Thompson v. Crescent Mill & Elevator Co.

• Decision Date: 06 December 1909
• Citation: 47 Colo. 4,105 P. 880
• Parties: THOMPSON v. CRESCENT MILL & ELEVATOR CO.
• Court: Colorado Supreme Court

105 P. 880

47 Colo. 4

THOMPSON v. CRESCENT MILL & ELEVATOR CO.

Supreme Court of Colorado

December 6, 1909

Appeal from County Court, City and County of Denver; Chas. McCall Judge.

Action by the Crescent Mill & Elevator Company against W. G Thompson. From an order denying a motion to set aside a default judgment, defendant appeals. Affirmed.

R. H Gilmore, for appellant.

Rogers Ellis & Johnson, for appellee.

STEELE C.J.

The defendant not appearing in the justice's court, default judgment was entered against him. He appealed to the county court. The county court fixed February 1, 1907, at 9:30 o'clock, as the time of the trial. On that day the defendant not appearing, the plaintiff took judgment. On February 4th following, the defendant filed his motion to set aside the judgment. The motion was denied and the defendant appealed to this court.

We are authorized to review the action of the trial court in declining to set aside the judgment when, as in this case, the record of the proceedings culminating in the judgment, as well as those subsequent thereto, are brought here for review. The affidavit in support of the motion to vacate the judgment, sets forth, in substance, that the defendant did not know that the case was set for trial; that on the day of the trial he was pursuing his usual vocation; that he was informed by his attorney that the attorney had communicated by telephone with an employé in the office of the clerk of the county court, and was informed that the case would probably not be tried on February 1st; that the plaintiff had caused the case to be set before Judge McCall's division and was on the board in that division; that affiant was informed that the case was transferred from Judge Lindsey's division without notice to affiant's attorney, and called up in that division, and default taken.

Nothing appears in the record to advise us upon what ground the court based his decision denying the motion to set aside the judgment. We observe, however, that the affidavit contains no statement based upon the affiant's knowledge, except that he was engaged in the pursuit of his usual vocation on February 1st, and did not know that the case had been set for trial for that day. Because of this, the court might have properly rejected the affidavit and denied the motion, but we shall assume that it has been established by proof that the cause was set for trial for February 1st; that some...