Neuringer v. Wortman , 186 Mont. 298 ( 1980 )

No. 14959
IN THE SUPREP? COURT OF THE STATE OF MONTANA
1980
MARTIN L. NEURINGER,
Plaintiff and Appellant,
RICHARD WORTMAN, CONSERVATIVE
INVESTOR'S GROUP, GARY J. GRIFF and
and GERLAD J. CAPLAN,
Defendants and Respondents.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
J. David Penwell argued, Bozeman, Montana
For Respondent:
McKinley Anderson argued, Bozeman, Montana
Landoe, Brown, Planalp, Kommers & Lineberger,
Bozeman, Montana
James Johnston argued, Bozeman, Montana
Submitted: January 16, 1980
Decided: FEB J
7980
Filed: r r g 1 ,-. pV3
.
i - c
Mr. Chief Justice Frank I Haswell delivered the Opinion of
.
the Court.
Plaintiff appeals from the denial of a motion seeking
a 30-day extension to file a notice of appeal pursuant to Rule
5, M.R.App.Civ.P.
Final judgment in the underlying matter was served on
counsel for the plaintiff on May 29, 1979, Judgment was entered
by the District Court on May 22, 1979. Rule 5, M.R.App.Civ.P.
provides that an appeal from a judgment must be taken within 30
days of the entry thereof. This rule also provides that the time
for filing the appeal may be extended an additional 30 days by
the District Court if there is a showing of excusable neglect.
Here plaintiff filed a motion requesting an additional 30
days to file the notice of appeal more than 30 days after the entry
of judgment. Plaintiff alleged excusable neglect and introduced
into evidence three affidavits to this effect.
According to the affidavits the following events tran-
spired: On May 17, 1979, the court's findings of fact and con-
clusions of law were received by plaintiff's counsel. On May 23
plaintiff was informed of this during a phone conversation with
his attorney. Plaintiff was in New York or New Jersey at this
time. Plaintiff was also informed that he had 30 days after entry
of judgment to file an appeal. Plaintiff stated that he would let
his attorney know if he wished to make an appeal after he received
notice of entry of judgment. The secretary of the plaintiff's
attorney mailed a copy of the notice of the entry of judgment to
the plaintiff on May 30, 1979. Plaintiff did not receive this
notice in the mail and he called his attorney on July 18 to ask
about the matter. Upon learning the facts the plaintiff requested
that his lawyer seek the 30 day extension provided by Rule 5. It
is from the denial by the District Court of this 30 day extension
that plaintiff appeals.
The only issue presented upon appeal is whether the Dis-
trict Court erred in not granting plaintiff's motion to extend
the time for filing a notice of appeal under Rule 5, M.R.App.
Civ. P.
Rule 5 states, in part:
"The time within which an appeal from a judgment
or an order must be taken shall be 30 days from
the entry thereof . . ."
The last sentence to this rule provides:
"Upon showing of excusable neglect, the district
court may extend the time for filing the notice
of appeal by any party for a period not to exceed
30 days from the expiration of the original time
prescribed by this Rule."
From a reading of this language it is clear that questions
of excusable neglect in this context are addressed to the sound
discretion of the District Court. Our review, therefore, is
limited to whether the District Court abused that discretion.
There have been a number of Montana cases which have con-
sidered the concept of excusable neglect. The standard of review
was stated in the case of Brothers v. Brothers (1924), 71 Mont.
"'Each case must be determined upon its own facts;
and, when the motion is made promptly and is
supported by a showing which leaves the court in
doubt, or upon which reasonable minds might reach
different conclusions, the doubt should be re-
solved in favor of the motion.' No great abuse of
discretion by the trial court in refusing to set
aside a default need be shown to warrant a reversal,
for the courts universally favor a trial on the
merits.
"No two cases will be found which present the same
circumstances for consideration, for each depends
upon its own facts. . ." (Citations omitted.)
It must be noted that most Montana cases, such as Brothers,
which deal with excusable neglect, are concerned with the setting
aside of default judgments. See Kootenai Corporation v. Dayton
(1979) Mont . , 601 P.2d 47, 36 St.Rep. 1785. The policy
a
behind the setting aside of/default judgment has consistently been
to allow a defendant to present his defense, A defaulted de-
fendant should have his day in court in order that his case
may be decided upon the merits.
The only Montana case which has considered excusable neglect
in connection with Rule 5, M.R.App.Civ.P. is McCormick v.
McCormick (1975), 168 Mont. 136, 541 P.2d 765. In McCormick
the appellant had decided not to appeal and then, after the time
for filing a notice of appeal had lapsed, she decided that she
did want to appeal. This Court said: his change of mind is
not one of those extraordinary cases for which an extension of
time to file an appeal is allowed under Rule 5." 168 Mont., at
141. The test used in McCormick is: If there is any doubt as
to excusable neglect, it should be resolved in favor of the party
moving to have the 30-day extension. This test was adopted from
the above-quoted language from Brothers.
Whether notice to an attorney constitutes notice to a
client in the context of excusable neglect under Rule 5 has not
been considered by this Court. Federal courts have, however,
considered this question under their identical Rule 73(a) of the
Federal Rules of Civil Procedure. (Now Rule 4(a), Federal Rules
of Appellate Procedure.)
The case of Winchell v. Lortscher (8th Cir. 1967), 377
F.2d 247, presents a fact situation which is virtually identical
to the instant case. In Winchell the plaintiff's attorney was
served with notice of the entry of judgment but the client did
not receive notice until after the 30 days had expired because
he was "continuously traveling throughout this country and abroad
during the period in question." The District Court found this
testimony "lacking in credibility" but it nevertheless held it to
be excusable neglect. The Eighth Circuit reversed.
The holding was based upon the conclusion that service
upon an attorney is service upon the client. They came to this
conclusion by construing two of the Federal Rules of Civil Pro-
cedure (Rules 77 (d) and 5 (b)) , which are identical in pertinent
part to the corresponding Montana Rules of Civil Procedure. Rule
77(d) provides in essence that the clerk must serve a notice of
entry of judgment upon each party and this "is sufficient notice
for all purposes for which notice of the entry of an order is
required by these rules . . ." Rule 5 ( b ) provides that whenever
service is required by the rules "upon a party represented by an
attorney the service shall be made upon the attorney . . .I1 The
Court said:
"The inescapable conclusion that must be drawn
when reading these notes and the rules to which
they apply is that when the rules speak of giving
notice to a party, they are expressing the accepted
legal principle that notice to the attorney is
notice to the party. See, Annotation, Extension
of Time For Appeal, 9 L. Ed. 2d 1088, 1092-1093. It
is the duty of the attorney to act for his client
in all legal matters. When notice was received by
appellant's attorney on August 2, 1966, there was
timely notification to a party within the meaning
of Rule 73(a) and it was therefore incumbent upon
counsel to take timely action within the original
30 days after the entry of an appealable order to
preserve his right of appeal. This he failed to
do." 377 F.2d at 253-254.
The reasoning of the Winchell case applies to the present
case. In the present case the plaintiff's attorney had notice
shortly after the judgment was entered. The plaintiff actually
knew that the case had been decided against him. He knew that he
had 30 days from the entry of judgment within which to file an
appeal and yet he waited approximately 8 weeks to contact his attor-
ney. Given these factors, plus the fact that the attorney was
served with the required notice, the District Court did not abuse
its discretion in finding there was no excusable neglect.
Affirmed.
Chief Justice
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Justices