*1 BIELLA, Plaintiff-Appellee Richard Cross-Appellant, DEPARTMENT STATE OF HIGH- Colorado;
WAYS of Colorado, Defendants-Appel-
State of Cross-Appellees.
lants
No. 81CA0245. Appeals, Court II.
Div.
July 1982.
Rehearing Denied July 1982.
Certiorari Granted Oct. 1982.
HOI
not create an
actionable
toward the
plaintiff
part
on the
of the State.
5, 1979,
plaintiff
On March
a
filed
complaint
alleged
that § 35-46—
C.R.S.1973, imposes
a
on the defend-
along
ants to maintain a fence
the highway;
the defendants had violated the stat-
ute; and that
this violation was a direct
of
proximate cause
and
heifer’s death.
alleged
also
that the
had
State
ordinary
failed to exercise
care in inspect-
in,
ing, discovering defects maintaining, and
repairing
the fence. The
claimed
$7,500.
damages
Although
of
both the De-
of
partment
Highways
the State were
and.
of
copy
with a
the complaint,
served
was entered and no
appearance
timely re-
pleading was filed.
sponsive
18, 1979,
April
plaintiff filed a
On
motion
judgment.
copy
for default
No
of his mo-
was served on the
tion
defendants or sent
attorney general.
30, 1979,
April
to the
On
entry of
the court directed
May 10,1979,
the defendants. On
the court
Earnest,
hearing
plaintiff’s
Caplan,
Gerald A.
a
on
motion
Caplan
for de-
&
Boulder,
plaintiff-appellee
judgment,
sent a
cross-ap-
copy
and
fault
and
of this
pellant.
plaintiff only.
notice to the
May
On
1979, hearing
parte
was held ex
plain-
a
on
Gen.,
MacFarlane,
D.
Atty.
J.
Richard F.
judgment.
for default
tiff’s motion
Final
Hennessey,
Gen.,
Deputy Atty.
Mary J.
in
judgment was entered
favor
Gen.,
Sp.
Atty.
Asst.
Mullarkey,
David K.
26, 1980,
$13,500.
in the sum of
on March
Rees,
Gen., Denver,
Atty.
Asst.
for defend-
cross-appellees.
ants-appellants and
25, 1980,
April
the attorney general
On
from
received
letter
counsel
CISE, Judge.
VAN
demanding payment
the judgment.
As a
result,
Defendants,
defendants moved to set
entry
aside
Department
State
of High-
Colorado,
pursuant
55(c)
of default
and
appeal
State
ways
pursuant
of damages
award
from
plain-
court’s
relief
to C.R.
trial
denying
its order
attaching
defendants’ mo-
an answer.
The motions
tiff
judgment.
denied,
to vacate
Plaintiff
as was the
motion for new
were
cross-appeal.
his
did, however,
abandoned
We af-
has
trial. The
reduce the
$13,500
firm.
$7,500,
awarded from
prayed
amount
for in the complaint.
19, 1978,
April
plaintiff’s prize
On
wandered onto
Highway
Colorado
heifer
I.
was killed
an oncoming car. Plain-
first
The defendants
contend that
lawyer
payment
demanded
from the
tiff’s
Colorado,
defective because
claiming
the State
a three-day
the failure to serve
notice as
failed to maintain the fence
sep-
had
55(b)(2).
required by
They argue
plaintiff’s land from the highway.
arated
State,
through
“appeared” within
acting
its
that defendants
insurance
meaning
the rule
ground
denied
because
evidenced
company,
when their
fence law did
desire to defend
insurance
Colorado’s
denied
for the claim. We
as a
company
liability
sanction for failure to make
disagree.
discovery
government
when the
already
approach
a liberal
in
has taken
determining what constitutes
“appear-
regard
Neither do we
the statements
ance” under C.R.C.P.
R.F. v.
in 6 J. Moore's
made
Federal Practice
*3
D.G.W.,
528,
(1977);
192 Colo.
(2d
1976)
55.12
ed.
as being applicable
Jones,
89;
Colo.App.,
v.
644
Best
P.2d
Carls
commentary
here.
relates to the case
Construction,
Gigliotti,
Inc. v.
Colo.App.
40
(Krug)
States,
Rank v.
United
142
535,
(1978). However,
P.2d 1107
577
the
(S.D.Cal.1956), modified,
F.Supp. 1
293 F.2d
is not
cases
sufficiently expan-
rule
these
(9th
1961), modified,
Cir.
340
To be
10
(1963).
entitled to
L.Ed.2d
applica
notice of
S.Ct.
15
In that
judgment under
55(b)(2),
case,
for
C.R.C.P.
judgment
against
default
the United
appearance must be
party’s
responsive to
reopened
was
for
taking
the
of testi-
States
plaintiff’s formal court action. The
the
mony
a right
to establish
to relief. The
knowledge that
the
plaintiff’s
defendants
was in
States
fact
United
notified of this
to resist the suit is
plan
not enough. Baez hearing, but the case
not
does
stand
the
for
Co.,
Kres'ge
518
(5th
F.2d 349
v. S.S.
Cir.
that such notice
proposition
mandatory.
is
cert, denied,
1975),
904,
425 U.S.
96 S.Ct.
A
is not
judg
entitled to a
1495,
H03 hearing admitted evidentiary motion defendants show that their judgment. for default resulted in own carelessness their failure to responsive pleading and that this file accident, about the testified Plaintiff did not constitute carelessness excusable ne- fence, previous of the incidents condition glect. Group Farmers v. Insurance District involving highway other livestock and the Court, and details P.2d 865 department, establishing the heifer and the of his calf she value was Therefore, even though may defendants expert A livestock also testifiéd carrying. a meritorious defense or defenses have damage from the loss as though perhaps pre- defendants would even heifer. vacated, at trial if the vail were evidence, supported by Based on and since excusable neglect, there there made findings and conclusions setting is no basis aside the default. were negligent, defendants Renta], Inc., supra; v. Air Craig Riss *4 proximate was a negligence this cause of Rider, Colo.App., plaintiff’s damages, and that the concluded, Having so we need not address $13,500 of (later sustained re- had remaining the contentions of defendants. $7,500) neg- to caused duced defendants’ This, obviously, was ligence. “evidence sat- Judgment affirmed. the court” and met isfactory require- to the 55(e). TURSI, J., concurs. of C.R.C.P.
ments KELLY, J., is established that there it has Once dissents. procedural granting defect in the no been KELLY, Judge, dissenting. judgment
of the default and that “evidence I respectfully agree I dissent. with the the satisfactory to court” present has been holding majority under I Section and Sec- II, support (see I ed to and II, disagree but with the approach tak- tion question whether, then the supra), becomes III. Section en under 60(b), to C.R.C.P. defendants were pursuant have the to entitled 55(e) provides: C.R.C.P. making determination, this In aside. de judgment by “No default shall be entered are to again be any treated like fendants against an officer or agency of the State Harris, Bostic v. supra. See other unless the of Colorado claimant establish- must only Defendants show not that right or to relief by es his claim evidence a meritorious they have defense but also satisfactory the court.” to within one of the that come reasons to majority The has elected treat the rule. in the The mere specified existence of arguments falling por- as under that State’s defense is not sufficient alone meritorious a 55(e) requiring of C.R.C.P. “evidence vacating the judgment. justify Riss v. to satisfactory to the court.” I have more Rental, Inc., 216, P.2d 820 315 Air portion of the for that rule which concern to the claimant establish his “claim requires 60(b) motion for re In its C.R.C.P. right to relief.” or judgment, from defendants listed sever lief that, It seems to me in order elementary meritorious filed an defenses and claimed al relief,” a “claim a right or to to establish setting them forth. The reason as answer that a claim for relief litigant must show failing answer was inadvert for signed which, exists, case negligence, in the of neglect. support excusable To the ence and showing legal there a was a includes claim, asserted that “the loss of defendants There was duty which was breached. complaint] and served on the the [summons here, be, showing nor could there be- such State, considering the machinery massive of duty runs from the of cause no such State the and number of so State documents the persons in the class. annually, constituted inadvertence served However, position is that neglect.” Plaintiff’s the trial or excusable 35-46— found, C.R.S.1973, agree, we the in the facts creates State 1104 highway for from the of danger
maintain fences
the benefit of owners
trespassing
grazing
adjacent
land
to the
stock
of
wandering
their path
livestock
into
attorney general
highway. The
counters
causing
Smith,
an accident.
Millard v.
imposition
beyond
such a
that the
Colo.App.
30
In
the
purpose of
statute and that
light
purpose
overall
of the fence
general public
imposes
duty rath-
statute
law,
my
it
view that
creating
private
cause of
er than
action.
not
a duty
statute does
create
fence
in the
statute is
disputed
part
Colo-
to the owners of
owed
trespassing
State
Law,
seq.,
§§
Fence
35-46—101 et
rado
C.R.
duty,
Absent this
there
livestock.
can be no
This law codified the common law
S.1973.
constituting negligence
breach
for which
Colorado,
provided
livestock
can
recover.
range
will,
stock
could
at
owners
and farm-
sought to
set aside the
for damage
crops
could recover
to their
ers
under
provisions
of both C.R.
trespassing
only
livestock
if the
caused
55(e)
60(b).
agree
C.R.C.P.
I
with
damaged
land
enclosed
an adequate
majority that the
State’s actions did not
SaBell’s,
Flens,
Inc. v.
42 Colo.App.
fence.
neglect
excusable
purposes
constitute
950
(1979)
Colo.,
aff’d,
599 P.2d
However,
60(b)(1).
C.R.C.P.
(1981);
P.2d
C.R.S.1973.
independent
an
affords
basis
relief from
However,
Supreme
Court has declined
judgment under
protection
to extend
fence law to
Since,
55(e),
under C.R.C.P.
a claimant can-
personal injuries
action for
inflicted
a default
not obtain
animals,
trespassing
holding that
the law
*5
establishing
without
his
by
claim evi-
provides
defense
most
to an owner
“at
court,
satisfactory to
dence
the State
trespassing livestock
the claimant is
[when]
an avenue
must have
of redress when the
to show
his
unable
land was enclosed
fails to establish his
claimant
claim. This
by
sufficient
a fence of
strength
turn
provided
60(b)(5),
avenue
cattle, and
ordinary
by its terms is limited
permits
which
to be
[vegetation].”
Robinson v.
“any
aside
other reason
Kerr,
justifying
144 Colo.
duty is owed to livestock pre- owner to livestock injury to his is not
vent consistent law, the remainder
with fence protecting at landowner from tres-
aims livestock.
passing likely purpose more of §
C.R.S.1973, to protect on the motorists