dissenting.
I dissent.
Counsel who represented the plaintiff, United States Rubber Company, and the counsel who represented the defendant, Community Gas & Oil Co., Inc., in the district court, all reside and maintain their law offices in Billings, Montana.
No lawyer should unnecessarily have a personal difficulty with his brother in the profession.
“Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal — and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.” Sharswood’s Professional Ethics, 5th ed., published by the American Bar Association, 1907, at pp. 73-75.
The plaintiff, United States Rubber Company, is not a lawyer, but its counsel is.
As I wrote in my specially concurring opinion in Worstell v. DeVine, 135 Mont. 1, at page 7, 335 P.2d 305, at page 308:
“Be not too ready to demand your ‘pound of flesh’ even though under the law, it may be your due.
“Be not too hasty in taking the default of a litigant represented by counsel, nor too tenacious in hanging on to such advantage once gained. Next time it may be your client who is in default and you may be the petitioner for relief.”
Chickens come home to roost.
The default judgment should be vacated and set aside and the cause should be remanded for trial.