Riss v. Air Rental, Inc.
| Decision Date | 16 September 1957 |
| Docket Number | No. 18031,18031 |
| Citation | 315 P.2d 820,136 Colo. 216 |
| Parties | R. R. RISS, Jr., also known as R. R. Riss, II, Plaintiff in Error, v. AIR RENTAL, Inc., a Corporation, Defendant in Error. |
| Court | Colorado Supreme Court |
Gordon H. Rowe, Jr., Monte Vista, for plaintiff in error.
Hodges, Silverstein, Hodges & Harrington, John Brooks, Jr., Harry S. Silverstein, Jr., Denver, for defendant in error.
In the trial court plaintiff in error, Riss, was one of two defendants in an action brought by defendant in error to recover $1,185.45 for supplies and materials sold and delivered to Wycol Minerals, Inc. and Riss and each of them. We refer to the parties as they appeared in the trial court. Summons was issued and return made by the sheriff showing service on defendant Riss on November 18, 1955. Service on the corporate defendant was had on November 29, 1955. No appearance was entered by either defendant and default judgment was entered against them on December 21, 1955. On March 16, 1956, Riss filed a motion supported by affidavit to vacate the judgment against him, alleging that he had never been served with process in the action and that he 'has a meritorious defense to the cause of action alleged by plaintiff in the complaint in that this defendant did at no time enter into any contract for any service with the plaintiff; that the statement of account herein that this affiant has procured shows that the account was incurred with Wycol Minerals, Inc., Suite 505 Riss Building, Kansas City, Missouri, and in no way shows any claim for any services against this affiant; and that this affiant and defendant is not in any way indebted to the plaintiff herein.' (Emphasis supplied.)
Riss' motion to vacate the judgment was denied by the trial court, and he brings the case here on writ of error. Rule 60(b), R.C.P.Colo., prescribes the conditions upon which the court may relieve a party from a final judgment. Under the record before us it was incumbent upon Riss to prove mistake, inadvertence, surprise or excusable neglect, or that the judgment was void because no service was had upon him.
Upon hearing of the motion Riss testified that he had not discussed a contract for flying service with anyone connected with plaintiff; that he was not indebted to plaintiff for services, and that he had severed his contract with Wycol Minerals, Inc., in June, 1955.
It was also the contention of Riss that he has never been served with summons in the action, and the greater part of the transcript is devoted to this matter. The trial judge interrogated the sheriff who made the return on the summons, as did counsel for the respective parties, and found and held that service was made November 18, 1955, as shown by the return on the summons.
The 'statement of account' referred to in Riss' affidavit was not produced on the hearing.
Commenting with reference to setting aside the default judgment, the trial judge said: 'It would be unusual for this court to invoke its discretionary power to set it aside on the ground of excusable neglect in view of the testimony given by the defendant Riss to the effect he was not served.'
In cases such as this the defendant must establish his grounds for relief by clear, strong and satisfactory proof. Browning v. Potter, 129 Colo. 448, 271 P.2d 418. In Barra v. People, 18 Colo.App. 16, 69 P. 1074, 1075, it was said: 'Parties cannot be permitted to disregard the process of the court, and, after 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.'
In Gumaer v. Bell, 51 Colo. 473, 119 P. 681, 683, this court said:
Here Riss' affidavit...
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Weaver Const. Co. v. District Court In and For El Paso County, 4th Judicial Dist., 27016
...633 (1968); General Aluminum Corp. v. District Court, 165 Colo. 445, 439 P.2d 340 (1968); Coerber v. Rath, supra; Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). We therefore hold that the trial court did not proceed 'without or in excess of its jurisdiction' in setting aside ......
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...under C.R.C.P. 60(b) will not be disturbed on appellate review in the absence of a clear abuse of discretion. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176 (1944). No abuse of discretion has been demonstrated in this The judgm......
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Meyer v. Haskett
...grounds ‘by clear, strong and satisfactory proof.’ ” Craig v. Rider, 651 P.2d 397, 402 (Colo.1982) (quoting Riss v. Air Rental, Inc., 136 Colo. 216, 218, 315 P.2d 820, 821 (1957)). A default judgment may be set aside for good cause. C.R.C.P. 55(c); see C.R.C.P. 60(b). Although good cause ma......
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COLORADO RULES OF CIVIL PROCEDURE
...767 (1961). This rule prescribes the conditions upon which the court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). Court may relieve only a party or a party's legal representative from a final judgment; therefore, garnishor of judgm......
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...(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. Lo......
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Rule 60 RELIEF FROM JUDGMENT OR ORDER.
...767 (1961). This rule prescribes the conditions upon which the court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). Court may relieve only a party or a party's legal representative from a final judgment; therefore, garnishor of judgm......
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RULE 60
...P.3d 1261. This rule prescribes the conditions upon which the court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). Court may relieve only a party or a party's legal representative from a final judgment; therefore, garnishor of judgme......