Donald v. Bradt

• Decision Date: 08 October 1900
• Citation: 62 P. 580,15 Colo.App. 414
• Parties: DONALD v. BRADT et al.
• Court: Colorado Court of Appeals

62 P. 580

15 Colo.App. 414

DONALD v. BRADT et al.

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Conejos county.

Action by Charles E. Bradt and others against James F. Donald. From an order refusing to set aside a judgment against defendant he appeals. Affirmed.

Pattison, Waldron & Devine, for appellant.

Z.T Brown and C.A. Merriman, for appellees.

WILSON J.

This was an action in debt by attachment. The complaint contained five counts. The first alleged an indebtedness in the sum of $104 on account of merchandise sold and delivered by plaintiffs to defendant. The four remaining counts were upon various sums of indebtedness alleged to have been on account of the sale and delivery to defendant of goods and merchandise by four other mercantile firms, the several accounts for which had been assigned to plaintiffs' firm. Service was by publication, it being alleged that the defendant had left the state, and could not be found so that personal service could be had upon him. On November 11, 1897, the defendant not appearing, the proper proofs being made, judgment was rendered for the amount claimed in the complaint. On May 3, 1898, nearly six months after the rendition of judgment, defendant appeared by his counsel, and moved to set aside and vacate the judgment under the provisions of Code, § 75. The motion was supported by an affidavit of defendant, to which we will refer hereafter. The motion was denied, and from this defendant appeals.

It is conceded that the granting or denying of such an application under section 75 is, by the terms of the section, made discretionary with the court; and that it has been expressly determined by the supreme court that, although the exercise of such discretion is subject to review, to warrant interference by appellate courts a gross abuse of discretion must appear. Mining Co. v. Englebach, 18 Colo. 111, 31 P 771. It is contended, however, that in cases like the present, where the defendant was a nonresident, and there was no personal service, the court ought to be liberal in vacating the judgment and granting leave to answer. This may be an important factor to consider under certain circumstances, and no doubt would be considered by the trial courts; but even then it is equally true that there must be some showing made that the judgment was improper; that the defendant had been wronged thereby, and that he had a meritorious defense to the action. There must be some facts presented to the court upon which it may base the exercise of its discretion. The mere motion would not and ought not to be sufficient. There must be sufficient showing to the court to demonstrate the possibility, at least, that, if the judgment was vacated, and a new trial had, the result would be different. Any other view of this proposition would tend to obstruct and delay justice rather than to dispense it. The great length of the defendant's affidavit which supported the motion precludes its insertion into this opinion. Taken as a whole, it appears to us to be evasive, and entirely insufficient to have justified the court in granting the motion. On the contrary, after a careful inspection of it, we are of opinion that the allowance of the motion would have been a wrongful exercise of discretion. We shall refer briefly to some portions of the affidavit, so as to make clear our objections. Affiant admits that at the time of the institution of the suit he was indebted to plaintiffs in a sum not exceeding $110, but avers that long prior to the rendition of the judgment this indebtedness had been fully "liquidated, satisfied, and discharged." He does not allege payment, nor state in what manner this liquidation, satisfaction, and discharge had been effected, so that the court might have an opportunity to pass upon it. He makes no reference in any portion of the affidavit to the indebtedness to the four several mercantile firms whose assigned accounts were embraced in four counts of the complaint. He neither acknowledges nor disputes these. Again, he states that, if the judgment is set aside, and he be permitted to appear and answer, "he will be able to defeat the plaintiffs in the said action, and to recover judgment against them for his costs in that behalf expended." He does not submit to the court what his defense would be, nor does he say that he has submitted his case to counsel, and has been by them advised that he has a good and meritorious, or any, defense. He states that not until after the judgment was rendered against him was he informed as to the amount and extent of the claims of the plaintiffs, or the amount of the judgment which they sought to recover. He does not state when this knowledge reached him, and the presumption in such case must be against him, the burden being upon him to show everything that would entitle him to a vacation of the judgment in the exercise of sound discretion by the court. Presumably, therefore, he must have known the amount of the judgment demanded against him very soon after it was rendered. He...