McConnell v. Schultz

• Decision Date: 16 December 1912
• Citation: 128 P. 876,23 Colo.App. 194
• Parties: McCONNELL et al. v. SCHULTZ et al.
• Court: Colorado Court of Appeals

128 P. 876

23 Colo.App. 194

McCONNELL et al. v. SCHULTZ et al.

Court of Appeals of Colorado

December 16, 1912

Appeal from District Court, Teller County; W.S. Morris, Judge.

Action by Carl I. Schultz and another against Sam McConnell and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Thomas & Thomas, of Cripple Creek, for appellants.

Chauncey W. Blackmer, of Cripple Creek, for appellees.

KING J.

Both assignments of error relied on relate to the action of the trial court in overruling the motion of appellants to set aside and vacate the judgment herein rendered against them. In the first assignment the court's action is designated as error; in the second, as an abuse of discretion.

The record shows that issues were joined and the cause ready for trial July, 1905, and that it had been set for trial upon several different dates, but for some reason continued. May 27, 1909, the attorney for plaintiffs notified the attorney for defendants (appellants herein) by registered letter deposited in the post office at Cripple Creek, addressed to said attorney at Alamosa, Colo., containing the notice, that on the 1st day of June application would be made to the court to have the cause set for trial. This notice was received at Alamosa on May 29th, as proven by registry receipt. June 1st the following order was made: "At this day the above-entitled cause is set down for trial on July 20th." On July 23d the record reads: "And thereupon this cause coming on for trial, as by previous assignment made, the plaintiff appears by his counsel, C.W. Blackmer, and the said defendants come not either in their proper person or by counsel, and thereupon testimony is introduced in behalf of said plaintiff, and thereupon it is ordered by the court that judgment be entered herein in favor of the plaintiff," etc. Within 30 days thereafter, and during the same term, motion was made to vacate the judgment, alleging as reason therefor that the same had been taken through inadvertence, surprise, and excusable neglect, and that the defendants had no notice or knowledge that the cause had been set for trial on the 20th day of July, 1909. This application was supported by affidavits of the two defendants, both of whom were then nonresidents of the state, alleging that they had had no notice or knowledge that the cause had been set for trial until after judgment was rendered.

1. The trial court was not compelled, and neither is this court required, to take judicial notice of the distance from Cripple Creek to Alamosa by the sinuous route between those two places, in order to ascertain what time was required to make good service by mail. "When a legal notice is served by mail, the distance which it travels is a question of fact to be determined by proof." Neely v. Naglee, 23 Cal. 152. There is no such proof in this case.

Appellants' attorney had three days' actual notice, which gave ample time for him to be present at the hearing on said application. This is shown by the fact that he received and receipted for the notice at Alamosa within two days from the time it was mailed at Cripple Creek. Whether he was present at the hearing does not affirmatively appear. Every intendment is in favor of the regularity in the proceedings of a court of record, and we must presume that appellants' attorney was present when the record does not disclose anything to the contrary. Error of the court in setting the cause for trial, and thereafter hearing evidence and entering judgment, is not shown.

2. The granting or denying of an application under section 75 of the Civil Code, to relieve a party from a judgment, order, or other proceeding, taken against him through mistake, inadvertence, surprise, or excusable neglect, is expressly made discretionary in the court or judge to whom the same is addressed; and, to warrant interference by appellate courts, a gross abuse of discretion must appear. R.E. Lee S.M. Co. v. Englebach, 18 Colo 106-111, 31 P. 771; Union Brewing Co. v. Cooper, 15 Colo.App 65, 60 P. 946. We think in this case no such abuse has been shown. Appellants' attorney had actual notice of the application to have the cause set for trial. The date fixed for trial was 49 days after June 1st, and the trial took place three...