No. 12253 INTHE 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 

## 51973 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 inthe districtcourt. Savage moved the district court of Silver Bow County "To vacate and setaside thejudgment entered in

### the above entitled cases (Pearl and Orlo Thomas, 

### v. G. 0. Savage eta1.) on December 11, 1970, in favor of Plaintiff and against said Defendant." He furthermoved, "To vacate and 

### set aside thejudgment entered inthe above entitled cases on December 18, 1970, infavor of 

### the Third Party Plaintiff Safeco Insurance Company of America, and against the said Defendant." The ground for this motion was that the districtcourt was withoutjurisdiction toenter 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 inJanuary, 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 motoristcoverage, for damages due topersonal injuries sustained in collision. Copies of summons and complaint were served on the secretary of state; 

### he mailed the copies (certifiedmail) todefendant 

### "G. 0. Savage, Sr., Whitehall, Montana 59759"; the letterswere returned to the secretary of state, not delivered. Meanwhile defendant Safeco cross-complained against the Savages alleging liabilityfor anyjudgment Safeco might pay due to the insurance coverage; Safeco also served the secretary of stateand on March 12, 1970, the secretaryof statereceived the letter he had sent toSavage, 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 defaultjudgment was entered infavorof cross-plaintiff and respondent herein, Safeco. Over one year following thesejudgments, on February 14, 1972, defendant G. 

### 0. Savage, Sr. appeared speciallyand moved 

### to vacate and 

### set aside thejudgments entered December 11, 1970, and December 18, 1970; hearing on themotions was held February 18, 1972 and following oral arguments and submission of affidavits, Judge Freebourn denied the motions to vacate thejudgments 

### on March 15, 1972. This appeal followed. The sole issue inthis cause for our determination 

### iswhether the district.courtwas correct inrefusing to grant the motion. Judge Freebourn inhis 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 thejudgment." He further stated: "(2) That the Motion was made more than 180 days after rendition of 

### thejudgment on the Third Party Complaint which 

### is dated December 18, 1970. 

## * * *" As inthe districtcourt, the governing statutoryprovision 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 inan action has not been personally served on the defendant, the courtmay allow, on such terms as may be 

### just, such defendant or his legal representative, atany time within 180 days after the rendition of any judgment in such action, to answer to themerits of the original action. 

## * * *I1 This provision inRule 60(b) is unique toMontana. 

### Our research reveals no other statewith the same provision. While we are not able todraw an interpretation from anotherjurisdiction, the wording appears to be cdear. The provision allows a party tocome intothe district court and answer to the merits of an action if two conditions can be met; (1) themoving party has not been personally served inthe original action, and (2) themotion has been made within 180 days of the rendition of thejudgment. Upon the facts inthis case itcan be determined that only the condition concerning servicehas been satisfied; the time limit was not complied with. The record reveals that thejudgment and notice of thatjudgment of Pearl and Orlo Thomas against G. 0. Savage, Sr. and Safeco Insurance Company of America

were fi1 ed on December 11

### , 1970. Further,the record shows thejudgment

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 thejudgments. Plainly this does not come within that portion of the Rule 60(b), M.R.Civ.P., heretofore quoted, and therefore the districtcourtwas correct indenying themotion. The districtjudge aftermaking the above determination 

### went on in his order tomake 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)." Itisour opinion that this ruling is inerror. 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 defaultjudgment therefore, 

### is not subject to the 60 day limitation for motions to setaside defaults inthe original action.

### " Following that same reasoning, an independent action tovacate ajudgment for failure toreceive service 

### is not subject to the 180day limitation contained inthe rule. The final sentence of Rule 60(b) provides: "This rules[sic] does not 1 imi

### t the power of a court to entertain an independent action tore1ieve a party from ajudgment, order, or proceeding, or to grant relief to a defendant not actually personally notified asmay be required by law, or to setaside ajudgment for fraud upon the court." This independent action provision of the rule according to Professor Moore is toretain the equity provision of not enforcing ajudgment 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 atthis 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 setaside thejudgments isaffirmed 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' 

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