of additional notification from the court advising him of the date on which he should be present. Cross-examination of the respondent disclosed an apparent indifference to the seriousness of these judicial proceedings.[1]We agree with petitioner that respondent's presence in court without counsel on April 24 did not constitute an appearance within the meaning of C.R.C.P. 55(b)(2). Ordinarily, a defendant enters a general appearance in a case by seeking relief which acknowledges jurisdiction or by other conduct manifesting consent to jurisdiction.See Stecker v.Snyder,118 Colo. 153,193 P.2d 881. The essence of an appearance as used in C.R.C.P. 55(b)(2) is a cognitive submission of oneself to the jurisdiction of the court.Bankers Union Life Insurance Co. v. Fiocca,35 Colo. App. 306,532 P.2d 57, indicates that the notice rule is intended to protect those who have shown "a clear purpose to defend" the action. Mere presence in court, resulting in a continuance to allow time to employ counsel, does not constitute a cognitive submission to the jurisdiction of the court and is, therefore, not an entry of appearance requiring three-day notice of an application for entry of judgment by default.

Nor can we say that the trial court abused its discretion in refusing to set aside this default judgment, either on the ground of excusable neglect or for other reasons warranting relief from the judgment. Such an abuse must be shown to warrant reversal.See Credit Investment LoanCo. v. Guaranty Bank Trust Co.,166 Colo. 471,444 P.2d 633;F SConstruction Co. v. Christlieb,166 Colo. 67,441 P.2d 656.[2]Respondent was 19 years old at the time he was served with process. His testimony at the hearing on his motion showed that he had received correspondence from petitioner's attorney before this action was commenced, which he had ignored; that he had been served with process, but had not appeared at the first hearing date; that he again received a letter fromPage 401petitioner's attorney warning him to be present for the April 24 hearing; that he had subsequently thrown the summons and petition away when he was moving; that his father was present with him in court at the April 24 hearing; and that both his mother and father were apprised of these proceedings against him.

Additionally, there is evidence in the record indicating that respondent was employed during this period of time, but made no effort to obtain counsel until after the entry of this default judgment against him. There being no reasons proffered to the trial court as grounds for relief under C.R.C.P. 60(b), other than youth and indifference, the trial court's denial of respondent's motion to set aside the judgment was not an abuse of discretion.See Riss v. Air Rental, Inc.,136 Colo. 216,315 P.2d 820.

Judgment affirmed.

JUDGE SMITH concurs.

JUDGE RULAND dissents.

JUDGE RULAND dissenting:

I respectfully dissent.

I do not agree with the conclusion of the majority that respondent failed to enter an appearance in the trial court and that, therefore, he was not entitled to the three-day notice provided in C.R.C.P. 55(b)(2).

Default judgment is a drastic remedy.See Civil Service Commission v.Doyle,162 Colo. 1,424 P.2d 368. The law favors resolution of a disputed claim upon its merits whenever such can be accomplished without unreasonable delay.See Drinkard v. Spencer,72 Colo. 396,211 P. 379;cf. C.F.I. Steel Corp. v. Robb,188 Colo. 155,533 P.2d 491.

Had the respondent in this case advised the trial court on April 24 that he was "entering an appearance" and "desired to file an answer and defend against the claim asserted by petitioner," there is no question that he would have been entitled to the three-day notice.See H.F. Livermore Corp.v. Aktiengesellschaft Gebruder Loepfe,432 F.2d 689(D.C. Cir.). However, he was asked only one question during the hearing relative to defense of the claim,viz., whether he wished to retain counsel to represent him to which he responded in the affirmative, and he was advised to appear againPage 402on July 22 in order to determine how he wanted to "proceed." While we may expect a licensed attorney to advise the court in conformity with the rules of procedure as to whether he appears for a client and whether his client intends to defend against the claim asserted, in my view a layman should not be judged by that standard,see Dalminter, Inc. v. Jessie Edwards,Inc.,27 F.R.D. 491(S.D. Tex.);cf. Temple v. Miller,30 Colo. App. 49,488 P.2d 252, and I would infer from respondent's request for time to employ counsel an intent both to appear in the case and to defend against the claim asserted.

Even assuming that a layman must be held to a standard for entry of appearance in strict conformity with the Rules of Civil Procedure, I would hold that respondent satisfied that requirement in this case. On the premise that the notice requirement of C.R.C.P. 55(b)(2) was adopted to assure timely notice before entry of default judgment to litigants who have indicated an interest in the litigation,see, e.g., Daniels v.Hall's Motor Transit Co.,157 W.Va. 863,205 S.E.2d 412, the test of whether a party has "appeared" under Rule 55(b)(2) is not based on formal requirements of court procedure, but, rather, on whether a party has voluntarily taken some action which shows he has an intention of making some defense.See Smith v. Gadd,280 S.W.2d 495(Ky.Ct.App.). Thus, a party has been held to appear for purposes of Rule 55(b)(2) by entry into a stipulation extending the time for formal answer (without ever appearing before the trial court),see, e.g., H.F. Livermore Corp. v.Aktiengesellschaft Gebruder Loepfe, supra; United States v. Melichar,56 F.R.D. 49(E.D. Wis.), by sending a letter to plaintiff's counsel in response to service of a summons,see Dalminter, Inc. v. Jessie Edwards,Inc., supra, and even by filing a claim with an administrative agency before any action was filed in the trial court.See United States v. One1966 Chevrolet Pickup Truck,56 F.R.D. 459(E.D. Tex.). On the basis of this precedent, I must conclude that respondent entered an appearance in this case sufficient to entitle him to the three-day notice, and that, therefore, the judgment must be set aside.See Civil Service Commissionv. Doyle, supra.

I would reverse the default judgment and remand the cause with directionsPage 403to proceed with trial on the merits based on the issues framed by petitioner's amended petition and respondent's answer thereto.