No. 86-526 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DAVID SIEWING and ARNOLD SIEWING, 

Plaintiffs and R.espondents, 

-vsPEARSON COMPANY, a corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Phillips, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bosch, Kuhr, Dugdale & McKeon; John C. McKeon, 

Malta, Montana 

For Respondent: 

Robert Hurly, Glasgow, Montana 

Filed: 

Submitted on Briefs: March 5, 1987 

Decided: April 21, 1987 
Mr. 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 District Court of the Seventeenth Judicial 

District, County of Valley. 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 spill uncontrollably out of the machine. 

Siewings contacted Pearson Co. and voiced their 

dissatisfaction. Pearson Co. offered to replace the machine 

and delivered a second machine to the Siewings. After 

determining the machine to be identical to 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 response was received. 

A second letter was sent by Hurly on April 1, 1986. This 

time the letter was addressed to Bob Melton, a salesman for 

Pearson Co., 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 response was received. 

A complaint alleging breach of warranty was filed April 

22, 1986. Pearson Co. was served with a summons and a copy 

of the complaint on May 5, 1986. Neither a motion to dismiss 

nor an answer was filed by Pearson Co. Siewings moved on May 

28, 1986, to enter the default of the defendant. Default was 
entered 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, John C. McKeon, to represent the defendant. 

McKeon advised the defendant 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, on August 21, 1986, McKeon filed a motion 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 few pertinent facts. 

Service of the summons of 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 

Senior Vice President did 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 Pearson Co. and resigned on May 16, 1986. The documents 
in 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 Tom Davis, who had been Pearson Co.'s controller 

for three months. 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 

was based on excusable neglect and that excusable neglect had 

not been proven by Pearson Co. He further found that had the 

additional facts been properly before the court, there still 

would be inadequate proof of excusable neglect and therefore, 

there was no need for the supplementary affidavit. 

Pearson now appeals the denial of its motion to have the 

default judgment set aside. One issue is before 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 relieve a party from a final judgment when 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 neglect was 

the affidavit of James Shook. That affidavit is devoid of 

any facts which might prove excusable neglect. We do not 
know why Knupple did not bring the complaint to 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 do not know why Shook chose to go on vacation, 

leaving pursuance 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 evidence presented to the trial judge proves 

excusable neglect. The failure to appear due to 

forgetfulness and the press of other, more important 

business, is not sufficient to establish excusable neglect. 

Foster Apiaries, Inc. v. Hubbard Apiaries, Inc. (Mont. 19811, 

630 P.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 excusable neglect. 

We do not find an abuse 

is affirmed. 

We concur: Justic 

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5 
Justices