No. 12442 

IN THE SUPREME COURT OF T)IE STATE OF MONTANA 

1973 

SIKORSKI & SONS, INC., 

Plaintiff and Appellant, 

-VS - 

ED R. SIKORSKI, 

Defendant and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant : 

Gene Hunt ley argued, Baker, Montana 

For Respondent : 

Lucas, Jardine & Monaghan, Miles City, Montana 

Thomas M. Monaghan argued, Miles City, Montana 

John R. Prater appeared, Ronan, Montana 

R. W. Heineman, Wibaux, Montana 

Submitted: June 20, 1973 

Decided : JUL 2 4 1973 

Filed : JUL 2 4 1973 

erk 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

This is an appeal by plaintiff corporation from an order setting 

aside and vacating a default judgment. 

This case concerns a family farming corporation, Sikoriski & 

Sons, Inc. Suit was instituted in the district court of the sixteenth 

judicial district, Fallon County, by plaintiff corporation against one of 

its stockholders, Ed R. Sikorski, to enjoin him from coming on corporate 

property and from harassing corporation officers and employees and to require him to surrender certain corporate property which he had secreted. 

Complaint was filed February 3, 1968. An order to show cause was issued 

on the same day, returnable February 9, 1968, requiring defendant to show 

cause why plaintiff should not have its injunction pendente lite. 

The complaint described the ownership of each corporate stockholder, and also alleged that since May 1960, Ed R. Sikorski had owned 364 

shares with his first wife, Frances F. Sikorski, as joint tenants, and one 

share individually. Specifically, the complaint a1 leged that Ed R. Si korski 

in about 1960 or 1961, secured from the family corporation records about 

eleven stock certificates. 

Summons, complaint and order to show cause were served February 5, 

1968. After being served Ed R. Si korski consulted with counsel . By informal 

agreement between his counsel and counsel for the corporation, the hearing 

on the order to show cause of February 9, 1968, was continued. Nothing further happened until April 12, 1968, at which time counsel for Ed R. Sikorski 

formally withdrew. Ed R. Sikorski consented, in writing, to this withdrawal. 

On April 17, 1968, plaintiff corporation asked that the default of 

defendant, Ed R. Sikorski, be entered. On May 13, 1968, judgment was taken. 

In its findings of fact, the district court found that Ed R. Sikorski owned 

364 shares of stock as tenant in common with Frances F. Sikorski , and one share 

individually. Among other things, the district court also found that Ed R. 

Si korski in about 1960 or 1961 secured from the corporation records of the 

plaintiff stock certificates numbered 3, 4, 5, 7, 8, 9, 10, 11, 12 and 13 

which belonged to other members of the corporation and had refused to deliver 
them upon demand. 

The district court concluded that Ed R. Sikorski's interest in 

the corporation was that of a stockholder and his ownership was 183 shares 

out of a total 1,003 issued. Judgment was entered for the relief sought. 

Certified copies of the findings of fact, conclusions of law and 

judgment were served on defendant, Ed R. Sikorski, on June 14, 1968. Ed 

R. Sikorski died on June 28, 1969. From the time the complaint was served 

on February 5, 1968, defendant Ed R. Sikorski did nothing with respect to 

the action, except have the hearing of February 9, 1968, continued. 

On October 31, 1969 Veronica Si korski , the second wife of Ed R. 

Sikorski and the administratrix of his estate, filed a complaint against 

plaintiff corporation to have a receiver appointed, to liquidate the corporation, and for other relief, 

On December 9, 1969, Veronica Sikorski in the instant action petitioned the court to set aside, vacate, and modify the judgment, asking 

for equitable relief under Rule 60(5), M.R.Civ.P. The petition was never 

ruled upon. 

On March 29, 1972, plaintiff corporation was served by Veronica 

Sikorski with a motion for order setting aside and vacating judgment. The 

basis for this motion was that Ed R. Sikorski should have been served with 

notice to appoint another attorney before being defaulted and plaintiff 

should have served a notice of application for default judgment because Ed 

R. Sikorski had appeared in the action against him. The motion was set for 

hearing on April 18, 1972, which was continued for the convenience of counsel 

i nvol ved. 

After three district judges had disqualified themselves, District 

Judge Sorte assumed jurisdiction on May 26, 1972. On July 28, 1972, it 

was ordered that the hearing on the motion for order setting aside and vacating judgment be set for September 8, 1972. By agreement of counsel for all 

parties, the order setting the hearing on September 8, 1972 was vacated. 

Counsel agreed to submit the matter on written briefs. Counsel for plaintiff 
was given until October 15, 1972 to file a brief. 

The district court took the motion under advisement and on November 

29, 1972, ruled that the judgment be set aside. The district court concluded: 

that it had been without jurisdiction to proceed against Ed R. Sikorski because plaintiff did not serve upon defendant notice to appoint another lawyer; that it was without jurisdiction because plaintiff did not give notice 

to defendant of application for judgment as required under Rule 55(b)(2), 

M.R.Civ.P.; and, that the "JUDGMENT exceeds the prayer of plaintiff Is complaint in that it designates specific certificates of stock to be returned 

to plaintiff by defendant when the prayer of the complaint only generally 

refers to certificates of stock * * *". On December 5, 1972, plaintiff 

filed its exceptions to the findings of fact, conclusions of law, and order 

setting aside and vacating the judgment. 

On December 11, 1972, the district court in denying the exceptions 

said: 

"It is clear that failure to give notice of entry of 

judgment is not a jurisdictional defect. However, the 

Court feels that there are general equity powers to set 

aside the judgment so the matter can be tried on the 

merits and before a jury." 

Plaintiff presents seven issues on appeal. Two are: (1) Whether 

under section 93-2104, R.C.M. 1947, an adverse party is required to advise 

the opposite party to appoint another lawyer or appear for himself when the 

opposite party's lawyer, with the consent of that party, withdraws from the 

case; and (2) whether the judgment can be set aside because plaintiff failed 

to serve notice of application for default judgment on Ed R. Sikorski. The 

remaining five issues raise questions concerning the Montana Rules of Civil 

Procedure and can be consolidated into one general issue: whether the 

Montana Rules of Civil Procedure have been followed in setting aside the 

judgment? 

Section 93-2104, R.C.M. 1947, provides: 

"When an attorney dies, or is removed or suspended, or 

ceases to act as such, a party to an action, for whom he 

was acting as attorney must, before any further proceedings are had against him, be required by the adverse 
party, by written notice, to appoint another attorney or 

appear in person." 

There has been no case decided by this Court interpreting the requirement of section 93-2104, R.C.M. 1947, involving a situation where an 

attorney withdraws from a case with the consent of his client. Counsel 

for plaintiff argues that because there was no alleged appearance by Ed 

R. Sikorski, notice to appoint another attorney was not required. While 

we agree with plaintiff's conclusion that notice is not required under 

the circumstances of this case, we do so for different reasons. 

13 California Code of Civil Procedure, 5 286, is identical to 

Montana's statute section 93-2104, R.C.M. 1947. The Cal ifornia court in 

Gion v. Stroud, 191 C.A.2d 277, 12 Cal.Rptr. 540, 542, said: 

" * * * for there is California law directly on the point 

that Code of Civ. Proc. 5 286 applies only when an attorney has died or ceased to be an attorney and not when he 

ceased to act for his client in a particular case." 

See also: California Water Serv. Co. v. Edward Sidebotham & Son, Inc. 224 

This rule of law is not all-inclusive, but is applicable here. No 

appearance had ever been made by Ed R. Sikorski. 

Edward R. Si korski 's attorney withdrew from the case and ceased to 

act for his client. Therefore, the notice provided for in section 93-2104, 

R.C.M. 1947, was not required to be given before any further proceedings 

could be instituted against Ed R. Sikorski. For this reason the district 

court was not without jurisdiction when it entered the default judgment. 

The district court also concluded that it was without jurisdiction 

to proceed against Ed R. Sikorski because the plaintiff failed to serve 

upon him the written notice of application for judgment as required by Rule 

55(b)(2), M.R.Civ.P. Counsel for plaintiff argues since there was no 

alleged appearance by Ed R. Sikorski that notice of the application was not 

required under the rule. 

The pertinent provision of Rule 55(b)(2), M.R.Civ.P. is: 

"If the party against whom judgment by default is 

sought has appeared in the action, he (or, if appearing 

by representative, his representative) shall be served 
with written notice of the application for judgment at 

least three days prior to the hearing on such application." 

This Court in Wi 11 iams v. Superior Homes, Inc. , 148 Mont . 38, 42, 

417 P.2d 92, ruled the failure to give a three-day notice was not necessari ly a jurisdictional defect and that the irregularity had been waived 

by failing for three months to apply for relief. 

In the instant case Ed R. Sikorski took no action from the time 

the default judgment had been entered until his death, a period of approximately thirteen months. The judgment was attacked for the first time on 

December 9, 1969, when Veronica Sikorski petitioned to set aside and vacate 

the judgment. Approximately one year and seven months had elapsed. Almost 

four years had passed when the motion to set aside and vacate judgment was 

filed. 

In Williams we held that a failure to give the three-day notice 

did not prejudice the defendant in that case because of defendant's own disregard for the rules in applying for relief. 

Likewise, we cannot say in the instant case that the failure to 

give the three-day notice was a jurisdictional defect. Ed R. Sikorski 's 

apparent lack of interest in the judgment against him and his obvious disregard for the rules leads us to this conclusion. 

Our review of the question of whether the Montana Rules of Civil 

Procedure were followed in setting aside the judgment requires an examination of those rules. 

Rule 60(b), M.R.Civ.P., gives the district court, on motion, the 

discretion to set aside a final judgment under certain circumstances or for: 

"(6) any other reason justifying relief from the operation 

of the judgment." 

Rule 60(c), M.R.Civ.P. provides: 

"Motions provided by subdivisions (a) and (b) of this 

rule shall be heard and determined within the times 

provided by Rule 59 in the case of motions for new trials 

and amendment of judgment. " 

Rule 59(d), M.R.Civ.P., provides: 

"Hearing on the motion shall be had within 10 days 

after it has been served * * * except that at any 
time after the notice of hearing on the motion has been 

served the court may issue an order continuing the 

hearing for not to exceed 30 days. In case the hearing 

is continued by the court, it shall be the duty of the 

court to hear the same at the earliest practicable date 

thereafter, and the court shall rule upon and decide 

the motion within 15 days after the same is submitted. 

If the court shall fail to rule upon the motion within 

said time, the motion shall, at the expiration of said 

period, be deemed denied. " 

Here, the motion was served and notice given on March 29, 1972. 

The hearing was set for April 18, 1972. This hearing was continued for 

the convenience of counsel involved. There is no indication from the 

record that the hearing was continued for "not to exceed 30 days." 

On May 26, 1972, Judge Sorte assumed jurisdiction but it was not 

until July 28, 1972, that he set the motion for hearing on September 8, 1972. 

From the time the motion was served until the motion was set for 

hearing on September 8, 1972, 163 days had elapsed. The order setting the 

hearing date was vacated, and the matter was submitted on written briefs. 

On November 29, 1972 when the judgment was ordered set aside, 82 days had 

passed from September 8, 1972. A total of 245 days had elapsed from the 

date of the service of the motion until it was ruled upon. 

Under Rule 59(d), M.R.Civ.P., the maximum amount of time by which 

the case could have been extended would have been 55 days from the date of 

the service of the motion. 

In the recent decision of Cain v. Harrington, Mont. - , 506 P.2d 

1375, 30 St.Rep. 245, 247, this Court said: 

"We believe the purpose of the rule [Rule 59(d), M.R.Civ.P.1 

should be adhered to and while we do not wish to be technical, at the same time we cannot permit deviations." 

It is not necessary to discuss at this time other provisions of 

the rule which have been set out in the briefs. 

The order of the district court vacating the judgment of 1968 is 

reversed and the matter remanded to the district court for the purpose of 

dismissing the petition of Veronic 
We concur: 

..t , 

Justices 

I