No. 80-399 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

FOSTER APIARIES, INC. a Montana Corporation, 

Plaintiff and Respondent, 

vs . 

HUBBARD APIARIES, INC., a Michigan Corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Fergus. 

Honorable LeRoy McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Parrish, Knopp & O'Hare, Lewistown, Montana 

Robert Knopp argued, Lewistown, Montana 

Fdr Respondentt 

K. Robert Foster argued, Lewistown, Montana 

Submitted: June 16, 1981 

Decided : JUL 2 1905 

Filed: [JILZ- 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Defendant Hubbard Apiaries, Inc., appeals from denial 

of its motions to vacate and dismiss a default judgment of 

$11,968 entered June 20, 1979, by the Fergus County District 

Court. 

Appellant Hubbard is a Michigan corporation which 

processes honey products. Respondent Foster Apiaries, Inc., 

is a Montana corporation which produces honey. In November 

1978 Foster shipped beeswax to Hubbard for processing. A 

dispute over the accounting arose between the parties. 

Foster filed a complaint in Fergus County District Court on 

February 19, 1979, which was served March 9, 1979. On March 

15 the president of Hubbard Apiaries sent the following 

letter to Foster's attorney, Robert Foster: 

"Dear Mr. Foster: 

"Enclosed please find photocopies of invoices 

for which we sent checks. 

"We were not aware there was a problem. 

Foster sent in cappings-slum. We rendered 

and reported. What more can we do or say! 

"Yours sincerely, 

"/s/ R. L. Hubbard" 

Hubbard did not retain local counsel or further 

communicate with Foster's counsel. Default judgment was 

entered on June 20, 1979. Although notice of default was 

not sent to Hubbard, the company had actual notice of the 

default judgment against it on September 20, 1979. Hubbard 

then contacted counsel in Michigan who secured Montana 

counsel. On behalf of Hubbard Apiaries, counsel filed a 

motion to vacate and dismiss on February 13, 1980, claiming 

lack of jurisdiction. When that motion was denied on June 

11, 1980, Hubbard renewed the motion to dismiss and vacate 
on June 17, 1980, on the grounds of mistake, ina-dvertence, 

surprise or excusable neglect and offered an answer to the 

complaint. The motion was deemed denied by failure of the 

court to rule on the motion. Notice of appeal was filed 

August 21, 1980. 

We find the following issues fundamental to this 

appeal : 

1. Was Hubbard's appeal to this Court timely filed 

under Rule 5, M.R.App.Civ.P.? 

2. Did the District Court err when it denied 

Hubbard's June 17, 1980, motion to vacate the default 

judgment on grounds of mistake, inadvertence, surprise or 

excusable neglect? 

3. Did Foster comply with the Rule 55(a), 

M.R.Civ.P., requirement of showing by "affidavit or 

otherwise?" 

4. Was Hubbard's letter to respondent's counsel an 

appearance requiring a three-day notice of entry of default? 

5. Did the District Court abuse its discretion in 

not appointing a representative for Hubbard under Rule 

55(c), M.R.Civ.P.? 

Accompanying a motion to dismiss, respondent Foster 

argues that this Court has no jurisdiction to hear Hubbard's 

appeal because it is untimely. As the facts reflect, the 

court denied Hubbard's first motion to dismiss on June 11. 

Notice of appeal was not filed until August 21, seventy-one 

days later. This, Foster argues, is beyond the thirty-day 

time limit mandated by Rule 5, M.R.App.Civ.P. The time 

limits for filing an appeal are jurisdictional and 

exclusive. An appellant has a duty to perfect its appeal in 
the manner and time provided in Rule 5. Absent this 

compliance, this Court lacks jurisdiction to hea-r the 

appeal. Price v. Zunchich (1980), Mont. , 612 P.2d 

1296, 37 St.Rep. 1058. 

Hubbard responds that Foster's argument belies the 

fact that the Michigan corporation was appearing specially, 

challenging only the court1 s jurisdiction. The necessity of 

presenting jurisdictional questions to the court and 

obtaining a ruling, separate from other viable issues, 

results in two motions and two hearings, both of which may 

provide appealable decisions. Hubbard concludes that it 

would be inappropriate to require the defaulted defendant to 

appeal the jurisdictional decision prior to judgment on 

other motions. 

In our view neither party is completely correct. The 

appeal of the denial of Hubbard1s first motion to dismiss is 

untimely. However, the second denial is timely and properly 

before this Court for consideration. This conclusion is 

based on the premise that we have here two separate final 

orders, each controlled separately by the procedural rules 

and each singularly appealable. 

As Chief Justice Haswell stated in Shields v. Pirkle 

Refrigerated Freight Lines (1979), - Mont . , 591 P.2d 

1120, 1125, 36 St.Rep. 472, 478, there is no question that 

an order refusing to vacate a default judgment is 

immediately appealable. This being the case Hubbard should 

have appealed promptly when the District Court denied its 

motion to dismiss on jurisdictional grounds. It should be 

noted that Hubbard moved to vacate for lack of personal 

jurisdiction, which can be waived if not appealed properly, 
as distinguished from subject matter jurisdiction, which may 

be raised at any time. 

Hubbard's right to appeal the denial of its February 

14, 1980, motion was extinguished when it failed to appeal 

within the time limits of Rule 5, M.R.App.Civ.P. Hubbard is 

not persuasive regarding its issue of special appearance. 

The company has not shown that its special appearance 

somehow engaged a new set of procedural rules. 

We also direct Hubbard's attention to the fact that 

there is no longer any distinction between a general or 

special appearance in Montana. With the adoption of Rule 

12, M.R.Civ.P., we abolished the difference between the 

traditional classifications of general and special 

appearances. The jurisdictional challenge is preserved by 

including it in a defendant's initial response to the 

plaintiff's claim. Once a party has raised the jurisdictional issue in its pleading, the claim is not lost or 

waived solely because of the response. Knoepke v. 

Southwestern Railway Co. (1980), Mont. , 620 P.2d 

1185, 37 St.Rep. 1910. See also Dragor Shipping Corporation 

v. Union Tank Car Company (9th Cir. 1967), 378 F.2d 241; 

Orange Theatre Corp. v. Rayherstz Amusement Corp. (3rd Cir. 

1944), 139 F.2d 871; 2A Moore's Federal Practice Yl12.12. 

An immediate appeal of the court's denial of the 

first motion would not have exposed appellant to the 

jurisdiction of the District Court. By filing a second 

motion to vacate on other, nonjurisdictional grounds, 

Hubbard accepted the denial and admitted the authority and 

jurisdiction of the court over the company and the case. 

Regarding the denial of Hubbard's June 17 motion, we 
find that the notice of appeal was timely filed. 

Disregarding the improper deviations from the procedures 

outlined in Rules 60(b) and 59(d), M.R.Civ.P., we find that 

the motion would be deemed denied on August 10, 1980, 

fifteen days after hearing. Appellant filed its notice of 

appeal on August 21, 1980, well within the thirty-day time 

limit. Therefore, this Court has the jurisdiction to review 

the District Court's action on the second motion. 

Although we have the jurisdiction to hear Hubbard's 

claims of error regarding its second motion to vacate, the 

District Court's denial was not error because the motion was 

untimely filed with the District Court. 

Rule 60(b), M.R.Civ.P., provides in part: 

"The motion shall be made within a reasonable 

time, and for reasons (I), (2), and (3) when 

a defendant has been personally served, 

whether in lieu of publication or not, not 

more than 60 days after the judgment, order 

or proceeding was entered or taken, or, in a 

case where notice of entry of judgment is 

required by Rule 77(d), not more than 60 days 

after service of notice of entry of 

j udgment . " 

The record discloses that Hubbard had actual notice 

no later than September 20, 1979. One hundred and fortyseven days later Hubbard moved to dismiss under Rule 60. 

This Court has consistently and strictly enforced the 

sixty-day limitation. See Strnod v. Abadie (1962), 141 

Mont. 224, 376 P.2d 730. 

In the case at hand, Hubbard simply stated that it 

did not know that further action was required of it by way 

of an appearance. This does not constitute excusable 

neglect, especially when appellant's representative is the 

president of a large corporation doing business on a multistate basis. In Morris v. Frank Transportation Co. (1979), 
- Mont . , 601 P.2d 698, 36 St.Rep. 1875, we stated: 

"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 

appellants1 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.'" 601 P.2d at 699. 

It is our view that here again, as in its tardy 

appeal to this Court, appellant slept on its rights and 

thereby extinguished them. Hubbard admitted to having 

actual notice of the default on September 20, 1979. If we 

are to strictly apply the language of Rule 60(b), Hubbard 

had until November 19, 1979, to move the court to vacate the 

judgment. It is simply not reasonable for a party to wait 

until February 14 to raise an issue of error in regard to a 

default judgment. Hubbard1s incalcitrance cannot be 

condoned by allowing it to now complain of impropriety. 

Since we have no jurisdiction to hear Hubbard's 

appeal of the first denial of its motion to vacate, Rule 5, 

M.R.App.Civ.P., and since the second motion was untimely 

filed with the District Court, Rule 60(b), M.R.Civ.P., we 

will not consider Hubbard's other issues. There could be no 

prejudicial error in the denial of Hubbard's second motion 

to vacate, since the motion should have been denied as 

untimely. No cause shall be reversed upon appeal by reason 

or error committed by the trial court against the appellant 

where the record shows that the same result would have been 

attained had the trial court not committed the error or 

errors. Rule 14, M.R.App.Civ.P. See also Galiger v. Hansen 

(1957), 133 Mont. 34, 319 P.2d 1051. Only substantial 
prejudice to the rights of Hubbard would warrant reversal. 

No such prejudice occurred because of the alleged errors of 

the trial court. 

Af f irmed. 

We concur: