No. 14727 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

CLYDE MORRIS, PHYLLIS MORRIS, and 

DALE MORRIS, 

Plaintiffs and Respondents, 

FRANK TRANSPORTATION COMPANY, and 

FJILLIAM FRANK, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Anderson, Brown, Gerbase, Cebull and Jones, Billings, 

Montana 

For Respondents: 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

Submitted on briefs: June 1,1979 

Decided: OCT 2 5 7979 

Filed: mW .: - '77". 

. .- 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from an order of the District Court 

of the ~hirteenth Judicial District, the Honorable Robert H. 

Wilson presiding, denying defendants' motion to set aside 

default and granting plaintiffs' motion for entry of judgment by default. 

Plaintiffs-respondents filed their complaint in this 

matter on January 16, 1979, seeking to recover wages and 

expenses for driving trips made on behalf of Frank Transportation Company, appellant herein. The complaint was 

personally served by a Yellowstone County deputy sheriff on 

appellant William Frank on January 18, 1979. The complaint 

demanded an amount certain. Appellants failed to answer and 

default was entered on February 8, 1979. Thereafter, on 

February 13, 1979, appellants entered an appearance by a 

motion to dismiss. The next day respondents filed a motion 

to enter judgment by default. This motion was noticed for 

hearing on February 23, 1979. A hearing was conducted at 

that time and appellant William Frank appeared and testified. During this hearing the District Court consolidated 

appellants' motion to dismiss with appellants' motion to set 

aside default for excusable neglect. There was no objection 

to this consolidation. 

In an effort to show excusable neglect, William Frank 

testified that he had been ill and had left it up to other 

people to run his business and to take care of the lawsuit. 

He further testified that he was in his office one day, 

found the complaint, and immediately took it to his attorneys. He also admitted that he was personally served with a 

copy of the complaint. 
At the end of the hearing the court took the matter 

under advisement and on February 27, 1979, entered an order 

denying the motion to set aside the default and ordering 

that the plaintiffs' motion to enter judgment by default be 

granted. On February 28, 1979, judgment by default was 

entered by order of the court. Notice of entry of judgment 

was mailed to the respective parties on February 28, 1979, 

and Frank Transportation Company and William Frank now 

appeal. 

The issue facing this Court on appeal is whether the 

District Court abused its discretion in denying the motion 

to set aside default and in entering judgment by default. 

William Frank alleges that because he was ill and under 

a doctor's care, he left his business in the care of others 

resulting in his neglect of this lawsuit. This he contends 

was "excusable neglect." 

We do not agree. Rule 60(b), M.R.Civ.P., states that a 

court may relieve a party from a final judgment upon a 

finding of " (1) mistake, inadvertence, surprise, or excusable 

neglect." Appellants cite a number of cases for the proposition that Rule 60(b) is to be liberally construed: Clute v. 

Concrete (1978), Mont. , 587 P.2d 392, 35 St.Rep. 

1775; Big Spring v. Blackfeet Tribe of Blackfeet, etc. 

(1978) Mont. , 573 P.2d 655, 35 St.Rep. 34; Davis 

v. Hubbard (1947), 120 Mont. 45, 179 P.2d 533. While we do 

not disagree with the rules in these cases, suffice it to 

say that they are distinguishable from the instant case. 

Appellants here have simply not shown excusable neglect 

under the facts of this case. There is nothing in the 

record to indicate that William Frank had specifically 

requested that someone else take the complaint to his attor- 
neys, as in Davis v. Hubbard, supra, nor that he was hospitalized 

or too sick to do it himself. Further, there was nothing to 

indicate that he was not properly served with the complaint 

a s i n Clute v. Concrete, supra, nor that he did not have 

notice of hearings as in Blackfeet Tribe, supra. 

A failure to appear due to forgetfulness and the press 

of other, more important business is not sufficient to 

establish excusable neglect. Dudley v. Stiles (1963), 142 

Mont. 566, 386 P.2d 342, 343. Even the most liberal approach 

to this problem cannot save appellants' case. " ... A 

liberal court cannot find excusable neglect where a defendant has willingly slumbered on his rights and ignored the 

judicial machinery established by law." Dudley v. Stiles, 

supra, 386 P.2d at 343. "A motion to set aside a default 

judgment is addressed to the sound discretion of the trial 

court and this Court will not interfere except upon a showing of manifest abuse." Purington v. Sound West (1977), 

Mont. , 566 P.2d 795, 797, 34 St.Rep. 579. We find 

no such abuse here. 

We concur: 

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Chief Justice 

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