Mohr v. H. H. Hankins Finance Co.

430 P.2d 85, 163 Colo. 282

• Court: Supreme Court of Colorado
• Decided: July 17, 1967
• Docket: No. 21937
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Moore.

We refer to the parties as they appeared in the trial court where plaintiff in error was defendant and defendant in error was plaintiff.

Plaintiff was the holder in due course of a cognovit promissory note and brought the action against the defendant, as maker of the note, to enforce payment of the balance amounting to $317.78 alleged to be due thereon. A confession judgment was entered.

The defendant moved to vacate the judgment and tendered an answer in which all the allegations of the complaint were denied. As an affirmative defense it was alleged that the original payee was guilty of fraud in the procurement of the note. On the basis of these defenses set forth in the answer tendered by the defendant, the court vacated the judgment and proceeded to trial on the merits.

At the trial, evidence was offered by plaintiff to the effect that the defendant admitted that she had signed the note and delivered it to the payee named therein. The defendant offered no evidence, and was content to rely on the assertion that the plaintiff had failed to establish that she had signed the note. Suffice it to say that this contention is palpably untenable.

The judgment is affirmed.

Mr. Justice McWilliams and Mr. Justice Kelley concur.