### No. 80-399 IN THE SUPREME COURTOF THE STATEOF MONTANA 1981

FOSTER APIARIES, INC. aMontana Corporation, Plaintiffand Respondent,

vs

# . HUBBARDAPIARIES, INC., aMichigan Corporation, DefendantandAppellant.

Appeal from: District Court of the Tenth JudicialDistrict, Inand for the County ofFergus. HonorableLeRoyMcKinnon,Judgepresiding. Counsel ofRecord: ForAppellant: Parrish,Knopp & 

### O'Hare,Lewistown,Montana Robert Knopp argued, Lewistown, Montana FdrRespondentt K. RobertFoster argued, Lewistown,Montana

Submitted: June 16,1981 Decided: 

### JUL 

### 21905 Filed:

# [JILZ-Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant Hubbard Apiaries, Inc., appealsfromdenial of 

### its motions to vacate and dismiss a defaultjudgment of $11,968 enteredJune 20, 1979, by theFergus 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 inFergus County DistrictCourt on February 19, 1979, which was served March 9, 1979. On March 15 the president of Hubbard Apiaries sent the following letter toFoster's attorney, Robert Foster: "Dear Mr. Foster: "Enclosed please findphotocopiesof invoices for which we sentchecks. "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 defaultjudgment 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 tovacate 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 excusableneglect? 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 entryof 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 thatthisCourt hasno jurisdiction tohear Hubbard's appeal because 

### it 

### is untimely. As 

### the facts reflect, the court denied Hubbard's firstmotion to dismiss on June 11. Notice of appeal was not fileduntil 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 appellanthas adutytoperfect 

### its appeal inthe manner and time provided in Rule 5. Absent this compliance, this Court lacks jurisdiction to hea-r the appeal. Pricev. 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, challengingonlythe court1 

### s jurisdiction. The necessityof 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 inappropriatetorequire thedefaulted defendant to appeal the jurisdictional decision prior to judgment on other motions. Inour view neither party 

### is completelycorrect. The appeal of the denialof Hubbard1sfirstmotion todismiss 

### 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 singularlyappealable. As Chief JusticeHaswell stated in Shieldsv. 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,

### asdistinguished from subjectmatter jurisdiction, which may be raised atany time. Hubbard's right to appeal the denial of its February 14, 

### 1980, motion was extinguished when it 

### failed to appeal within the 

### time limitsof 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 setof 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 alsoDragor Shipping Corporation

v. Union Tank Car Company (9th Cir. 1967), 378 F.2d 241; Orange Theatre Corp. v. Rayherstz Amusement Corp. (3rdCir. 1944), 139F.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 thecompany and the case. Regarding the denial of Hubbard's June 17motion, wefind 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, thisCourt has the jurisdiction toreview theDistrictCourt's actionon the secondmotion. Although 

### we have the jurisdiction to hear Hubbard's claims of error regarding 

### its second motion tovacate, the DistrictCourt's denialwas not error because themotion was untimely filedwith theDistrictCourt. Rule 60(b),M.R.Civ.P., provides inpart: "Themotion shallbe 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),notmore than 60 days after service of notice of entry of judgment

# ." 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 multistatebasis. InMorris v. Frank Transportation Co. (1979),

### -Mont

# . , 601P.2d 698, 36 St.Rep. 1875, we stated: "A failuretoappear due toforgetfulness and the press of other, more important business 

### is not sufficient to establish excusable neglect. Dudley v. Stiles (1963), 142Mont. 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 establishedby law.'" 601P.2d at699. 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 untilNovember 19, 1979, tomove the court tovacate the judgment. It 

### is simply not reasonable for a party to wait until February 14 toraise an issue of error in regard toa default judgment. Hubbard1s incalcitrance cannot be condoned by allowing 

### it tonow complain of impropriety. Since 

### we have no jurisdiction to hear Hubbard's appeal of the firstdenial of 

### itsmotion tovacate, 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 willnot 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 shallbe reversed upon appeal by reason

or error committed by the trial court against the appellant where the record shows that the same resultwould have been attained had the trial court not committed the error or

errors. Rule 14, M.R.App.Civ.P. See alsoGaliger 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 errorsof the trialcourt. Aff

### irmed.

We concur: