No. 13570 

IN THE SUPREMr COURT OF THE STATE OF MONTANA 

1977 

WILLIAM F.BEO SPRING, S&' 

and KATHLEEN R . BIG SPRING,, 

Plaintiffs and Respondents, 

THE BLACKFEET TRIBE OF THE BLACKFEET 

INDIAN RESERVATION, A Corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Philip E. Roy, Browning, Montana 

Graybill, Ostrem, Warner and Crotty, Great Falls, 

Montana 

Donald Ostrem argued, Great Falls, Montana 

For Respondents: 

Frisbee and Moore, Cut Bank, Montana 

John P. l.1oore argued, Cut Bank, Montana 

Submitted: October 6, 1977 

~ecided: JAN 1 1 1370 

Filed: 'JA I.! 1. i. 159 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court: 

The Blackfeet Tribe of the ~IBckfeet Indian Reservation, 

appeals from a default judgment of $20,000 damages for libel 

entered against the Tribe by the District Court, Glacier County. 

The basis for the libel action was a letter dated March 

18, 1974, allegedly written by Earl Old Person, Chairman of the 

Blackfeet Tribe, to William F. Big Spring, Sr. and Kathleen R. 

Big Spring. The letter concerned the Big Springs, enrolled 

members of the Blackfeet Tribe, and it was sent to the Big Springs 

as well as to other people outside the reservation. 

On March 17, 1976, the Big Springs filed a libel action 

against the Blackfeet Tribe. The same day, even though the 

Tribe had not been served with the complaint and summons and 

had made no appearance, the attorney for Big Springs mailed a 

request for admissions to the Tribe's attorney, but did not mail 

a copy of the summons and complaint. On March 22, 1976, the 

sheriff served Earl Old Persons with a copy of the summons and 

complaint. On April 2, Big Springs' attorney served the Tribe's 

attorney with a supplemental request for admissions. 

The Tribe failed to appear within 20 days of the date of 

service. 22 days after service, on April 13, 1976, the Big 

springs' attorney filed the original sheriff's return on the 

summons with the clerk of the district court and then made written 

request for the clerk to enter the Tribe's default. Default was 

entered the same day. 

Three days after entry of default, on April 16, and without 

receiving notice of the default, the Tribe filed a motion to 

dismiss the complaint on the grounds that the court lacked juris- 
diction over the subject matter (the libel action) and 

personal jurisdiction over the Tribe. The Tribe mailed a 

copy of its motion to dismiss to the Big Springs' attorney. 

On April 20, with no notice to the Tribe, the Big Springs' 

attorney filed a written motion to strike the Tribe's motion 

to dismiss, alleging that the Tribe had no right to file such 

a motion or to appear after its default had been entered. No 

authority was cited. On April 21, the trial court granted this 

ex-parte motion and immediately proceeded to hear evidence on 

the question of liability and damages. Exhibits were introduced 

and witnesses were sworn and testified. The court took the 

matter under advisement. 

On April 23, the Tribe filed a motion to set aside the 

default .and to quash the summons and dismiss the complaint. 

The Tribe set out several grounds to set aside the default 

including that (1) service was not made on the proper person, 

(2) the tribal chairman had no recollection of ever being served, 

(3) copies of the complaint and summons could not be found, and 

(4) the Tribe's attorney had no way of determining the exact day 

of service because the original summons had not been returned to 

the clerk of court until the day the default was taken. The 

Tribe again contended the court had no jurisdiction over the 

subject matter and over the Tribe. The Tribe stressed that it 

was appearing specially and not generally. 

Two hearings were held on the Tribe's motion to set aside 

the default and dismiss the complaint. The first hearing was 

the result of a notice sent by the attorney for the Big Springs 

on April 29 setting the hearing date for May 5. This notice was 

deficient under Rules 6(d) and 6(e), M.R.Civ.P., which require 
a notice of at least eight days if service is made by mail. 

Neither the Tribe's attorney nor any of defendants were present 

at the hearing. (At a later hearing the Tribe's attorney 

sought to justify his absence at the first hearing by stating 

he was in Chicago at the time and had called the court after 

learning of the hearing date, and the trial court had agreed to 

a continuance. The court did not deny this.) The court then 

proceeded with its hearing and received evidence on the question 

of service of process. Nothing in the record indicates the 

court ruled on the Tribe's motion to set aside the default, or 

that a minute entry or other notice was sent to the fribe's 

attorney informing him of what proceedings had taken place on 

that day. 

On June 2, 1976, the Tribe's attorney sent notice by mail 

to the Big springs' attorney setting a hearing for June 9 on 

the Tribe's motion to set aside the default. This notice was 

also deficient under Rules 6(d) and 6(e), M.R.Civ.P., but 

attorneys for both parties appeared at the hearing and therefore 

notice here is not at issue. On the date of the hearing, the 

attorney for the Big Springs filed a motion to quash the Tribe's 

motion to set aside the default on the grounds that (1) the 

Tribe had failed to appear at the prior hearings, (2) the Tribe 

had no right to make any appearances at this point, and (3) the 

notice was not accompanied by the motion to set aside or by an 

affidavit. Both attorneys presented their arguments to the 

court. The District Court judge stated that normally he would 

set aside the default when a motion or pleading was filed "within 

a reasonable time" after the 20 day period, such as this case, 

but concluded: 
"* * * but the problem here, of course, is that 

it [the motion to set aside the default] was 

set for hearing and you failed to appear and argue 

the motion." 

The court then took the motion under advisement. 

On June 29, without ruling directly the motion 

set aside the default, the trial court entered its findings of 

fact and conclusions of law and awarded the Big Springs $20,000 

in damages against the Tribe. Judgment was entered July 6 

and on the same day the Big Springs' attorney sent a copy of 

the judgment and notice of entry of judgment to the Tribe. On 

July 12, the Tribe moved to set aside the judgment. On July 21, 

in a short order devoid of reasons, the trial court denied the 

motion to set aside the judgment. The Tribe appeals from the 

court's rulings failing to set aside the default and failing 

to set aside the judgment. 

On the basis of the total circumstances surrounding the 

proceedings in the District Court we conclude the Tribe was 

denied a meaningful opportunity to appear and be heard. The 

District Court proceedings reek of a denial of due process and 

the default judgment and default must be set aside. 

Rule 5(f), M.R.Civ.P., states that proof of service 

"shall be filed within 10 days after service. Failure to make 

of 

proo-f/service does not affect the validity of the service." 

The rule, as stated, is unconditional. Here, the attorney for 

the Big Springs did not return and file the summons with proof 

of service until 22 days after service on Earl Old Person. 

Although this late return did not affect the validity of the 

service for jurisdictional purposes, it did make it difficult 

for the Tribe's attorney to determine the date of service. Here 

the summons was returned and filed simultaneously with a motion 
to take the Tribe's default. It could well be that the failure 

to return the summons within the time required by the rule could 

have contributed to the Tribe's failure to appear within the 

20 days. Lack of an opportunity to acquire this information, 

coupled with other circumstances, may be sufficient "good cause" 

to set aside a default under Rule 55(c), M.R.Civ.P., which states 

in part: 

"For good cause shown the court may set aside 

an entry of default * * *.If 

Henceforth, it shall be the duty of all process servers, 

be it the sheriff or private persons, to strictly comply with 

Rule 5(f), M.R.Civ.P. It is the duty of the process server to 

return the summons to the clerk of court within 10 days after 

service, and this duty shall only be excused under circumstances 

which constitute "good cause". "Good cause" shall relate only 

to the difficulty which the process server has in filing the 

papers with the appropriate clerk of court. 

The Tribe finds itself in a position of not knowing why 

the District Court overruled its motion to set aside the default. 

Not only did the trial court fail to give reasons for denying 

the motion to set aside the default, but no ruling was directed 

to the Tribe's motion. The Tribe's motion was only impliedly 

overruled by the judgment against the Tribe. In matters of such 

importance the parties are entitled not only to a direct ruling 

from the trial court on the motion, but they are also entitled 

to know the reasons for the ruling. In its motion the Tribe set 

out substantial grounds why the default should be set aside, and 

since the District Court failed to discuss these grounds, we 

cannot uphold the rule that a judgment of the trial court comes 

to us as presumptively correct. We adhere to our rule that this 
Court does not favor defaults, but rather, favors an adjudication on the merits whenever possible. Lindsey v. Keenan, (1946), 

118 Mont. 312, 322, 165 P.2d 804. See also: Schwab v. Bullock's 

Inc., (9th Cir. 1974), 508 F.2d 353,355; 10 Wright & Miller, 

Federal Practice & Procedure: Civil $2681, pp. 248-251. 

It follows naturally that if the default must be set aside 

so must the judgment. However, there are independent reasons why 

the default judgment must be set aside, even if the default was 

allowed to stand. 

Once the Tribe filed its initial motion to dismiss before 

judgment was entered, it was entitled to notice of all subsequent proceedings, but it was denied this notice. Rule 55(b)(2), 

M.R.Civ.P., states in part: 

"* Jc * 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. 3r * *" 

Section 93-8505, R.C.M. 1947, also entitles a party to notice 

of subsequent proceedings after an "appearance" by that party. 

This section states in part: 

" A defendant appears in an action when he 

answers, files H-motion, or gives the plaintiff 

written notice of his appearance * * *.Ir 

(Emphasis added). 

Two days after default was entered, but before default 

judgment was taken, the Tribe filed its motion to dismiss on 

jurisdictional grounds. A motion to dismiss on the basis of lack 

of subject matter jurisdiction may be raised at any time. Rule 

12(h)(3), M.R.Civ.P.; I"gm' .W d v. McCloskey & Co.,(Brd Cir. 1965), 

342 F.2d 495, 497, cert. den. 382 U.S. 823, 86 S.Ct. 52, 15 

L ed 2d 68; Rath Packing Co. v. Becker, (9th Cir. 1975), 530 F.2d 
1295, 1303. Moreover, this Court has long held a motion 

attacking the complaint, as in the instant case, is sufficient 

to act as an appearance. Donlan v. Thompson Falls Copper & 

Milling-Co., (1910), 42 Mont. 257, 112 P. 445. 

Even though the Tribe denominated its appearance as a 

special one, it was still an appearance under any circumstances. 

Under Rule 12, M.R.Civ.P., there is no longer a distinction 

between general and special appearances. Under Rule 12(b) 

lack of jurisdiction may be asserted either in the responsive 

pleading or by motion; Rule 12(g) allows consolidation of Rule 

12(b) defenses; and Rule 12(h) (1) requires a party to raise the 

defense of lack of personal jurisdiction in his initial pleading 

The Tribe complied with each of these rules. 

Since the Tribe properly appeared, it follows that it was I 

improper for the trial court to grant the Big Springs' ex parte 

motion to strike the ~ribe's motion to dismiss. Once the Tribe 

filed its appearance the Big Springs were required to give notice 

to the Tribe of any opposing motion. Rule 5(a), M.R.Civ.P., 

provides in part: 

"* * * Except as other wise provided in these 

rules, every * * * written motion other than one 

which may be heard ex parte, and every written 

notice * * * and similar paper shall be served upon 

each of the parties. * * *" 

It is clear the trial court had no procedural authority 

strike the Tribe's motion to dismiss. Once the Tribe had made 

its appearance by filing its motion to dismiss, it was the 

duty of the court to require notice to the Tribe of any opposing 

motion. Moreover, the District Court had a duty to rule on 

the Tribe's motion before proceeding to judgment. Paramount 

~ublj# Corp. v. Boucher, (1933), 93 Mont. 340, 347, 19 P. 2d 223. 
Even assuming the District Court ruled against the Tribe 

on its motion to dismiss and the Tribe did not further plead 

within the time requirements, the Big Springs still had the 

duty to give at least a three day notice to the Tribe before 

a hearing could be held on the Big Springs' application to 

(2) 

take judgment. Rule 55(b)/, M.R.Civ.P. This, of course, was 

not done, and the Tribe had no opportunity to participate at 

the hearing where the trial judge heard evidence upon which the 

judgment was based. 

These failures to give proper notice were fatal to the 

judgment. Under the totality of the circumstances such as 

exist in this case, we can see no useful punpose in setting 

aside the judgment only to allow the parties to relitigate the 

question of whether the default should be set aside. The entire 

proceedings were so lacking such as to constitute a denial of 

due process. 

The trial court has not yet ruled on the issues of jurisdiction over the subject matter and personal jurisdiction over 

the Tribe, and we refrain from deciding these issues. Similarly, 

the proper test for damages in a defamation action is not properly 

before this Court at this time. For instructions regarding the 

correct basis of damages in a defamation action, however, we 

direct the Discrict Court's attention to New York Times Co. v. 

Sullivan, (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L ed 2d 686, 

95 ALR2d 1412; Gertz v. Welch, (1974), 418 U.S. 323, 94 S.Ct. 

2997, 41 L ed 2d 789, and related federal cases. 

We vacate the default judgment and the default and remand 

with directions to the District Court to rule on the Tribe's 
motion to dismiss and proceed further under the proper rules 

of civil procedure. 

.. -. 

Chief Justice