No. 8 6 - 5 2 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
DAVID SIEWING and ARNOLD SIEWING,
Plaintiffs and R.espondents,
-vs-
PEARSON COMPANY, a corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bosch, Kuhr, Dugdale & McKeon; John C. McKeon,
Malta, Montana
For Respondent:
Robert Hurly, Glasgow, Montana
Submitted on Briefs: March 5, 1 9 8 7
Decided: April 2 1 , 1987
Filed:
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
Pearson Company, defendant and appellant, appeals the
denial of a motion to set aside a default judgment entered
against it in the District Court of the Seventeenth Judicial
District, County of Valley. We affirm.
David and Arnold Siewing, respondents, purchased a seed
cleaning machine from Pearson Co. in April 1985. Siewings
were dissatisfied with the performance of the machine. The
screen through which the seed passed was allegedly warped,
causing the seed to spill uncontrollably out of the machine.
Siewings contacted Pearson Co. and voiced their
dissatisfaction. Pearson Co. offered to replace the machine
and delivered a second machine to the Siewings. After
determining the machine to be identical to the first in every
respect other than size of the motor, Siewings refused
delivery.
On January 23, 1986, Robert Hurly, attorney for the
Siewings, wrote Pearson Co. requesting an immediate, full
refund on the machine and compensation for the damages
suffered by Siewings. No satisfactory response was received.
A second letter was sent by Hurly on April 1, 1986. This
time the letter was addressed to Bob Melton, a salesman for
Pearson Co., with whom Hurly had been in telephone contact.
The letter stated that unless satisfaction was forthcoming
within ten days, a lawsuit would be filed. A copy of the
complaint accompanied the letter. No response was received.
A complaint alleging breach of warranty was filed April
22, 1986. Pearson Co. was served with a summons and a copy
of the complaint on May 5, 1986. Neither a motion to dismiss
nor an answer was filed by Pearson Co. Siewings moved on May
28, 1986, to enter the default of the defendant. Default was
entered the same day. Evidence pertaining to damages was
presented to the court on July 23, 1986. Findings of fact,
conclusions of law and judgment were signed by the judge on
July 29, 1986, and filed with the clerk of court on July 31,
1986.
On July 25, 1986, the defendant contacted and engaged a
Montana attorney, John C. McKeon, to represent the defendant.
McKeon advised the defendant that he had been present in open
court on July 23, 1986, and had observed the presentation of
testimony leading to the entry of the default judgment.
Thereafter, on August 21, 1986, McKeon filed a motion to
set aside the default judgment. The motion was accompanied
by the affidavit of James L. Shook, Vice President and
Assistant Secretary of Pearson Co. The affidavit contained
very few pertinent facts.
Service of the summons of this action was served to
Pearsons to our mail carrier on or about May 5,
1986.
Our mail carrier delivered said notice to our
Senior Vice President. Through an oversight, our
Senior Vice President did not respond and has since
left our employment. Upon finding the
correspondence in his desk, we immediately started
proceedings.
On July 25, 1986, we first contacted and engaged
our attorney, Mr. John McKeon, ... to represent
US.
The motion to set aside the default judgment was heard
September 3, 1986. At that hearing, McKeon requested leave
for Shook to file a supplementary affidavit. McKeon
presented the facts which would be included in the
supplementary affidavit. McKeon told the court that the
complaint had been received by Harry Knupple, a
Vice-President with Pearson Co. Knupple was dissatisfied
with Pearson Co. and resigned on May 16, 1986. The documents
in Knupple's possession were placed in a box which was given
to James Shook. Shook found the complaint in this cause on
July 1, 1986. Shook was leaving on vacation so gave the
complaint to Tom Davis, who had been Pearson Co.'s controller
for three months. Davis was asked to immediately respond to
the complaint and on July 25, 1986, he contacted attorney
McKeon.
At the close of the hearing, the motions to set aside
the default judgment and for supplementary affidavit were
denied. The trial judge held that the motion to set aside
was based on excusable neglect and that excusable neglect had
not been proven by Pearson Co. He further found that had the
additional facts been properly before the court, there still
would be inadequate proof of excusable neglect and therefore,
there was no need for the supplementary affidavit.
Pearson now appeals the denial of its motion to have the
default judgment set aside. One issue is before us. Did the
trial judge err in denying Pearson Co.'s motion to set aside
Siewings' default judgment? We find no error.
Rule 60(b), M.R.Civ.P., provides the trial judge with
discretion to relieve a party from a final judgment when that
judgment is acquired due to the party's mistake,
inadvertence, surprise, or excusable neglect. Rule 55(c),
M.R.Civ.P., provides that good cause must be shown before the
court may set aside an entry of default. The party seeking
to set aside the entry of default has the burden of proof.
First National Bank of Cut Bank v. Springs (Mont. 1987), 731
P.2d 332, 335, 44 St. Rep. 44, 47.
In this case, Pearson is attempting to prove excusable
neglect for its failure to appear. The only admissible
evidence presented by Pearson to prove excusable neglect was
the affidavit of James Shook. That affidavit is devoid of
any facts which might prove excusable neglect. We do not
know why Knupple did not bring the complaint to the attention
of other individuals before his departure. We do not know
why Shook took from May 16 to July 1 to discover the
complaint. We do not know why Shook chose to go on vacation,
leaving pursuance of an answer to a new employee. We do not
know why that new employee took more than three weeks to
contact an attorney regarding the complaint.
The proper standard of review when a trial judge denies
a motion to set aside an entry of default is whether there
has been a slight abuse of discretion. If the trial judge
grants the motion to set aside, the standard of review is
whether there has been a manifest abuse of discretion. See
discussion in Lords v. Newrnan (Mont. 1984), 688 P.2d 290,
None of the evidence presented to the trial judge proves
excusable neglect. The failure to appear due to
forgetfulness and the press of other, more important
business, is not sufficient to establish excusable neglect.
Foster Apiaries, Inc. v. Hubbard Apiaries, Inc. (Mont. 19811,
630 P.2d 1213, 1216, 38 St.Rep. 1025, 1028-1029. Inattention
to incoming mail and taking of a vacation at Christmas are
insufficient proof of excusable neglect. Griffin v. Scott
(Mont. 1985), 710 P.2d 1337, 42 St.Rep. 1695. Likewise, a
failure to appear caused by inattention to pertinent
documents, the resignation of a company officer and the
taking of a summer vacation by another officer do not
establish excusable neglect.
We do not find an abuse
is affirmed.
We concur: Justic
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Justices