Gergen v. Pitsch ( 1981 )

NO. 81-200
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
WILLIE GERGEN I
Plaintiff and Respondent,
VS .
DOUGLAS A. PITSCH,
Defendant and Appellant.
Appeal from: District Court of the Sixteenth Judicial District,
In and for the County of Custer.
Honorable A. B. Martin, Judge presiding.
Counsel of Record:
For Appellant:
Felt and Martin, Billings, Montana
For Respondent:
Lucas and Monaghan, Miles City, Montana
Submitted on briefs: July 9, 1981
Decided : w -
Filed :
hi 4 igi
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Douglas Pitsch appeals from a default judgment
entered against him in the District Court of the Sixteenth
Judicial District, Custer County. We affirm.
In the summer of 1980, Douglas Pitsch and Willie
Gergen entered into a contract for the sale and purchase of
hay. Under the terms of the contract, Gergen was to
purchase 300 tons of hay from Pitsch at $45 per ton. Gergen
paid Pitsch the entire purchase price of the 300 tons. A
dispute arose as to whether Gergen had received all of the
hay due him under the contract. Gergen contacted an
attorney, and on January 15, 1981, a complaint was filed in
District Court. The complaint alleged that Gergen had
purchased and paid for 300 tons of hay but had received only
268 tons because the named defendant, Pitsch, had refused to
deliver or allow Gergen to pick up the remaining 32 tons.
The complaint further alleged that the current price was
$100 per ton and that Gergen was entitled to $3,200 from
Pitsch for the hay which had not been delivered.
On January 15, the same day that the complaint was
filed, Gergen's attorney sent a letter to Pitsch. The
letter contained the following statements:
"At the request of Mr. Gergen we have filed
suit for recovery of the 32 tons which have a
current value of $100.00 per ton. The
Sheriff at Hardin will shortly be serving the
summons and complaint upon you.
"This letter is written for the purpose of
offering what I believe to be a reasonable
and attractive compromise settlement. If you
will immediately make arrangements that 32
additional tons of hay be made available for
pick up by Mr. Gergen, then the suit will be
dismissed. Please advise within one week."
On January 19, Pitsch wrote a letter to Gergen's attorney.
The letter generally denied that Pitsch owed Gergen any
f u r t h e r d e l i v e r i e s of hay. The l e t t e r c o n c l u d e d w i t h t h e
comment t h a t " I f he [ G e r g e n ] w a n t s t o f i l e s u i t I w i l l d o s o
t o c o l l e c t f o r t h e e x t r a hay he h a u l e d f r o m my p l a c e . " On
J a n u a r y 23, a summons and c o m p l a i n t w e r e p e r s o n a l l y s e r v e d
upon P i t s c h by a d e p u t y s h e r i f f o f B i g Horn C o u n t y , Montana.
On March 3 , a d e f a u l t judgment was e n t e r e d a g a i n s t P i t s c h .
The court set the value of the hay at $85 p e r ton and
awarded Gergen $2,720 plus costs. Notice of entry of
judgment was m a i l e d t o P i t s c h on March 3. E x e c u t i o n was
l e v i e d on P i t s c h ' s bank a c c o u n t on March 4 . On March 9,
Pitsch, through counsel, moved the D i s t r i c t Court to set
a s i d e t h e d e f a u l t judgment. The D i s t r i c t C o u r t d e n i e d t h e
m o t i o n , and P i t s c h a p p e a l s .
Douglas P i t s c h has raised three issues on appeal.
However, because we are affirming t h e D i s t r i c t Court, we
need o n l y r e a c h t h e t h r e s h o l d q u e s t i o n :
Did t h e D i s t r i c t C o u r t e r r by r e f u s i n g t o s e t a s i d e
t h e d e f a u l t judgment?
R u l e 6 0 ( b ) , M.R.Civ.P., p r o v i d e s t h a t a p a r t y may be
relieved from a judgment upon a showing of mistake,
inadvertence, surprise, or excusable neglect. In his
a f f i d a v i t i n s u p p o r t of t h e motion t o s e t a s i d e t h e d e f a u l t
j u d g m e n t , D o u g l a s P i t s c h made t h i s s t a t e m e n t :
"6 . I n t h e m i d d l e of J a n u a r y , 1 9 8 1 , I
r e c e i v e d a l e t t e r f r o m J a m e s P. L u c a s , an
a t t o r n e y i n Miles C i t y , M o n t a n a , d a t e d
J a n u a r y 1 5 , 1 9 8 1 . A t r u e copy o f t h e l e t t e r
is a t t a c h e d h e r e t o and marked E x h i b i t " A " .
T h e l e t t e r s t a t e d t h a t 32 t o n s o f t h e
o r i g i n a l 300 t o n s r e m a i n e d t o be d e l i v e r e d t o
W I L L I E GERGEN, demanded t h a t t h e 32 t o n s be
delivered, and requested an immediate
r e s p o n s e from m e .
"7. A few d a y s later, I received certain
p a p e r s , t r u e c o p i e s o f which a r e a t t a c h e d
h e r e t o and marked E x h i b i t "B". When I
r e v i e w e d t h e p a p e r s , I r e c o g n i z e d t h e names
o f t h e a t t o r n e y s , L u c a s and Monaghan, a s t h e
f i r m which had s e n t m e t h e o r i g i n a l l e t t e r .
I have never been sued o r s e r v e d w i t h a
summons and c o m p l a i n t b e f o r e , s o I d i d n o t
r e c o g n i z e t h a t t h e s e were o f f i c i a l c o u r t
d o c u m e n t s , which r e q u i r e d t h a t I o b t a i n t h e
s e r v i c e s o f c o u n s e l and f i l e a f o r m a l Answer
with the Court. I believed, rather, t h a t
t h e s e f a n c y p a p e r s r e p r e s e n t e d a n a t t e m p t by
W I L L I E G E R G E N 1 s a t t o r n e y s t o s c a r e me i n t o
making an i m m e d i a t e d e l i v e r y o f 32 a d d i t i o n a l
t o n s o f h a y , and r e q u i r e d o n l y a r e s p o n s e t o
the attorneys."
While it is true that default judgments are not
favored, Nelson v. Lennon ( 1 9 4 9 ) , 1 2 2 Mont. 506, 206 P.2d
5 5 6 , we m u s t a g r e e w i t h t h e D i s t r i c t C o u r t t h a t t h e c i r c u m -
stances present i n t h i s c a s e do n o t w a r r a n t a v a c a t i o n o f
the judgment. The letter which Douglas Pitsch sent to
Gergen's attorney indicates that he is both literate and
intelligent. The summons and complaint were legally
sufficient and clearly stated that a s u i t had been filed
against Pitsch. Gergenls attorney told Pitsch, by l e t t e r ,
that s u i t had been filed. W cannot,
e under these facts,
conclude that Douglas Pitsch was so mistaken as to the
n a t u r e of what was t r a n s p i r i n g t h a t t h e judgment a g a i n s t him
s h o u l d be s e t a s i d e . Also, h i s f a i l u r e t o respond t o t h e
complaint does not c o n s t i t u t e excusable n e g l e c t .
The judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
We c o n c u r :
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Chief J u s t i c e
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