No. 85-273 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

WILLIWi J. GRIFFIN and BRENDA G. 

GRIFFIN, 

Plaintiffs and 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 ,' .. '1985 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Kenneth and Barbara Scott, appellants, appeal the 

denial of a motion to set aside a default judgment entered in 

the District Court of the Twentieth Judicial District, 

Sanders County. 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 appellants on December 5, 1984, at their 

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 at his office that day. Tipp returned to his 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 credit bureau report on February 12, 1985. At that 

time he reviewed the information from his clients and 

contacted respondents1 attorney to request a stipulation that 

the judgment be set aside. He then asked the District 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 this motion citing appel.lants' lack 

of diligence in addition to counsells failure to read his 

incoming mail. Appellants had not responded to a letter from 

respondents mailed August 2, 1984 which outlined the problems 
between the parties in detail and urged them to contact an 

attorney. They also declined to respond to a follow-up 

letter three weeks later advising them 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 raise two 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 District Court had authority to enter 

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 "is that only 

'slight abuse1 is sufficient to reverse an order refusing to 

set aside a default." (Citations omitted.) Lords, 688 P.2d 

at 293. 
The test to determine whether the neglect is excusable 

and sufficient to 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 

trial on 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 his mail for two or three weeks "because of being busy, 

the holiday season, and the mistaken assumption that the 

letter concerned a different matter." (~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 to those at issue 

in United State Rubber. The attorney here, in his affidavit, 

cited the accumulation of mail and work in his office and his 

absence over the Christmas holiday as the reason for failing 

to read his clients' letter for about five weeks. 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 States Rubber 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 in Tipp's 

office, according to signatures in the District Court file, 

who could have reviewed the mail and discovered the 

complaint. As in United States Rubber, this attorney's 

failure to read his mail for five weeks 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 at 295, 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 to rectify the 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 at least December 14 to mail the papers to their 

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 requiring plaintiffs 

"produce evidence sufficient to prima facie entitle [them] to 

relief" before they are entitled to a default decree was not 

satisfied. They claim the plaintiffs produced no evidence to 
show they were entitled to relief, thus the default judgment 

should be set aside. This action did not adjudicate 

ownership of real property, or even adjudicate the ownership 

of the easement. The judgment addresses only the use of the 

roadway between the individuals named as parties. As such it 

is not a quiet title action to which § 70-28-108, MCA 

applies. We therefore hold the District Court had authority 

to enter the default judgment. / 

The order of the District Court is affirme@/ , / 

/ ' 

pp, 24 1 

Justice, 

We concur: 

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