No. 14268
IN THE SUPREME COURT OF THE S-
T OF MONTANA
1978
MARION C. MXLUFG and
LOIS K. MSLURG, husbard and wife,
P l a i n t i f f s and Appellants,
FZATHEAD COUNTY ~ I S S I O N E R S ,
and CLIFFORD VINJE, Ibad Supervisor,
Defendants and Respondents.
Appeal f r m : D i s t r i c t Court of the Eleventh Judicial D i s t r i c t ,
Homrable James M. Salansky, Judge presiding.
Counsel of Record:
For Appellants:
M. K e i t h WClurg argued, Big Fork, Montana
For Respondents:
Patrick Springer, County Attorney, Kalispell, mntana
Leonard A. Vadala argued, Deputy County Attorney, Kalispell,
Wntana
Sulmnitted: October 20, 1978
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Filed: iJC!
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiffs appeal from an order of the District Court,
Flathead County, setting aside a default entered in their favor
by the clerk of said court.
Plaintiffs filed a declaratory judgment action seeking
permission to barricade a road running through a corner of a
parcel of land owned by them. They alleged that the road was an
inconvenience to them in that automobiles often became stuck on
a steep incline in the winter and put them to time and expense
extricating motorists with their tractor. Since there was another
route existing by which cars could reach the same destinations,
plaintiffs wanted to erect signs indicating that the road on
their land was a deadend private drive.
The Flathead County Commissioners, named as defendants
in the action, failed to file a responsive pleading within the
time limits provided by the Montana Rules of Civil Procedure.
Plaintiffs had the clerk of court enter defendants' default pur-
suant to Rule 55(a), M.R.Civ.P. Before default judgment had
been entered, however, the county commissioners filed a motion
to set aside their default. The District Court granted this
motion. Plaintiffs appeal.
The right of appeal exists only by statute or rule. Payne
v. Mountain States Telephone & Telegraph Co. (1963), 142 Mont.
406, 385 P.2d 100. There is no statute or rule authorizing appeal
from an order setting aside entry of default before judgment is
taken.
Rule l(a), M.R.App.Civ.P. provides that an appeal may be
taken from a final judgment entered in an action commenced in a
District Court. As a general rule, an order setting aside an
entry of default where judgment has not been entered is not such
a final order and is, therefore, not appealable. Annot. 8 ALR3d
1 2 7 2 , 1278; 4 Am J u r 2d Appeal and E r r o r 5127. Entry of d e f a u l t
i s merely "an i n t e r l o c u t o r y a c t looking toward t h e subsequent
e n t r y o f a f i n a l judgment by d e f a u l t and i s more i n t h e n a t u r e
of a formal matter." Whaley v. Rhodes ( 1 9 7 0 ) , 1 0 N.C.App. 109,
177 S.E.2d 735, 736, c i t i n g 6 Moore's F e d e r a l P r a c t i c e 1155.10[1],
a t 1827 ( 2 d e d . 1 9 6 6 ) , c o n s t r u i n g R u l e 5 5 ( a ) , F.R.Civ.P., which
i s i d e n t i c a l t o t h e c o r r e s p o n d i n g Montana r u l e . W e have express-
l y held t h a t an order s e t t i n g aside a d e f a u l t is n o t appealable
where f i n a l judgment h a s n o t b e e n e n t e r e d . B l e v i n s v. K r a m e r
(19781, Mont .I - P.2d 35 St.Rep. , (decided
December 5 , 1978.
Appeal d i s m i s s e d .
Chief J u s t i c e
W e concur: