No. 14630 INTHE SUPREMECOUKL' OF

### THE STATl3 OF M3NTANA 19 79

LI'ITLE 

### HORN STATE BANK, a hbntana Banking Corporation,Plaintiff 

### and Respondent,
-VSWW REAL BIRD, 

### JR. and lw!DIw REAL BIRD, Defendants and Ap~llants.
Appeal fm: District 

### Court of the

### ThirteenthJudicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: D. Michael Eakin, Legal Services, 

### argued, Hardin, Ibntana StevenL. Bunch, Legal Services, argued, Helena, Fkx&ana For Respondent: Clarence

### T. Belue 

### argued, Hardin, Mntana

Suhitted: June 

### 11, 1979 Decided:

## RUG

## -9

# 1979 A~G 

# -

# '!gp Filed: -Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiff bank brought this action inJustice Court, Big Horn County, to recover money owing from defendant on certain promissory notes. The Justice Court entered a default judgment infavor of plaintiff. Defendant's motion to setaside the defaultwas denied, and she appealed to the DistrictCourt. The DistrictCourt dismissed the appeal, and defendant appeals from the dismissal. In December 1977, plaintiff initiated this action inJus

### tice Court torecover money owing from two loans made todefendant. Service of process was completed on defendant on January 10, 1978. On January 12, defendant appeared before the Justice Court and sought the court's assistance innegotiating
a settlement. No written appearance was made nor was there any showing the defendant had an attorney atthat 

### time. At the suggestion of the Justice Court, defendant contacted plaintiff's attorney and tried toreach a settlement. She paid the attorney $150 on her account and leftwith the understanding that no actionwould be taken in the matter while she attempted to secure a loan topay off the remainder of the indebtedness. On January 23, without notice to the defendant, the Jus

### tice Court entered a defaultjudgment infavor of the bank and issued a 

### writof execution. The judgment did not give the defendant creditfor the $150 paid by her to plaintiff's attorney. Defendant learned of the defaultwhen her only nonexempt asset
was seized pursuant to the

### writof execution. Defendant then contacted an attorney and filed a timely motion to set aside the defaultjudgment, supported by an affidavit setting out defenses, counterclaims, and facts to show defendant was not required to filea written answer. The Justice Court denied themotion.Defendant then filed notice of appeal inJustice Court. She was unable to find sureties for undertaking, so she submitted an affidavitof inability to provide the undertaking. Plaintiff objected to the jurisdiction of the District Court to hear the appeal when no undertaking was provided. The Dis

### trict Court dismissed the appeal, and this appeal followed. Defendant presented two issues on appeal involving violation of constitutional rights, both stateand federal. Due to the peculiar facts surrounding the entry of the default judgment here, 

### we find 

### it unnecessary to consider the two issues
on appeal. Rather, 

### we base our decision on Montana case law dealing with considerations similar to those presented inthis


### case.In Brothers v. Brothers (1924), 71 Mont. 378, 383-84, 230 P. 60, 61, this Court said: "No great abuse of discretionby the trial court inrefusing to 

### set aside a default need be shown towarrant a reversal, for the courts universally favor
a trial on the

### merits." The Court went on to state

### it 

### is preferable to dispose of cases on their 

### merits than tomaintain too 

### strict a regard for technical rules of procedure. Brothers, 71Mont. at384, 230 P. at61. 

### Here, the record shows the plaintiff took a default after the defendant feltshe had been assured she would be given 

### timeto negotiate a settlement, and the judgment entered exceeds the amount defendant owed plaintiff atthe 

### time the court entered judgment by $150. Given the above rule favoring hearing cases of this nature on their 

### merits, defendant should have her day incourt. We therefore find the judgment erroneous and remand the case to the DistrictCourt of Big Horn County with directions to 

### set aside the default entered and return the cause to the Justice Court for further proceedings.

### We concur:

I 1, /,$ i f 

### 1 A; 1.

# ?r--,u& Justi 

# cbq