Salle v. Howe

Colorado Court of Appeals

Salle v. Howe

757 P.2d 154, 12 Brief Times Rptr. 518, 1988 Colo. App. LEXIS 87, 1988 WL 55760

CourtColorado Court of Appeals

DecidedApril 7, 1988

DocketNo. 85CA1685

StatusPublished

Cited by5 cases

This text of 757 P.2d 154 (Salle v. Howe) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salle v. Howe, 757 P.2d 154, 12 Brief Times Rptr. 518, 1988 Colo. App. LEXIS 87, 1988 WL 55760 (Colo. Ct. App. 1988).

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Opinion

SMITH, Judge.

The issue presented by this appeal is whether the trial court erred when, in an action to set aside a default judgment, it required defendant to establish, by clear and convincing evidence, the validity of his contention that he had personally not been served with process. We affirm.

[155]*155Our supreme court twice has addressed personally the issue of the burden of proof applicable in proceedings to set aside a default judgment. In Craig v. Rider, 651 P.2d 397 (Colo.1982) the court, citing prior case law, held that the party seeking such relief has the burden of establishing the grounds by “clear, strong and satisfactory proof.” This is tantamount to the “clear and convincing evidence” test applied in the instant case. More recently, in Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986) the court reiterated that the burden is on the movant to establish the grounds for such relief by clear, strong and satisfactory proof. In neither case did the court refer to the 1972 statutory enactment which provides that, notwithstanding any provision of the law to the contrary, the burden of proof in any civil action shall be by a preponderance of the evidence. Section 13-25-127(1), C.R.S. (1987 Repl. Vol. 6A).

Under such circumstances, we presume that, by applying the clear and convincing standard of proof in both Craig and Buck-miller subsequent to the enactment of § 13-25-127(1), our supreme court was cognizant of that statute, but specifically chose to maintain as a matter of procedure, the higher quantum of proof, developed at common law, in proceedings to set aside default judgments.

Accordingly, the judgment of the trial court is affirmed.

BABCOCK and PLANK, JJ., concur.

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SMITH, Judge.

The issue presented by this appeal is whether the trial court erred when, in an action to set aside a default judgment, it required defendant to establish, by clear and convincing evidence, the validity of his contention that he had personally not been served with process. We affirm.

[155]*155Our supreme court twice has addressed personally the issue of the burden of proof applicable in proceedings to set aside a default judgment. In Craig v. Rider, 651 P.2d 397 (Colo.1982) the court, citing prior case law, held that the party seeking such relief has the burden of establishing the grounds by “clear, strong and satisfactory proof.” This is tantamount to the “clear and convincing evidence” test applied in the instant case. More recently, in Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986) the court reiterated that the burden is on the movant to establish the grounds for such relief by clear, strong and satisfactory proof. In neither case did the court refer to the 1972 statutory enactment which provides that, notwithstanding any provision of the law to the contrary, the burden of proof in any civil action shall be by a preponderance of the evidence. Section 13-25-127(1), C.R.S. (1987 Repl. Vol. 6A).

Under such circumstances, we presume that, by applying the clear and convincing standard of proof in both Craig and Buck-miller subsequent to the enactment of § 13-25-127(1), our supreme court was cognizant of that statute, but specifically chose to maintain as a matter of procedure, the higher quantum of proof, developed at common law, in proceedings to set aside default judgments.

Accordingly, the judgment of the trial court is affirmed.

BABCOCK and PLANK, JJ., concur.

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Bluebook (online)

757 P.2d 154, 12 Brief Times Rptr. 518, 1988 Colo. App. LEXIS 87, 1988 WL 55760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salle-v-howe-coloctapp-1988.

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