Brennan-Tucker Motor Co. v. Tucker

Supreme Court of Colorado

Brennan-Tucker Motor Co. v. Tucker

242 P. 970, 78 Colo. 550, 1926 Colo. LEXIS 269

CourtSupreme Court of Colorado

DecidedJanuary 16, 1926

DocketNo. 11,427.

StatusPublished

This text of 242 P. 970 (Brennan-Tucker Motor Co. v. Tucker) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brennan-Tucker Motor Co. v. Tucker, 242 P. 970, 78 Colo. 550, 1926 Colo. LEXIS 269 (Colo. 1926).

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Opinion

Mr. Justice Burke

delivered the opinion of the court.

These parties appeared in reverse order in the trial court and we hereinafter refer to them as there.

Plantiff sued defendant on a promissory note. Summons , and complaint were served in Denver September 10, 1925, and default and judgment entered October 2, following. Eight days later defendant moved to set aside the default and presented a prima facie meritorious defense. His counsel set forth by affidavit, among other things, his employment in the cause, his instructions to defend, that through error he had noted October 7 on his office calendar as the date for answer, that on said date he prepared and filed answer, and then for the first time learned of his error and that judgment had been entered five days *551 before. Considering these and other allegations we think the court abused its discretion in overruling the motion. Sec. 81, Civil Code p. 116, C. L. 1921; Gumaer v. Bell, 51 Colo. 473, 119 Pac. 681.

The judgment is reversed, and the cause remanded with directions to set aside the default and permit defendant to answer.

Mr. Justice Campbell not participating.

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Mr. Justice Burke

delivered the opinion of the court.

These parties appeared in reverse order in the trial court and we hereinafter refer to them as there.

Plantiff sued defendant on a promissory note. Summons , and complaint were served in Denver September 10, 1925, and default and judgment entered October 2, following. Eight days later defendant moved to set aside the default and presented a prima facie meritorious defense. His counsel set forth by affidavit, among other things, his employment in the cause, his instructions to defend, that through error he had noted October 7 on his office calendar as the date for answer, that on said date he prepared and filed answer, and then for the first time learned of his error and that judgment had been entered five days *551 before. Considering these and other allegations we think the court abused its discretion in overruling the motion. Sec. 81, Civil Code p. 116, C. L. 1921; Gumaer v. Bell, 51 Colo. 473, 119 Pac. 681.

The judgment is reversed, and the cause remanded with directions to set aside the default and permit defendant to answer.

Mr. Justice Campbell not participating.

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242 P. 970, 78 Colo. 550, 1926 Colo. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brennan-tucker-motor-co-v-tucker-colo-1926.

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