1. JUDGMENT — Default — Notice to Defendant — Required — Purpose Stated. Before a court enters judgment by default in a case in which the defendant has appeared, the plaintiff must provide notice to the defendant as required by the Rule of Procedure; and the purpose of this notice requirement is to protect those parties who, although delinquent in filing pleadings within the time period specified, have indicated a clear purpose to defend by entry of their appearance.
Opinion by JUDGE RULAND.
Defendant, Angelo V. Fiocca, appeals from the denial of a motion to vacate a default judgment entered against him. We reverse.
The record reflects the following sequence of events. Plaintiff, Bankers Union Life Insurance Company, initiated this action to recover $750 plus interest, attorney's fees, and costs on a promissory note. Fiocca was served with summons and complaint on September 19, 1973. On October 3, 1973, he filed a motion to dismiss which was denied by the trial court on October 31, 1973. At that time Fiocca was granted 10 days in which to file an answer to the complaint.
Fiocca did not file a timely answer, and Bankers Union therefore filed a motion for default judgment on January 15, 1974, which was granted on the same day. No prior notice of the motion or of the hearing thereon was provided Fiocca. In addition to entering Fiocca's default, the court awarded Bankers Union judgment on the default for principal and interest due on the note as well as court costs.
On March 14, 1974, relying on C.R.C.P. 55(b)(2), Fiocca filed a motion to set aside the default judgment and attached thereto an answer and counterclaim. The trial court set aside the judgment but not the default. Bankers Union then mailed a notice of application for judgment to Fiocca; Fiocca countered with a motion renewing his prior request to file his tendered answer; and, following a hearing thereon, the trial court reentered default judgment for Bankers Union.
Fiocca's motion to vacate default judgment and for a new trial was denied by the trial court, and this appeal is taken therefrom.
Insofar as pertinent here, C.R.C.P. 55(b)(2) provides: "If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application . . . . "
[1,2] Before a court enters judgment by default in a case in which the defendant has appeared, the plaintiff must provide the notice required by C.R.C.P. 55(b)(2). See Civil Service Commission v. Doyle, 162 Colo. 1, 424 P.2d 368; Holman v. Holman, 114 Colo. 437, 165 P.2d 1015. The purpose of the notice requirement is to protect those parties who, although delinquent in filing pleadings within the time periods specified, have indicated a clear purpose to defend by entry of their appearance. See H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C. Cir.). In our view, that purpose is defeated if the failure to give notice results only in vacation of the default judgment and not the entry of default. Such an interpretation relegates the party in default to essentially the same position he finds himself after entry of default judgment under C.R.C.P. 60(b). Accordingly, we hold that a responsive pleading is timely when tendered to the clerk of the court following service of the three-day written notice required pursuant to C.R.C.P. 55(b)(2) and prior to the entry of default judgment.
The judgment is reversed and the cause remanded with directions to reinstate defendant's answer and counterclaim and for further proceedings not inconsistent with the views herein expressed.
JUDGE COYTE concurs.
JUDGE SMITH dissents.