### NO. 81-200 INTHE SUPREME COURTOF THE STATEOF MONTANA 1981

WILLIE GERGENI 

### Plaintiffand Respondent,

VS

# . DOUGLASA. PITSCH,DefendantandAppellant.

Appeal from: District Court of the Sixteenth JudicialDistrict, Inand for the County ofCuster. HonorableA. 

### B. Martin,Judgepresiding. Counsel ofRecord: ForAppellant: Felt and Martin, Billings,Montana ForRespondent: Lucas and Monaghan,Miles City,Montana

Filed: 

### Submittedonbriefs: July 9,1981 Decided: w

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# h i4igi

### 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 ofhay fromPitsch at $45per 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 tonsofhay but had received only 268 tonsbecause 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 recoveryof the 32 tons which have a current value of $100.00 per ton. The Sheriff atHardinwill shortlybe 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. Ifyou 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 oneweek." 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 tofilesuitI willdo so to collect for the extra hay he hauled from my place." On January 23, a summons and complaint were personally served upon Pitschby 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 defaultjudgment. 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 onlyreach thethresholdquestion: Did the District Court err by refusing to set aside the defaultjudgment? 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 themotion to setaside the default judgment, Douglas Pitschmade thisstatement:

"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 tobe 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 certainpapers, 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 deliveryof 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 DistrictCourt 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 thatthejudgment against him should be set aside. Also, his failure to respond to the complaintdoes not constituteexcusableneglect. The judgment of theDistrictCourt 

### is affirmed.

### We concur: 

### &FL&~,~(9,,., )-Pi)

# qChief Justice

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