No. 12253 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

PEARL THOMAS and ORLO THOMAS, 

Plaintiff and Respondent, 

G. 0. SAVAGE, SR.; G. 0. SAVAGE, JR. 

and SAFECO INSURANCE COMPANY OF AMERICA, 

a corporation, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellants : 

Arthur P. Acher argued, Helena, Montana. 

For Respondent : 

Maurice F. Hennessy, Butte, Montana. 

Corette, Smith and Dean, Butte, Montana. 

Kendrick Smith argued, Butte, Montana. 

Felt, Speare and Thompson, Billings, Montana. 

Submitted: September 21, 1972 

~ecided : 

JAN 1 5 1973 

Filed: JAblI51973 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

This is an appeal by G. 0. Savage, Sr., the moving party in the 

district court. Savage moved the district court of Silver Bow County 

"To vacate and set aside the judgment entered in the above entitled cases 

(Pearl and Orlo Thomas, v. G. 0. Savage et a1 .) on December 11, 1970, in 

favor of Plaintiff and against said Defendant." He further moved, "To 

vacate and set aside the judgment entered in the above entitled cases on 

December 18, 1970, in favor of the Third Party Plaintiff Safeco Insurance 

Company of America, and against the said Defendant." The ground for this 

motion was that the district court was without jurisdiction to enter these 

judgments because Savage had not been served with process. The underlying 

action was an automobile accident involving G. 0. Savage, Jr, and Mr. and 

Mrs. Thomas. 

Separate actions were filed by Mr. and Mrs. Thomas in January, 1970, 

against G. 0. Savage, Jr., (driver), G. 0. Savage, Sr. (owner of car), and 

Safeco Insurance Company of America, the carrier of Thomas ' uninsured motorist coverage, for damages due to personal injuries sustained in collision. 

Copies of summons and complaint were served on the secretary of 

state; he mailed the copies (certified mail) to defendant "G. 0. Savage, Sr., 

Whitehall, Montana 59759"; the letters were returned to the secretary of 

state, not del ivered. 

Meanwhile defendant Safeco cross-complained against the Savages 

alleging liability for any judgment Safeco might pay due to the insurance 

coverage; Safeco also served the secretary of state and on March 12, 1970, 

the secretary of state received the letter he had sent to Savage, Sr. marked 

unclaimed. 

Cases were consolidated for trial; the Savages made no appearance 

and their defaults were entered; $15,000 judgment was entered for both plaintiffs against all three defendants on December 11, 1970. 

On December 18, 1970, the second default judgment was entered in favor 
of cross-plaintiff and respondent herein, Safeco. 

Over one year following these judgments, on February 14, 1972, 

defendant G. 0. Savage, Sr. appeared specially and moved to vacate and 

set aside the judgments entered December 11, 1970, and December 18, 1970; 

hearing on the motions was held February 18, 1972 and following oral 

arguments and submission of affidavits, Judge Freebourn denied the motions 

to vacate the judgments on March 15, 1972. This appeal followed. 

The sole issue in this cause for our determination is whether the 

district.court was correct in refusing to grant the motion. Judge Freebourn 

in his order stated: 

"(1) That the Motion was made under Rule 60(b) 

M.R.Civ.P.; that the Motion could not be confined 

to the last sentence of Rule 60(b) which provides 

only for an independent action; and that the Motion 

can be considered only, and was considered only, under 

the provisions of said Rule 60(b) which permits the 

trial court to allow an answer to the merits within 

180 days after the rendition of the judgment." 

He further stated: 

"(2) That the Motion was made more than 180 days after rendition of the judgment on the Third Party 

Complaint which is dated December 18, 1970. * * *" 

As in the district court, the governing statutory provision in this case is 

Rule 60(b), M.R.Civ.P.; more particularly that portion of Rule 60(b) which 

reads : 

" * * * When from any cause the summons in an action 

has not been personally served on the defendant, the 

court may allow, on such terms as may be just, such 

defendant or his legal representative, at any time within 

180 days after the rendition of any judgment in such 

action, to answer to the merits of the original action. * * *I1 

This provision in Rule 60(b) is unique to Montana. Our research reveals no 

other state with the same provision. While we are not able to draw an interpretation from another jurisdiction, the wording appears to be cdear. The 

provision allows a party to come in to the district court and answer to the 

merits of an action if two conditions can be met; (1) the moving party has 

not been personally served in the original action, and (2) the motion has 

been made within 180 days of the rendition of the judgment. Upon the facts 

in this case it can be determined that only the condition concerning service 
has been satisfied; the time limit was not complied with. The record reveals that the judgment and notice of that judgment of Pearl and Orlo 

Thomas against G. 0. Savage, Sr. and Safeco Insurance Company of America 

were f i 1 ed on December 11 , 1970. Further, the record shows the judgment 

on the third party complaint by Safeco against G. 0. Savage, Sr. was filed 

on December 18, 1970. The motion by G. 0. Savage, Sr. was not filed until 

February 18, 1972, more than 480 days after the entry of the judgments. 

Plainly this does not come within that portion of the Rule 60(b), M.R.Civ.P., 

heretofore quoted, and therefore the district court was correct in denying 

the motion. 

The district judge after making the above determination went on in 

his order to make the following determination: 

"(3) That by the Motion there has been a selection 

of remedies and G. 0. Savage, Jr. [sic] is precluded 

from bringing an independent action under the 1 ast 

sentence of said Rule 60(b)." 

It is our opinion that this ruling is in error. We can find nothing in 

Rule 60(b) which would lead to the conclusion an election of remedies is 

required for a party to benefit from its provisions. In Elliston Lime Co. 

v. Prentice Lumber Co., 157 Mont. 64, 67, 483 P.2d 264, we held: 

"An independent action to set aside a default judgment 

therefore, is not subject to the 60 day limitation 

for motions to set aside defaults in the original 

action. " 

Following that same reasoning, an independent action to vacate a judgment 

for failure to receive service is not subject to the 180 day limitation contained in the rule. The final sentence of Rule 60(b) provides: 

"This rul es [sic] does not 1 imi t the power of a court 

to entertain an independent action to re1 ieve a party 

from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified 

as may be required by law, or to set aside a judgment 

for fraud upon the court." 

This independent action provision of the rule according to Professor Moore 

is to retain the equity provision of not enforcing a judgment obtained 

against the public conscience. 7 Moore's Federal Practice, para. 60.36, 
pp. 601, 602. For those reasons we reverse that portion of the district 

court's order. 

In the briefs and during oral argument,,arguments were presented 

concerning Rule 4(d), M.R.Civ.P. concerning service. Those questions 

are not properly before the Court at this time and we express no opinion 

concerning them. 

Accordingly, by what has been heretofore said, the order refusing 

to grant the motion to vacate and set aside the judgments is affirmed 

except as to that portion thereof holding that an election of remedies has 

been had and that holding is r 

order. 

We concur: / I 

ssociate ~ustices' 11