Security State Bank of Sterling v. Weingardt

• Decision Date: 01 March 1979
• Docket Number: 78-300,Nos. 77-1115,s. 77-1115
• Citation: 42 Colo.App. 219,597 P.2d 1045
• Parties: The SECURITY STATE BANK OF STERLING, Sterling, Colorado, a Colorado corporation, Plaintiff-Appellee, v. Ronald G. WEINGARDT, d/b/a Rondos Department Store, Martin J. Weingardt, and Dona R. Weingardt, Defendants, v. George E. CLAYTON, Garnishee-Appellant. C & W Developers, Intervenor-Appellant. . II
• Court: Colorado Court of Appeals

Page 1045

597 P.2d 1045

42 Colo.App. 219

The SECURITY STATE BANK OF STERLING, Sterling, Colorado, a Colorado corporation, Plaintiff-Appellee, v. Ronald G. WEINGARDT, d/b/a Rondos Department Store, Martin

J. Weingardt, and Dona R. Weingardt, Defendants, v. George E. CLAYTON, Garnishee-Appellant.

C & W Developers, Intervenor-Appellant.

Nos. 77-1115, 78-300.

Colorado Court of Appeals, Div. II.

March 1, 1979.

As Modified On Denial of Rehearing March 29, 1979.

Certiorari Denied July 23, 1979.

Roger L. Nixt, Sterling, for plaintiff-appellee.

John M. Franks, Denver, for garnishee-appellant and intervenor-appellant.

ENOCH, Judge.

Garnishee, George E. Clayton, appeals from a judgment entered by the trial court denying his motion to intervene and his motion to set aside a default. We affirm.

Clayton was a joint venturer with defendant Martin Weingardt in a business known as C & W Developers. Martin Weingardt, as surety for his son, defendant Ronald Weingardt, had judgment of $111,366.62 entered against him on promissory notes payable to plaintiff, the Security State Bank of Sterling (Bank). To collect on its judgment against Martin Weingardt, the Bank caused several writs of garnishment to issue, one of which was served on the Housing Authority of Sterling. The Housing Authority answered, stating that it was holding funds in the approximate amount of $21,134.27, "(o)n a construction contract . . . due to George E. Clayton and Martin J. Weingardt. The exact amount of each is unknown." It was later determined, that the Housing Authority held an amount in excess of the first estimate. The Bank filed a traverse to the answer and requested the court to order that the funds be deposited in the court registry account. A motion by the Housing Authority was granted staying the traverse until independent litigation regarding the funds it held was resolved.

Meanwhile the court issued a summons to Clayton requiring that he set up and defend any claim he might have to the garnished account. The summons was served on Clayton's wife at their apartment in Brighton, Colorado, and she gave him the summons that same day. Clayton failed to respond to the summons, and the court entered an order, later characterized by the court as a default judgment against Clayton, terminating any right, title, or interest he may have had in the construction contract funds. More than a year later, Clayton filed a motion to quash service, alleging the service on his wife was ineffective. That motion was denied, and an appeal to this court on that issue was dismissed because no final judgment had been entered. Subsequently, C & W Developers filed a motion to intervene in the garnishment action between the Bank and the Housing Authority, and Clayton filed a motion to set aside the default judgment entered against him. Both of those motions were denied, and Clayton now appeals all issues.

Clayton first argues that the trial court erred in failing to grant the motion to quash service of process and therefore the court had no jurisdiction to enter judgment against him. We disagree.

C.R.C.P. 4(e)(1) provides that personal service may be made upon a natural person "by leaving a copy or copies thereof at his dwelling house or usual place of abode, with some member of his family over the age of eighteen years . . . ." For the purpose of the statute, "usual place of abode" has been interpreted as the place where a person is actually living at the time service of process is attempted. As such, "usual place of abode" is not necessarily the same as a person's domicile. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967). Clayton asserts that he was a resident of Nebraska, and his Brighton apartment was merely a temporary residence. The trial court, after hearing the evidence, found that Clayton had actually established residence in Brighton. Where, as here, the evidence in the record supports the findings of the trial court, they will not be disturbed on appeal. American National Bank v. Christensen, 28 Colo.App. 501, 476 P.2d 281 (1970). Therefore we must conclude that service on Clayton was effective.

Clayton next asserts that the default judgment against him should have been set aside because the stay of proceedings granted to the Housing Authority applied equally to any action against him. We disagree.

After the Housing Authority listed him as a possible claimant to the funds, Clayton was issued a summons by the court pursuant to C.R.C.P. 103(i). That rule requires that a claimant such as Clayton set up and defend his claim or be thereafter barred. Wh...