No. 92-348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

HOWARD N. HORTON, Plaintiff and Respondent,

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Richard Prinkki, Pro Se,Missoula, Montana For Respondent: Walter E. Congdon, Congdon Law Offices, Missoula, Montana

Filed: Submitted on Briefs: November 19, 1992 Decided: December 8, 1992

### Chief Justice J. 

### A. Turnage 

### delivered the Opinion of the Court. This is 

### a landlord-tenantdispute. The ~istrict Court for the Fourth Judicial ~istrict, 

### is sou la County, entered judgment for Howard N. 

### Horton after a 

### trial at 

### which Richard Prinkki failed to appear, Prinkki appeals. We 

### affirm. ~rinkki argues 

### he was not given the notice requiredunderRule 55(b)(2),

### M.R.Civ.P., before a 

### default judgment may be entered. The 

### record shows that in May 1990, 

### Prinkki, appearing pro se, 

### appealed to District Court from a 

### judgment in favor of Horton entered by 

### the Missoula County Justice Court. In 

### July 1990, a 

### hearing was held on Worton's motion for payment of rent. Prinkki appeared in person and 

### was ordered to 

### either pay a rental deposit pending trial or else vacate the premises at 

### issue. 

### InJanuary 1991, 

### apretrial conferencewas set 

### for February 5, 

### 1991, and later continued to February 12, 

### 1991. Prinkkiwas 

### apparently 

### present at 

### both pretrial conferences. Trial was 

### set for November 1, 1991, 

### then reset for 

### March 12, 1992. 

### At trial, the District Judge stated that notice of the 

### trial date was sent to Prinkki on January 30, 

### 1992,but was returned with
no 

### forwarding address. The court stated that a 

### new address was obtained and notice was mailed to Prinkki 

### at that address on February 14, 1992,and onMarch 9, 

### 1992, and that these two notices


### were not returned to the court, raising a 

### presumption that Prinkki received them. Prinkki did not appear in person or by 

### representa-tive at trial. The court heard testimony on behalf of Horton and subsequently entered judgment for him. Default judgment may be entered only when a party has failed to plead or otherwise defend. Rule 55(a), M.R.Civ.P. Default judgment would not be proper in this case,because Prinkkipled and defended his case, in part. The District Court file shows that default judgment was neither requested nor entered. Here, judgment was entered after trial at which Prinkki failed to appear. Prinkki was given notice of the trial date. No defect has been shown in the notice. We therefore affirm the judgment of the District Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to the West Publishing Company.

chief JusticeWe concur:December

### 8, 1992 CERTIFICATEOFSERVICE 

### I herebycertify that the followingorder was sentby United Statesmail,prepaid, to the followingnamed:
RICHARDPRINKKI P.O. Box2983 Missoula, MT 59806
WalterE.Congdon CONGDON

### LAWOFFICES 520BrooksStreet Missoula, 

### MT59801
EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA