No. 86-526
IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

DAVID SIEWING andARNOLD SIEWING, Plaintiffsand R.espondents,-vsPEARSONCOMPANY, a corporation, Defendant andAppellant.

APPEAL FROM: District Court of the Seventeenth JudicialDistrict, Inand for the County of Phillips, The Honorable Leonard Langen, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Bosch, Kuhr,Dugdale & McKeon;John C. McKeon, Malta,Montana ForRespondent: Robert Hurly, Glasgow,Montana

Filed: Submitted on Briefs: March 5, 1987 Decided: April 21, 1987Mr. Justice L.C. Gulbrandson delivered the Opinion of the Court.

Pearson Company, defendant and appellant, appeals the denial of a motion to set aside a default judgment entered against it in the DistrictCourt of the Seventeenth Judicial District,County ofValley. We affirm. David and Arnold Siewing, respondents,purchased a seed cleaning machine from Pearson Co. in April 1985. Siewings were dissatisfied with the performance of the machine. The screen through which the seed passed was allegedly warped, causing the seed to spilluncontrollably out of themachine. Siewings contacted Pearson Co. and voiced their dissatisfaction. Pearson Co. offered to replace themachine and delivered a second machine to the Siewings. After determining the machine tobe identicalto the first in every respect other than size of the motor, Siewings refused delivery. On January 23, 1986, Robert Hurly, attorney for the Siewings, wrote Pearson Co. requesting an immediate, full refund on the machine and compensation for the damages suffered by Siewings. No satisfactory responsewas received. A second letter was sent by Hurly on April 1, 1986. This time the letter was addressed to Bob Melton, a salesman for PearsonCo., with whom Hurly had been in telephone contact. The letter stated that unless satisfaction was forthcoming within ten days, a lawsuit would be filed. A copy of the complaint accompanied the letter. No responsewas received. A complaint alleging breach ofwarranty was filed April 22, 1986. Pearson Co. was served with a summons and a copy of the complaintonMay 5,1986. Neither amotion todismiss
nor an answerwas filedby PearsonCo. Siewingsmoved onMay 28, 1986,to enter the default of the defendant. Default wasentered the same day. Evidence pertaining to damages was presented to the court on July 23, 1986. Findings of fact, conclusions of law and judgment were signed by the judge on July 29, 1986, and filed with the clerk of court on July 31, 1986.On July 25, 1986, the defendant contacted and engaged a Montana attorney,JohnC. McKeon, to representthedefendant. McKeon advised thedefendant that he had been present in open court on July 23, 1986, and had observed the presentation of testimony leading to the entry of the default judgment. Thereafter, onAugust 21, 1986,McKeon filed amotion to set aside the default judgment. The motion was accompanied by the affidavit of James L. Shook, Vice President and Assistant Secretary of Pearson Co. The affidavit contained very fewpertinent facts. Service of the summonsof this action was served to Pearsons to our mail carrier on or about May 5, 1986. Our mail carrier delivered said notice to our Senior Vice President. Through an oversight, our SeniorVice Presidentdid not respond and has since left our employment. Upon finding the correspondence in his desk, we immediately started proceedings.
On July 25, 1986, we first contacted and engaged our attorney, Mr. John McKeon,

# . .. to represent US. The motion to set aside the default judgment was heard September 3, 1986. At that hearing,McKeon requested leave for Shook to file a supplementary affidavit. McKeon presented the facts which would be included in the supplementary affidavit. McKeon told the court that the complaint had been received by Harry Knupple, a Vice-President with Pearson Co. Knupple was dissatisfied with PearsonCo. and resigned onMay 16, 1986. The documentsin Knupple's possession were placed in a box which was given to James Shook. Shook found the complaint in this cause on July 1, 1986. Shook was leaving on vacation so gave the complaint to TomDavis,who had been PearsonCo.'s controller for threemonths. Davis was asked to immediately respond to the complaint and on July 25, 1986, he contacted attorney McKeon

# . At the close of the hearing, the motions to set aside the default judgment and for supplementary affidavit were denied. The trial judge held that the motion to set aside
wasbased on excusableneglect and that excusable neglecthad not been proven by Pearson Co. He further found thathad the additional facts been properly before the court, there still would be inadequate proof of excusable neglect and therefore, therewas no need for the supplementary affidavit. Pearsonnow appeals the denialof its motion tohave the default judgment set aside. One issue isbefore us. Did the trial judge err in denying Pearson Co.'s motion to set aside Siewings' default judgment? We find no error. Rule 60(b), M.R.Civ.P., provides the trial judge with discretion to relieveaparty froma final judgmentwhen that judgment is acquired due to the party's mistake, inadvertence, surprise, or excusable neglect. Rule 55(c), M.R.Civ.P., provides that good cause must be shown before the court may set aside an entry of default. The party seeking to set aside the entry of default has the burden of proof. First National Bank of Cut Bank v. Springs (Mont. 1987), 731 P.2d 332, 335, 44 St. Rep. 44, 47. In this case, Pearson is attempting to prove excusable neglect for its failure to appear. The only admissible evidence presented by Pearson to prove excusable neglectwas the affidavit of James Shook. That affidavit is devoid of any facts which might prove excusable neglect. We do notknowwhy Knupple did notbring the complaintto the attention of other individuals before his departure. We do not know why Shook took from May 16 to July 1 to discover the complaint. We donot knowwhy Shook chose to go onvacation, leavingpursuance of an answer to a new employee. We do not know why that new employee took more than three weeks to contact an attorney regarding the complaint. The proper standard of review when a trial judge denies
a motion to set aside an entry of default is whether there has been a slight abuse of discretion. If the trial judge grants the motion to set aside, the standard of review is whether there has been a manifest abuse of discretion. See discussion in Lords v. Newrnan (Mont. 1984), 688 P.2d 290,

None of the evidencepresented to the trial judgeproves excusable neglect. The failure to appear due to forgetfulness and the press of other, more important business, is not sufficient to establish excusable neglect. FosterApiaries, Inc. v. HubbardApiaries, Inc. (Mont. 19811, 630P.2d 1213, 1216, 38 St.Rep. 1025, 1028-1029. Inattention to incoming mail and taking of a vacation at Christmas are insufficient proof of excusable neglect. Griffin v. Scott (Mont. 1985), 710 P.2d 1337, 42 St.Rep. 1695. Likewise, a failure to appear caused by inattention to pertinent documents, the resignation of a company officer and the taking of a summer vacation by another officer do not establish excusableneglect. We do not find an abuse is affirmed.

We concur: Justic

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5Justices