I dissent.
Default was entered by the clerk on June 4,1979. A copy of the entry of default was received by defendants’ counsel on June 13, 1979. No entry of appearance appears in the record, but in the court’s findings on the default judgment the court found that defendants had entered an appearance on June 26, 1979. A copy of the appearance was not served on plaintiff’s counsel.
Plaintiffs filed a motion for the entry of default judgment on July 11, 1979, but did not serve defendants’ counsel with a copy of the motion. Defendants’ counsel appeared at the hearing on the entry of default judgment on July 30, 1979, and requested a *79continuance. The court questioned defendants’ counsel as to why no motion had been filed to set aside the default and after colloquy between the court and counsel, the court stated:
“It appears to the court that defendant has had ample time to move to set aside the default and that additional time would not be appropriate .... ”
The court then heard evidence on the default judgment. From the record it does not appear that defendants’ counsel made any effort to participate in this hearing.
On August 3, 1979, defendants filed a motion under C.R.C.P. 55(c) to set aside the default and default judgment on the basis of excusable neglect and meritorious defense. C.R.C.P. 55(c) provides:
“[F]or 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).”
The written order of the court stated that it had considered the motion and the briefs of counsel and that the motion was denied. In spite of the fact that the trial court, on supporting evidence, found that good cause had not been shown, the majority is setting aside the default.
In contrast to the majority, I do see a significant distinction between a default entered for failure to appear and answer and a default entered for failure to timely answer after an appearance has been made. Where a default is entered for failure to appear in the first instance, that default may be set aside for good cause. But if the default is not set aside, then defendants can appear and contest the amount of damages, but cannot challenge the issue of liability set forth in the complaint. On the other hand, where defendants have once entered an appearance, then no default judgment may be taken without giving defendants three days notice as required by C.R.C.P. 55(b)(2).
Also, I do not view Bankers Union Life Insurance Co. v. Fiocca, 35 Colo.App. 306, 532 P.2d 57 (1975) to be authority for the majority position. There defendant appeared and filed a motion and when the motion was denied, failed to file an answer. Thereafter, without notice to defendant, plaintiff took a default judgment. The court held that the judgment must be set aside, since defendant tendered his answer prior to the expiration of the three days and that no default should have been entered prior to the expiration of the three day period.
If plaintiffs had proceeded to default judgment the day that default was entered, then defendants’ sole means of urging relief would have been by filing a C.R.C.P. 60(b) motion, which would have required a showing of meritorious defense and excusable neglect which is equivalent to the good cause requirement of C.R.C.P. 55(c).
Here, since defendants were not given the required three day notice, the default judgment is void. However, because there has been no showing of “good cause” to set aside the default as required by C.R.C.P. 55(c), the default is still effective. There is no basis to set it aside and allow defendant to file his answer and counterclaim.