Schalk v. Breshnahan , 138 Mont. 129 ( 1960 )

MR. JUSTICE CASTLES

delivered the Opinion of the Court.

This is an appeal from an order denying a motion to reconsider an order setting aside a default judgment. The complaint in this action seeks recovery of $750 in two causes of action.

In the first cause, it was alleged in substance that the $750 represented a down payment on certain real estate which plaintiff agreed to buy from defendants; that defendants agreed to complete improvements but failed to do so; and that plaintiff made demand for the return of tbe down payment which was refused.

In the second cause of action, it was alleged that defendants promised to return the down payment if plaintiff would forbear to sue; that plaintiff agreed to withhold suit and did so for a reasonable time but received no payment of the $750.

The complaint was filed on April 14, 1956. Summons was served on defendants on April 21. On May 15 their default was entered for failure to appear. On July 31, 1957, being fourteen and one-half months after the entry of the default, plaintiff testified in court in support of the complaint and secured judgment. On January 24, 1958, defendants filed a motion to set aside the default judgment supported by affidavit of defendants’ counsel in which it was stated that the judgment by default was taken against defendants by reason of mistake, inadvertence, surprise and excusable neglect.

In substance, the affidavit sets forth that when defendants consulted affiant he was engaged in the preparation for trial of an important damage action, the trial of which commenced on June 6, 1956, and culminated in a verdict for his client on June 28 in the sum of $183,000; that the only reason why he did not appear and plead in the cause was because of his mistake, inadvertence and excusable neglect in misplacing the summons and a copy of complaint, and in completely forgetting about the matter until his attention was called to it by defendants after the entry of judgment.

Appellant sets forth two specifications of error as follows:

1. The district court erred in setting aside the default judgment in the instant ease for the reason that the motion to set aside said default judgment was made more than six months after entry of default.

2. Assuming — arguendo only — that the motion to set aside default was timely, the defendants failed to make a sufficient factual showing of mistake, inadvertence, surprise or excusable neglect to justify tbe action of tbe district court in setting aside the default.

R.C.M. 1947, § 93-3905, provides in part as follows:

“The court may, in furtherance of justice, and on such terms as may be proper * * * allow an answer to be made after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no ease exceeding six months after such judgment, order, or proceeding was taken.”

This court in Galbreath v. Aubert, 116 Mont. 490, 157 P.2d 105, 106, held:

“The entering of a default by the clerk or the court, at the instance of the adverse party, is a ‘proceeding taken against’ the party in default within the meaning of section 9187, Revised Codes [1921, now R.C.M. 1947, § 93-3905], and it is the date of the entry of the default and not the date of the judgment subsequently entered that fixes the beginning of the six months within which the motion to set aside the default must be made. One who invokes the aid of the statute must act within the six-months period or his application for relief thereunder comes too late. As to the six-months limitation, the statute is inflexible. & # *

“Because the motion was not made until more than ten months after the default was entered, the trial court was without jurisdiction to grant the order of June 17, 1943. State ex. rel. Smotherman v. District Court, 51 Mont. 495, 153 P. 1019.

“As was said by this court in Kosonen v. Waara, supra (87 Mont. 24, 285 P. 673), ‘While the rule may be harsh, it is laid down by the Legislature and only legislative action can change it. * * *

“ ‘Although reluctant to do so in such a case as this wherein the court has opened the way for a hearing on the merits, we are forced to the conclusion that the court manifestly abused its discretion.’ ”

In the case at bar, default was taken against the defendants on May 15, 1956. Judgment was entered on July 31, 1957. The motion to vacate the default was not prepared, served and filed until January 24, 1958. Such motion came too late.

In recent cases, Worstell v. Devine, 135 Mont. 1, 335 P.2d 305; Cure v. Southwick, 137 Mont. 1, 349 P.2d 575; and Simons v. Keller, 137 Mont. 52, 350 P.2d 366, this court has gone a long way in permitting the opening of defaults, but in the instant case, the affidavit of counsel reveals that the only reason for failure to enter an appearance was forgetfulness because of other more important business. Such a reason is inexcusable. See St. Paul Fire & Marine Ins. Co. v. Freeman, 80 Mont. 266, 275, 260 P. 124; Lovell v. Willis, 46 Mont. 581, 583, 129 P. 1052, 43 L.R.A.,N.S., 930.

Under the circumstances of this case, the district court was without authority to set aside the default judgment. The order appealed from is reversed with directions to the district court to reinstate the judgment theretofore set aside.

MR. CHIEF JUSTICE HARRISON and MR, JUSTICES BOTTOMLY and ADAIR concur.