(597 P.2d 1045)
No. 77-1115 No. 78-300Colorado Court of Appeals.
Decided March 1, 1979. Opinion modified and as modified petition for rehearing denied March 29, 1979. Certiorari denied July 23, 1979.
Garnishee appealed from trial court judgment denying his motion to intervene in collateral action and his motion to set aside a default judgment entered against him.
Affirmed
1. GARNISHMENT — Stay — Inapplicable — Collateral Proceedings — Refusal — Set Aside — Default Judgment — Not Error. When trial court granted stay of garnishment proceedings, there was no indication that proceedings as against anyone but the garnishee were to be stayed, and thus, collateral proceedings involving possible claimant to garnisheed account were not stayed by that order and trial court did not err in refusing to set aside default judgment in that action on the basis of the stay entered in the garnishment proceedings.
2. JUDGMENT — Default — Assertion — Excusable Neglect — Necessarily Made — Within Six Months. Relative to setting aside a default judgment, an assertion of “excusable neglect” must be made within a reasonable time and not more than six months after the judgment.
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3. GARNISHMENT — Claim of Third Party — Burden — Establish — Extent of Interest — Failed to Respond — Garnishee Summons — Precluded — Asserting Interest. When a garnishee has notice of a claim of a third party to property in the garnishee’s possession, C.R.C.P. 103(i) puts the burden on that claimant not only to assert an interest in the property but also to establish the extent of his interest; accordingly, where such a claimant failed to respond to garnishee’s summons, he was thereby precluded from making the belated assertion that his interest was greater than that set forth in the summons, especially where it was apparent from the summons that the exact amount of funds held by the garnishee had not yet been determined.
4. JOINT ADVENTURES — One Joint Venturer — Party — Garnishment Proceeding — — Denial — Motion to Intervene — Other Joint Venturer — Not Error. Where one of two joint venturers was a party to garnishment proceeding and the other joint venturer had ample opportunity to become a party, and where their interest corresponded directly to any interest the joint venture as an entity could assert, the trial court did not abuse its discretion in denying motion to intervene filed on behalf of the joint venturer.
Appeal from the District Court of the County of Logan, Honorable Waino Johnson, Judge.
Roger L. Nixt, for plaintiff-appellee.
John M. Franks, for garnishee-appellant and intervenor-appellant.
Division II.
Opinion by JUDGE ENOCH.
Garnishee, George E. Clayton, appeals from a judgment entered by the trial court denying his motion to intervene and his motion to set aside a default. We affirm.
Clayton was a joint venturer with defendant Martin Weingardt in a business known as C W Developers. Martin Weingardt, as surety for his son, defendant Ronald Weingardt, had judgment of $111,366.62 entered against him on promissory notes payable to plaintiff, the Security State Bank of Sterling (Bank). To collect on its judgment against Martin Weingardt, the Bank caused several writs of garnishment to issue, one of which was served on the Housing Authority of Sterling. The Housing Authority answered, stating that it was holding funds in the approximate amount of $21,134.27, “on a construction contract . . . due to George E.
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Clayton and Martin J. Weingardt. The exact amount of each is unknown.” It was later determined that the Housing Authority held an amount in excess of the first estimate. The Bank filed a traverse to the answer and requested the court to order that the funds be deposited in the court registry account. A motion by the Housing Authority was granted staying the traverse until independent litigation regarding the funds it held was resolved.
Meanwhile the court issued a summons to Clayton requiring that he set up and defend any claim he might have to the garnished account. The summons was served on Clayton’s wife at their apartment in Brighton, Colorado, and she gave him the summons that same day. Clayton failed to respond to the summons, and the court entered an order, later characterized by the court as a default judgment against Clayton, terminating any right, title, or interest he may have had in the construction contract funds. More than a year later, Clayton filed a motion to quash service, alleging the service on his wife was ineffective. That motion was denied, and an appeal to this court on that issue was dismissed because no final judgment had been entered. Subsequently, C W Developers filed a motion to intervene in the garnishment action between the Bank and the Housing Authority, and Clayton filed a motion to set aside the default judgment entered against him. Both of those motions were denied, and Clayton now appeals all issues.
Clayton first argues that the trial court erred in failing to grant the motion to quash service of process and therefore the court had no jurisdiction to enter judgment against him. We disagree.
C.R.C.P. 4(e)(1) provides that personal service may be made upon a natural person “by leaving a copy or copies thereof at his dwelling house or usual place of abode, with some member of his family over the age of eighteen years . . . .” For the purpose of the statute, “usual place of abode” has been interpreted as the place where a person is actually living at the time service of process is attempted. As such, “usual place of abode” is not necessarily the same as a person’s domicile. Neher v. District Court, 161 Colo. 445, 442 P.2d 627 (1967). Clayton asserts that he was a resident of Nebraska, and his Brighton apartment was merely a temporary residence. The trial court, after hearing the evidence, found that Clayton had actually established residence in Brighton. Where, as here, the evidence in the record supports the findings of the trial court, they will not be disturbed on appeal. American National Bank v. Christensen, 28 Colo. App. 501, 476 P.2d 281 (1970). Therefore we must conclude that service on Clayton was effective.
Clayton next asserts that the default judgment against him should have been set aside because the stay of proceedings granted to the Housing Authority applied equally to any action against him. We disagree.
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[1] After the Housing Authority listed him as a possible claimant to the funds, Clayton was issued a summons by the court pursuant to C.R.C.P. 103(i). That rule requires that a claimant such as Clayton set up and defend his claim or be thereafter barred. When the court granted the stay of proceedings, there was no indication that proceedings as against anyone but the Housing Authority were to be stayed. A stay is to promote economy of time and effort for the court, for counsel, and for litigants. See, e.g., ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967). Because the court did not broaden the stay to include the collateral proceedings against Clayton, and because the efficiency of the litigation would have been served by Clayton’s having answered at that time, we hold that the trial court did not err in refusing to set aside the default judgment on the ground that the proceeding had been stayed.Clayton also contends that because he could show a meritorious defense and excusable neglect, the trial court erred in failing to set aside the default judgment. We do not agree.
[2] C.R.C.P. 55(c) allows a court to set aside a judgment of default in accordance with the provisions of C.R.C.P. 60(b). Under that rule, an assertion of “excusable neglect” must be made within a reasonable time and not more than six months after the judgment. Clayton’s motion to set aside the default judgment was therefore not timely because it was made more than six months after the entry of the judgment.Clayton urges that even if the default judgment should not be set aside, the trial court should have exercised its equitable powers to limit the default judgment to the $21,134.27 the Housing Authority first estimated that it owed Clayton and Weingardt. We do not agree with this contention.
[3] C.R.C.P. 103(i) governs the procedure to be followed when a garnishee has notice of a claim of a third person to any property in the garnishee’s possession. The Rule directs the court to issue a summons to the alleged claimant requiring that the claimant respond to the summons and “set up and defend his claim or be thereafter barred.” There is no provision that the court set forth any particular matters in the summons. The rule therefore puts the burden on the claimant not only to assert an interest in the property but also to establish the extent of his interest. Clayton’s failure to respond to the summons precludes his belated assertion that the extent of his interest is greater than that set forth in the summons, especially where it was apparent from the summons that the exact amount of funds held by the Housing Authority had not yet been determined.Clayton’s final contention is that the trial court erred in denying the motion to intervene by C W Developers. We do not agree.
[4] C.R.C.P. 103(o) provides that before garnishment proceedings are determined, any interested party may intervene as provided in C.R.C.P. 24. Clayton and Weingardt were the sole joint venturers in C W, and theirPage 223
interest in the garnishment action corresponded directly to any interest C W Developers could assert. Because Weingardt was a party in the action and Clayton had ample opportunity to become a party, the trial court did not abuse its discretion in denying the motion to intervene. See Grijalva v. Elkins, 132 Colo. 315, 287 P.2d 970 (1955).
Judgment affirmed.
JUDGE BERMAN and JUDGE VAN CISE concur.