232 P. 922 | Colo. | 1925
IN the general decree of the district court of Otero county dissolving The Otero Irrigation District, there were several separate clauses each affecting a different respondent. That clause or portion which affects the Michigan Trust Company, a respondent in the proceeding, is considered and determined by us at this term. In the opinion in that case, Michigan Trust Co. v. Otero Irr. Dist.,
In the recital of findings in its decree, the court declared that Dalton's claim was disallowed and a hearing was not granted to him because of his failure seasonably to file his claim. The dissolution statute adopts the rules of pleading and practice of the Code of Civil Procedure and of the Supreme Court not inconsistent with its own provisions. If it be conceded that Dalton, who was one of the qualified electors and landowners of the district who signed the petition to its board which initiated the proceeding, should have filed his claim upon the return day of the notice, we *440 think, under the facts disclosed in his motion to set aside the default, that it was an abuse of discretion by the court to refuse him leave then to file his claim and present proof thereof. No discussion is necessary of the facts set forth in his petition for relief. The Michigan Trust Company did not file its claim on the day fixed for hearing and its default was entered at the same time that default was taken against Dalton. Subsequently, and on November 1 — only seven days before the denial of Dalton's motion — the district court set aside the default of the Michigan Trust Company and permitted it to file its claim and produce proof in its support. True, the application of Dalton was made at a later date but there is nothing in this record which justifies the order of the court in this discrimination against one creditor and favoring another.
This Court and our Court of Appeals have held that the granting or refusing of applications for setting aside a default are largely within the sound legal discretion of the trial court. It was an exceptionally harsh and improper ruling to refuse to set aside Dalton's default merely because he did not present his claim at an earlier time in the proceeding, adjournments of which on several different occasions were taken to hear the various parties interested. Moreover, if the position of defendants in error is sound that Dalton was a party to the proceeding from the beginning because he signed the petition for an election, his default was not entered for he thereby appeared, and only those not appearing were defaulted. We cannot enter a final specific judgment here because no hearing was had below as to the validity of the plaintiff's claim. The district court must set aside this default and give Dalton an opportunity to file his claim and hear proof. If it appears that he is the owner and holder of bonds and coupons of the same series or class as those belonging to the Michigan Trust Company, his claim will be legally established as an indebtedness of the district and payment thereof, or security of such payment to his satisfaction, must be made and *441 the same accepted by him, before dissolution of the district is decreed.
The judgment is reversed and the cause remanded to the district court with instructions to proceed so as to give to the claimant the relief to which he is entitled as stated in this opinion; the decree to be set aside, or so modified that claimant's debt, if established, is paid or secured to his satisfaction.
MR. CHIEF JUSTICE TELLER not participating.