Rule 55 DEFAULT.

• Jurisdiction: Colorado

Rule 55. Default.

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

(b) Judgment. A party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, guardian ad litem, conservator, or such other representative who has appeared in the action. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 7 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. However, before judgment is entered, the court shall be satisfied that the venue of the action is proper under Rule 98.

(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (b).

(d) Plaintiffs, Counterclaimants, Cross Claimants. The provisions of this Rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54 (c).

(e) Judgment Against an Officer or Agency of the State of Colorado. No judgment by default shall be entered against an officer or agency of the State of Colorado unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.

(f) Judgment on Substituted Service. In actions where the service of summons was by publication, mail, or personal service out of the state, the plaintiff, upon expiration of the time allowed for answer, may upon proof of service and of the failure to plead or otherwise defend, apply for judgment. The court shall thereupon require proof to be made of the claim and may render judgment subject to the limitations of Rule 54 (c).

Source: (b) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b).

Cross references: For venue, see C.R.C.P. 98; for relief from judgment for mistakes, inadvertence, surprise, excusable neglect, fraud, etc., see C.R.C.P. 60(b); for demand for judgment, see C.R.C.P. 54(c); for evidence, see C.R.C.P. 43.

ANNOTATION

I. General Consideration.

II. Entry,

III. Judgment.

A. By the Clerk.
B. By the Court.

IV. Setting Aside Default.

V. Officer or Agency of State.

VI. Judgment on Substituted Service.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Judgment: Rules 54-63", see 23 Rocky Mt. L. Rev. 581 (1951). For article, "Standard Pleading Samples to Be Used in Quiet Title Litigation", see 30 Dicta 39 (1953). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "Motions for Default Judgments", see 24 Colo. Law. 1295 (1995).

Annotator's note. Since this rule is similar to § 186 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Not being present at trial is not an act of default as contemplated under this rule. Kielsmier v. Foster, 669 P.2d 630 (Colo. App. 1983).

Judgment entered pursuant to stipulation not default judgment. Where parties deal at arm's length and are represented by counsel who agree to the entry of judgment and there is no fraud on the attorney's part or any professional dereliction of duty inimical to the best interests of the parties, a judgment entered pursuant to their stipulation is not a default judgment, but is a stipulated judgment. In re George, 650 P.2d 1353 (Colo. App. 1982).

Allegations in a motion for default judgment under this rule are sufficient to assert a basis for relief for judgment on the basis of fraud. Salvo v. De Simone, 727 P.2d 879 (Colo. App. 1986).

Defaulting codebtor allowed to participate in verdict and judgment against bank on bank's counterclaim against debtors since bank failed to apply for an entry of judgment by default against debtor. Pierson v. United Bank of Durango, 754 P.2d 431 (Colo. App. 1988).

Motion for default judgment should have been denied where defendant's answer, though filed late, was filed before default had been entered and before the trial court had ruled on the motion for default judgment. Colo. Compensation Ins. Auth. v. Raycomm Transworld Indus., Inc., 940 P.2d 1000 (Colo. App. 1996).

Motion to strike answer tantamount to default judgement. When trial court struck defendants' answer brief, it effectively denied them the opportunity to litigate their claim, and such motion was unwarranted by defendants' actions. Pinkstaff v. Black & Decker (U.S.), Inc., 211 P.3d 698 (Colo. 2009).

Trial court lacks jurisdiction to enter default judgment against a defendant while an appeal is pending. Anstine v. Churchman, 74 P.3d 451 (Colo. App. 2003).

Applied in Petrini v. Sidwell, 38 Colo. App. 454, 558 P.2d 447 (1976); Johnston v. District Court, 196 Colo. 1, 580 P.2d 798 (1978); City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978); Norsworthy v. Colo. Dept. of Rev., 197 Colo. 527, 594 P.2d 1055 (1979); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979); People in Interest of C.A.W., 660 P.2d 10 (Colo. App. 1982); O'Brien v. Eubanks, 701 P.2d 614 (Colo. App. 1984), cert. denied, 474 U.S. 904, 106 S. Ct. 272, 88 L. Ed. 2d 233 (1985); Denman v. Burlington Northern R. Co., 761 P.2d 244 (Colo. App. 1988).

II. ENTRY.

Clerk to enter default. Section (a) of this rule provides that the clerk of the court in which an action is pending shall enter default when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957).

A trial court may not enter an order of default when a defendant answers and actively litigates but fails to appear for trial. Instead, a court may receive evidence in the defendant's absence and render judgment on the merits. Rombough v. Mitchell, 140 P.3d 202 (Colo. App. 2006).

III. JUDGMENT.

A. By the Clerk.

This rule provides that "judgment by default" may be entered by the clerk in those circumstances specifically mentioned. Valdez v. Sams, 134 Colo. 488, 307 P.2d 189 (1957).

This rule is not in conflict with the constitution as an invasion of the province of the judiciary, the theory being that the judgment is the sentence which the law itself pronounces as the sequence of statutory conditions, and the judgment, though in fact entered by the clerk, is, in the consideration of the law, what it purports on its face to be, namely, the act and determination of the court itself. The courts of many of the states have acted under similar statutory provisions for many years past, and the validity of such judgment has been upheld by repeated decisions of the highest courts of these states. Phelan v. Ganebin, 5 Colo. 14 (1894).

This rule was never intended to deprive the court of its power to render a judgment, but only to give the clerk authority to enter it. Griffing v. Smith, 26 Colo. App. 220, 142 P. 202 (1914); Plaza del Lago Townhomes Ass'n v. Highwood Builders, 148 P.3d 367 (Colo. App. 2006).

B. By the Court.

Default judgments are drastic. Default judgments — particularly in those actions where the defendant has answered and the case is at issue — are serious and drastic. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967).

The ramifications which may ensue may cause loss of time and expense of courts and litigants, as well as, possibly, the denial of inherent rights. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967).

Before a court enters a default judgment where a defendant has appeared, the requirements of this rule as well as the grounds urged for a default judgment, must be considered with utmost care. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967).

Before a court enters judgment by default in a case in which the defendant has appeared, the plaintiff must provide the notice required. Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975).

No party should be defaulted unless grounds authorizing it are authoritatively established and are so clear that litigants may know without question that they are subject to default if they do not act in a certain manner. Missouri ex rel. De Vault v. Fidelity & Cas. Co., 107 F.2d 343 (8th Cir. 1939).

Court not representative of nonappearing party. Where the defendants fail to answer a complaint or to make any effort to appear before the trial court, the trial court is not obliged to, and indeed should not, assume a position adversarial to the plaintiffs and representative of the parties declining to appear. Homsher v. District Court, 198 Colo. 465, 602 P.2d 5 (1979).

Plaintiff's motion for default judgment is denied without a hearing where no cause of action is pleaded. Schenck v. Van Ningen, 719 P.2d 1100 (Colo. App. 1986).

A judgment by default is not designed to be a device to catch the unwary or even the negligent. R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (...