### No. 85-273 IN THE SUPREME COURT OF 

### THE STATE OF MONTANA 1985

WILLIWi J. 

### GRIFFIN 

### and BRENDA G. 

### GRIFFIN, Plaintiffsand Respondents,

KENNETH E. SCOTT and BARBARA 2. 

### SCOTT, Defendants and Appellants.

APPEAL FROM: District Court of the Twentieth Judicial District, Tn 

### and for the County of 

### Sanders, The Honorable 

### C. B. McNeil, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Tipp,Hnven, Skjelset & 

### Frizzell; Raymond P. Tipp, Missoula,Montana
For Respondent: 

### Baxter, Fletcher & 

### Hanson; Robert L. 

### Fletcher, Thompson Falls,Montana

Submitted on briefs: Aug. 15, 1985 Decided: November 6,

### 1985

Filed: ,.,1 ,'


### ..

## '1985Mr. 

### Justice L. C. 

### Gulbrandson delivered the Opinion of the Court.
Kenneth and Barbara Scott, appellants, appeal the denialof a motion to

### set aside a defaultjudgment entered in the District 

### Court of the Twentieth Judicial District, 

### SandersCounty. We 

### affirm. William and Earbara Griffin, respondents, filed a complaint on November 28, 1984, claiming a prescriptive easement over an existing roadway across appellants1 adjoining property. The complaint and summons 

### were personally served on appellantson December 5, 

### 1984, attheir home in Wyoming. On about December 14, 1984 appellants mailed these and other documents to 

### their counsel, Raymond Tipp, in Missoula, Montana. He 

### left for a two-week vacation
on December 20, 

### 1984, unaware that the summons and complaint arrived athisoffice that day. Tipp returned tohis office
on January 4, 1985, but did not review the information appellants had sent because of the amount of mail and other work which had accumulated. He 

### did not discover that a default judgment had been entered on January ll., 1985,until he saw a creditbureau report on February 12, 1985. At

### that 

### time he reviewed the information from his clients and contacted respondents1attorneytorequest a stipulation that thejudgment be set aside. He

### then asked theDistrict

### Court,
on February 21, 1985, to set aside the judgment on the basis of mistake, inadvertence or excusable neglect pursuant to Rule 60

### (b)

## ,l4.R.Civ.P. Respondents opposed thismotion citing appel.lants' lack of diligence in addition to counsells failure to read his incoming mail. Appellants had not responded 

### toa letter from respondents mailed August 2, 1984which outlined theproblemsbetween the parties in detail and urged them to contact an attorney. They also declined to respond to a follow-up 

### letter three weeks lateradvisingthem that respondents would proceed formally 

### to determine the extent of their easement. Even after they received the complaint and summons, appellants apparently did nothing 

### to monitor the status of the suit. Respondents filed their motion for default judgment on January 

### 8, 1985. The judgment, entered January 

### 11, 1985, awarded respondents an easement over an existing roadway along the edge of appellants1 property and permanently enjoined appellants from obstructing the easement. The District Court held a hearing on appellants1 motion to 

### set aside the default judgment on March 26, 1985 and denied the motion on April 12, 1985. Appellants raisetwo issues on appeal: 

### (I) Whether the District Court erred by not setting aside the default judgment on the basis of mistake, inadvertence 

### or excusable neglect. (2) Whether the 

### DistrictCourt had authority toenter
a default judgment in 

### a quiet 

### title action without 

### a prima facie showing of a right to easement by competent evidence. The standard of review where a district court has denied a motion 

### to 

### set aside the default 

### "is that no great abuse of discretion need be shown to warrant reversal." Lords v. Newman (Mont. 1984), 688 P.2d 290, 294, 41 St.Rep. 1793, 1797. Another statement of this standard 

### "isthatonly 'slight abuse1 

### is sufficienttoreverse an order refusing to set aside a default." (Citationsomitted.) Lords, 688 P.2d at293.The 

### test todetermine whether the neglect 

### is excusable and sufficientto

### set aside a default 

### is:



# . ..whether the reasons given for the neglect are such that reasonable minds might differ in their conclusions concerning excusable neglect. If so, doubt should be resolved 

### in favor of a trialon the

### merits. United States P-ubber Co. v. Community Gas & Oil Co. (1961), 139 Mont. 36, 39, 359 P.2d 375, 376. In United States Rubber, the attorney's neglect consisted of his failure to read hismail for two orthreeweeks "because of being busy, the holiday season, and themistaken assumption thatthe 

### letter concerned a differentmatter." (~mpha 

### sis in original.) 139 Mont. at 39. FJe held that the attorney's actions 

### were inexcusable neglect and that the district court had not abused 

### its discretion 

### in denying a motion to 

### set aside the default judgment. In the case at bar the attorney's actions are surprisingly similar tothose atissue inUnited StateRubber. The attorneyhere, 

### inhisaffidavit, cited the accumulation of mail and work inhisoffice and his absence over the Christmas holiday asthe reason for failing toread hisclients' 

### letter forabout fiveweeks. During the hearing on the motion to 

### set aside the default judgment, he stated that he had not given the documents prompt attention because, in his past dealings with appellants, problems generally went on for months and months. Although this 

### is not an assumption that the documents concerned a different matter, the attorney did mistakenly assume the documents did not concern a matter requiring prompt attention. Another difference 

### is that in United StatesRubber the letter was from an opposj-ng attorney. However, these factual differences are not sufficient 

### to distinguish the two cases.We note also that there are several other attorneys 

### inTipp's office, according to signatures 

### in the DistrictCourt file, who could have reviewed the mail and discovered the complaint. As in United StatesRubber, this attorney's failure toread hismail for fiveweeks because of work which had accumulated in his absence over a holiday 

### is not excusable neglect. The neglect of an attorney generally may be attributed to the client except where the attorney's action constitutes "actual misconduct," Lords, 688 P.2d at295, and the clients
are "blameless." Lords, 688 P.2d at 296. 

### In Lords, the attorney made 

### a genera1 appearance in court on behalf of clients who had not been served with process and who had not authorized him to act. He then disappeared from sight. The clients attempted to contact him and proceeded "with diligence torectifythe court's action." Lords, 688 P.2d at 296. Here the attorney's action does not approach the misconduct of the attorney in Lords. Further, knowing that
an appearance was due the day after Christmas, appellants waited until atleastDecember 

### 14tomail thepapers totheir attorney and apparently did nothing to check on the suit. Nothing in the record shows they let their attorney know the matter would require prompt attention. Under these circumstances, the district court did not abuse 

### its discretion in refusing to 

### set aside the default judgment. In the second issue, appellants refer to plaintiffs' action as a quiet title action under 

### S 70-28-101 et.seq., MCA. They contend that § 70-28-108, MCA requiringplaintiffs "produce evidence sufficienttoprima facieentitle [them] to relief" before they are entitled toa default decree was not satisfied. They claim theplaintiffs produced no evidence toshow they 

### were entitled torelief, thus the default judgment should be 

### set aside. This action did not adjudicate ownership of real property, oreven adjudicate the ownership of the easement. The judgment addresses only the use of the roadway between the individuals named asparties. As such 

### it 

### is not 

### a quiet title action to which § 70-28-108, MCA applies. We therefore hold the

### DistrictCourt had authority toenterthedefaultjudgment. 

# / The order of the

### District Court 

### is affirme@/

,/ / 

### ' 

# pp,

# 24
1 Justice,
We concur: 

# -