### 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: 

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## 57979 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 tripsmade on behalf of Frank Transportation Company,appellantherein. The complaint was personally served by a Yellowstone County deputy sheriff on appellantWilliam 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 appellantWilliam 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.Atthe end of the hearing the court took the 

### matter under advisement and on February 27, 1979, entered an order denying themotion to 

### set aside the default and ordering that the plaintiffs' motion toenter judgment by defaultbe granted. On February 28, 1979, judgment by default

### was entered by order of the court. Notice of entryof judgment
was mailed tothe respective parties on February 28, 1979, and Frank Transportation Company and 

### WilliamFrank now appeal. The issue facing thisCourt on appeal 

### iswhether the DistrictCourt abused 

### its discretion indenying the motion to 

### set aside default and inentering judgment by default. WilliamFrank alleges thatbecause he 

### was ill and under
a doctor's care, he lefthis business inthe care of others resulting inhisneglect of this lawsuit. This he contends
was "excusable neglect." We do not agree. Rule 60(b),M.R.Civ.P., 

### states that a courtmay relieve a party from a finaljudgment 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 tobe 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), 120Mont. 45, 179 P.2d 533. While 

### we do not disagreewith the rules inthese 

### cases, suffice 

### it to say that they aredistinguishable from the instant 

### case. Appellants here have simply not shown excusable neglect under the facts of this case. There 

### isnothing inthe record toindicate thatWilliam Frank had specifically requested that someone else take the complaint tohis attor-neys, 

### as inDavis v. Hubbard, supra, nor that he was hospitalized
or too sick todo 

### it himself. Further, therewas nothing to indicate thathe was not properly served with the complaint a s i nClutev. Concrete, supra, nor thathe did not have notice of hearings asinBlackfeet Tribe, supra. A failure 

### to appear due 

### to forgetfulness and the press of other, more important business isnot sufficient to establishexcusable neglect. Dudley v. Stiles (1963), 142 Mont. 566, 386 P.2d 342, 343. Even the most liberal approach tothisproblem cannot save appellants' 

### case. 

### "

# ... A liberal courtcannot find excusable neglect where a defendanthas 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 thisCourt 

### willnot interfereexcept 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: 

# 7Ad4$?$kw@

Chief Justice



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