(470 P.2d 916)

AA Construction Company, Denver Decorating Company, and Carl E. Simon, d/b/a Lite House Electric v. Joseph B. Gould

No. 70-041 (Supreme Court No. 22623)Colorado Court of Appeals.
Decided March 31, 1970.

At hearing of defendant’s motion to reconsider the entry of a default judgment in favor of mechanics’ lien claimants which motion was filed one day beyond the time permitted by the trial court, the default judgment was vacated. After subsequent trial, and denial of claimants’ motions for new trial, claimants appealed.

Reversed

1. PRACTICE AND PROCEDURE — Ten Day Period — Motion Filed on Eleventh Day — No Extension — No Excusable Neglect — Motion to Strike — May Not Be Denied. Where court gave defendant ten days in which to file a motion to reconsider the entry of a default judgment and where that motion was not filed until the eleventh day, and where no motion to extend the time was filed nor was the time extended by the court nor was there a motion filed alleging excusable neglect in failing to comply with the ten-day deadline, then there was not basis for the court to deny claimants’ motion to strike the defendant’s motion to reconsider (R.C.P. Colo. 6(b)).

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2. SHERIFFS AND CONSTABLES — Sale — Period of Redemption — Statutory — Court May Not Enlarge — After Period Has Expired. The period of redemption allowed in regard to a sheriff’s sale following entry of judgment is purely a statutory matter and a court has no authority to enlarge that statutory period of redemption after it has expired.

3. PRACTICE AND PROCEDURE — Motion to Reconsider — If Rule 60(b) Motion — After Six-Month Deadline — No Relief Possible. Even if a motion to reconsider is considered to be a motion under R.C.P. Colo. 60(b), the trial court would have no authority to grant relief on such a motion filed after the six-month deadline required by the rule.

Error to the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.

Evans and Peterson, Mason, Reuler Peek, Robert Calvert, Robert Pyle, for plaintiffs in error.

Leland M. Coulter, for defendant in error.

Division I.

Opinion by JUDGE PIERCE.

This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

The plaintiffs in error were claimants below and will be referred to hereinafter as claimants. The defendant in error was the defendant below and will be hereinafter referred to as Gould.

The claimants, all mechanic’s lien claimants, filed a complaint and cross-claims against Gould and obtained service on him by the month of February, 1965. In October of 1965, upon a finding of service on the

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defendant and no entry of appearance, the trial court entered judgment in rem against Gould’s property and ordered that the property, upon which a lis pendens had been filed, be sold by the sheriff if Gould did not satisfy judgment within 10 days. Notice was published and the sheriff sold the property to claimants on December 10, 1965. Satisfaction of judgment was then entered. Gould was aware of the sale.

On December 16, 1965, Gould filed a motion to set aside the judgment, levy and sale on the ground that summons and complaint had been mislaid by his attorney, who had negligently let the matter go unanswered. Gould filed an answer stating a meritorious defense with his motion. After a hearing on this matter, the trial court made extensive and detailed findings regarding Gould’s allegations, and determined that Gould’s neglect was not excusable. The trial court denied his motion on May 16, 1966, and gave him 10 days within which to move for rehearing. On May 27 (11 days later) Gould filed a motion to reconsider.

On June 14, 1966, a judge who was a stranger to the case, and with no motion to extend the period of time for redemption being of record, ordered the sheriff not to issue his sheriff’s deed, and continued the period of redemption. This order was entered after the statutory period of redemption had expired. On June 20, 1966, the claimants filed a motion to strike Gould’s motion to reconsider, on the grounds it was filed late.

On August 23, 1966, the original trial judge granted Gould’s motion to reconsider and denied claimants’ motion to strike; reversed his previous

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order denying Gould’s motion to set aside judgment, levy and sale; continued the order prohibiting the sheriff from issuing his deed; and ordered Gould to pay the claimants’ attorneys’ fees. Thereafter, a trial was held on the issues and the claimants offered no evidence, electing to stand on the ground that the court had erred in vacating the default judgment. After a denial of the claimants’ motion for new trial, the matter was appealed.

The claimants contend that their motion to strike Gould’s motion to reconsider should have been granted and the original default judgment allowed to stand. We agree.

[1] Assuming, but not deciding, that he had the power to do so, the trial judge granted Gould leave to file a motion to reconsider within 10 days after rendering his order denying the motion to set aside the default. This order was entered on May 16; but the motion to reconsider was not filed until May 27. R.C.P. Colo. 6(a) clearly sets forth the manner in which the 10 day period should be computed. It is absolutely clear that the motion was not filed until the eleventh day.

R.C.P. Colo. 6(b) then states:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a pervious [sic] order or (2) upon motion made after the expiration of the specified period permit the act to be done where the

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failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, and 60(b), except to the extent and under the conditions stated in them, nor shall it extend the period in which a writ of error may be sued out.” (Emphasis supplied)

Gould filed no motion to extend the 10 day time period; nor did the court on its own motion extend the period before its expiration. After the time expired, Gould filed no motion alleging excusable neglect in failing to comply with the time limitation set by the court. He maintains in his brief that the motion to reconsider was filed within the 10 day period; but it definitely was not.

There was absolutely no basis for the court to deny the claimants’ motion to strike in view of the provisions of R.C.P. Colo. 6(b).

[2] The court was also in error in its order extending the period of redemption after the redemption period had already expired. Redemption is a purely statutory matter and we know of no rule that would allow the court to enlarge it. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926).

[3] Gould has placed some emphasis on the effect of R.C.P. Colo. 60(b) in this situation. The rule is not applicable. Even if his motion to reconsider is a 60(b) motion, it was filed after the six-month deadline required by the rule and the court would have had no authority to grant relief.

We therefore reverse the decision of the trial court and order that the default judgment, levy and sheriff’s sale be reinstated; and we order the

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trial court to enter a judgment divesting the title of defendant Gould to the subject property and vesting it in the claimants, pursuant to authority given by R.C.P. Colo. 70. We further order that the claimants return to the defendant, Gould, their pro-rata share of the sum of $2,608 which he paid to them for attorney’s fees; but that the claimants may first deduct their court cost expended in this action.

CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.

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