NO. 81-200 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

WILLIE GERGEN I 

Plaintiff and Respondent, 

VS . 

DOUGLAS A. PITSCH, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Custer. 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Felt and Martin, Billings, Montana 

For Respondent: 

Lucas and Monaghan, Miles City, Montana 

Filed : 

Submitted on briefs: July 9, 1981 

Decided : w - h i 4 igi 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Douglas Pitsch appeals from a default judgment 

entered against him in the District Court of the Sixteenth 

Judicial District, Custer County. We affirm. 

In the summer of 1980, Douglas Pitsch and Willie 

Gergen entered into a contract for the sale and purchase of 

hay. Under the terms of the contract, Gergen was to 

purchase 300 tons of hay from Pitsch at $45 per ton. Gergen 

paid Pitsch the entire purchase price of the 300 tons. A 

dispute arose as to whether Gergen had received all of the 

hay due him under the contract. Gergen contacted an 

attorney, and on January 15, 1981, a complaint was filed in 

District Court. The complaint alleged that Gergen had 

purchased and paid for 300 tons of hay but had received only 

268 tons because the named defendant, Pitsch, had refused to 

deliver or allow Gergen to pick up the remaining 32 tons. 

The complaint further alleged that the current price was 

$100 per ton and that Gergen was entitled to $3,200 from 

Pitsch for the hay which had not been delivered. 

On January 15, the same day that the complaint was 

filed, Gergen's attorney sent a letter to Pitsch. The 

letter contained the following statements: 

"At the request of Mr. Gergen we have filed 

suit for recovery of the 32 tons which have a 

current value of $100.00 per ton. The 

Sheriff at Hardin will shortly be serving the 

summons and complaint upon you. 

"This letter is written for the purpose of 

offering what I believe to be a reasonable 

and attractive compromise settlement. If you 

will immediately make arrangements that 32 

additional tons of hay be made available for 

pick up by Mr. Gergen, then the suit will be 

dismissed. Please advise within one week." 

On January 19, Pitsch wrote a letter to Gergen's attorney. 
The letter generally denied that Pitsch owed Gergen any 

further deliveries of hay. The letter concluded with the 

comment that "If he [Gergen] wants to file suit I will do so 

to collect for the extra hay he hauled from my place." On 

January 23, a summons and complaint were personally served 

upon Pitsch by a deputy sheriff of Big Horn County, Montana. 

On March 3, a default judgment was entered against Pitsch. 

The court set the value of the hay at $85 per ton and 

awarded Gergen $2,720 plus costs. Notice of entry of 

judgment was mailed to Pitsch on March 3. Execution was 

levied on Pitsch's bank account on March 4. On March 9, 

Pitsch, through counsel, moved the District Court to set 

aside the default judgment. The District Court denied the 

motion, and Pitsch appeals. 

Douglas Pitsch has raised three issues on appeal. 

However, because we are affirming the District Court, we 

need only reach the threshold question: 

Did the District Court err by refusing to set aside 

the default judgment? 

Rule 60(b), M.R.Civ.P., provides that a party may be 

relieved from a judgment upon a showing of mistake, 

inadvertence, surprise, or excusable neglect. In his 

affidavit in support of the motion to set aside the default 

judgment, Douglas Pitsch made this statement: 

" 6 . In the middle of January, 1981, I 

received a letter from James P. Lucas, an 

attorney in Miles City, Montana, dated 

January 15, 1981. A true copy of the letter 

is attached hereto and marked Exhibit "A". 

The letter stated that 32 tons of the 

original 300 tons remained to be delivered to 

WILLIE GERGEN, demanded that the 32 tons be 

delivered, and requested an immediate 

response from me. 

"7. A few days later, I received certain 
papers, true copies of which are attached 

hereto and marked Exhibit "B". When I 

reviewed the papers, I recognized the names 

of the attorneys, Lucas and Monaghan, as the 

firm which had sent me the original letter. 

I have never been sued or served with a 

summons and complaint before, so I did not 

recognize that these were official court 

documents, which required that I obtain the 

services of counsel and file a formal Answer 

with the Court. I believed, rather, that 

these fancy papers represented an attempt by 

WILLIE GERGEN1s attorneys to scare me into 

making an immediate delivery of 32 additional 

tons of hay, and required only a response to 

the attorneys." 

While it is true that default judgments are not 

favored, Nelson v. Lennon (1949), 122 Mont. 506, 206 P.2d 

556, we must agree with the District Court that the circumstances present in this case do not warrant a vacation of 

the judgment. The letter which Douglas Pitsch sent to 

Gergen's attorney indicates that he is both literate and 

intelligent. The summons and complaint were legally 

sufficient and clearly stated that a suit had been filed 

against Pitsch. Gergenls attorney told Pitsch, by letter, 

that suit had been filed. We cannot, under these facts, 

conclude that Douglas Pitsch was so mistaken as to the 

nature of what was transpiring that the judgment against him 

should be set aside. Also, his failure to respond to the 

complaint does not constitute excusable neglect. 

The judgment of the District Court is affirmed. 
We concur: 

&FL&~,~(9,,., )-Pi) qChief Justice 

stices