No. 90-333 

4E4- 

IN THE SUPREME COURT OF THE STATE OF MONFANA + .- *,. 

fJ- 1 

1990 V* 

' [I 

.t'+ -, 'qq1 

SHIRLEY SPENCER, 

Plaintiff and Appellant, 

--L .- CLERK OF ! qi - . . ,I ~ - SfATt*< .. 

-vsB. J. UKRA, individually and B. J. UKRA AND ASSOCIATES, 

BUSINESS MANAGEMENT AND TAX CONSULTANTS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George T. Radovich, Billings, Montana 

For Respondent: 

Scott G. Gratton, Anderson Brown Law Firm, Billings, 

Montana 

Filed: 

Submitted: October 19, 1990 

~ecided: January 10, 1991 Y 

9' t '% 

Clefk 
Justice John C. Sheehy, delivered the Opinion of the Court. 

plaintiff Shirley Spencer appeals from an order of the 

Thirteenth ~udicial District Court, Yellowstone County, dismissing 

her complaint against defendants B. J. Ukra, individually, and B. 

J. Ukra and Associates, and Business Management and Tax 

Consultants, for lack of personal jurisdiction. We reverse. 

The sole issue raised by the parties on appeal is whether the 

District Court erred in granting Ukrals motion to dismiss for lack 

of personal jurisdiction. The District Court had concluded that 

service of the Ukra defendants in California pursuant to Montana's 

Long Arm Rule, 4B(1), M.R.Civ.P., was deficient because the 

District Court found that the exercise of jurisdiction over the 

Ukra defendants in the case at bar through service of summons under 

the Long Arm Rule would not be reasonable. 

We have no need to determine those grounds on appeal however, 

because the District Court record shows that the Ukra defendants, 

before they raised the question of personal jurisdiction, had made 

a general appearance in the District Court action and subjected 

themselves to the jurisdiction of the District Court. 

The complaint and the summons issued out of the Yellowstone 

County District Court in this case were served upon the defendants 

in California on January 6, 1989. 

On February 9, 1989, there having been no appearance made by 

the Ukra defendants, on motion of counsel for the plaintiff, the 

District Court clerk entered the default of the Ukra defendants. 
On March 7, 1989, the Ukra defendants, through their counsel, 

filed a written motion to set aside the default pursuant to Rules 

55 (c) and 60 (b) M.R.Civ.P. The written motion recited that the 

summons and complaint were served on January 6, 1989; that the Ukra 

defendants retained Montana counsel on March 4, 1989; that 

plaintiff's counsel had stipulated to setting aside the default and 

that the defendants1 motion to set aside the default was made 

solely upon the grounds that through inadvertence and excusable 

neglect the defendants had failed to make an appearance within the 

time allowed by law. The concluding paragraph of the written 

motion stated: 

Therefore, Defendants hereby request an order setting 

aside the default issued by this Court and appear 

herewith and ask leave of Court allowing Defendants (20) 

days to file a response to the complaint. (Emphasis 

added. ) 

On March 20, 1989, counsel for the Ukra defendants filed in 

the District Court two stipulations between counsel. One 

stipulation was to the effect that the default entered against the 

defendants could be set aside and that the defendants have 20 days 

thereafter within which to file "a response to the Complaint in 

this action." The second stipulation provided that the Ukra 

defendants would have to and including April 11, 1989, to answer 

and respond to the plaintiff's combined discovery requests 

propounded "upon1' them on January 6, 1989. 

On March 22, 1989, the District Court entered its order 

setting aside the default, based upon the motion of the Ukra 

defendants, and pursuant to the stipulation between counsel and 
granted the defendants 20 additional days within which to file "a 

response to the complaint in this action.'' 

On April 10, 1989, the defendants filed a motion in the 

District Court to dismiss the action for lack of personal 

jurisdiction and failure to state a claim pursuant to Rule 12(b), 

Thereafter, after a series of briefs, motions for discovery 

and to compel discovery, and orders for the same, the District 

Court, on June 8, 1990, dismissed plaintiff's action for lack of 

jurisdiction over the defendants. It is from this order that 

plaintiff appeals. 

The first appearance of the Ukra defendants in this case was 

a motion to set aside the judgment, based solely upon inadvertence 

and excusable neglect. No issue was raised at that time or in that 

motion of the lack of personal jurisdiction over the defendants. 

Motions to vacate a judgment on the ground of mistake, 

inadvertence, accident, surprise, or excusable neglect, and not on 

jurisdictional grounds, have been held to constitute a general 

appearance. 5 Am. Jur. 2d Appearance 5 32, at 505-06. 

The general rule is stated thusly: 

Personal jurisdiction may be acquired over a nonresident 

by his voluntary general appearance. If he makes such 

an appearance in person or by attorney, he submits 

himself to the jurisdiction of the court and the court 

may make a personal adjudication against him; he cannot, 

if unsuccessful, avoid the effect of the judgment or 

other decision by urging that he was a nonresident and 

that the court pronouncing judgment against him had no 

jurisdiction over him. 

5 Am. Jur. 2d Appearance 5 11, at 488. 
This rule of general appearance is also established in 

Montana. In Haggerty v. Sherburne Mercantile Co. (1947) 120 Mont. 

386, 395, 186 P.2d 884, 891, this Court said: 

In Gravelin v. Porier, 77 Mont. 260, 274, 250 P. 823, 

826 this Court said: "In fact, any act which recognizes 

the case as in court constitutes a general appearance, 

and even in the face of a declared contrary intention, 

a general appearance 'may arise by implication from the 

defendant seeking, taking, or agreeing to some step or 

proceeding in the cause beneficial to himself and 

detrimental to the plaintiff, other than one contesting 

only the jurisdiction of the court. (Citing authority. ) 

The voluntary general appearance by the defendant is a waiver 

of the issuance or service of the summons and consequently of any 

defects or irregularities therein. Haqqerty, 186 P.2d at 890. 

Haqserty was decided before the adoption by this Court of our 

Rules of Civil Procedure modeled on the federal Rules. It is true 

that ordinarily, a defendant pleading under Rule 12(b), M.R.Civ.P., 

may raise the issue of lack of jurisdiction over the person, by 

motion, which shall be made before pleading further if a further 

pleading is permitted, or the objection to personal jurisdiction 

may be combined with other general defenses. However even under 

our Rules of Civil Procedure, such objection to lack personal 

jurisdiction must be made at the time of the initial appearance in 

the District Court. 

The point is illustrated in the Colorado case of Weaver 

Construction Co. v. District Court for El Paso City, (Colo. 1976), 

545 P.2d 1042. In that case, involving two defendants, one had 

been served properly with summons and complaint, and the other had 

not. They filed a joint motion to set aside a default judgment 
under Colorado's Rule 60(b) on the grounds (1) that there was a 

meritorious defense, and (2), that the judgment was void for lack 

of proper service. The Court stated the effect of those grounds: 

On or about October 15, 1975, defendants Robert and Joy 

Grinnell, through counsel, filed several documents with 

the District Court: an entry of special appearance, a 

motion to quash service of process, and a statement of 

meritorious defense. The filing of these documents was 

an attempt to appear solely for the purpose of contesting 

personal jurisdiction. Had the district court found that 

personal jurisdiction existed, then in the alternative 

the Grinnells would have entered a general appearance for 

the purpose of setting aside the default judgment and 

receiving a trial on the merits. Their statement of 

meritorious defense specified several grounds of defense 

to the merits of the allegations in the complaint. 

A hearing on the motions was conducted on October 27, 

1975. The trial judge set aside the default judgment as 

to Robert Grinnell because of the lack of proper service 

and process, and as to Joy Grinnell because of excusable 

neglect, and the presence of the statement of 

meritorious defense. 

Weaver, 545 P.2d at 1044. 

The Colorado Supreme Court held that as to the person not 

served, the default judgment was vacated, but as to the other, the 

one moving for excusable neglect, the default was merely vacated. 

The Court explained as follows: 

The general appearance sub j ected Robert Grinnell only to 

the jurisdiction of the court from the date of the 

appearance, and is not retroactive as to validate the 

void judgment. (citing authority.) The subsequent 

filing of an entry of special appearance as an 

alternative pleading would have constituted a special 

appearance, avoiding the continuing jurisdiction of the 

court, had it been his initial appearance. However, once 

a person subjects himself to the jurisdiction of the 

court by entering a general appearance, he cannot 

withdraw the earlier appearance and escape the 

jurisdiction of the court. (Emphasis supplied.) 

Weaver, 545 P.2d at 1046. 
In the case at bar, the Ukra defendants, having moved the 

court to set aside the default in their initial appearance, without 

at the same time preserving the question of lack of personal 

jurisdiction, consented to the general jurisdiction of the court 

and their appearance was general. This conclusion is also 

fortified by a written "Notice of Appearancev1 also filed by 

defendants on March 7, 1989, in the District Court which stated as 

follows: 

PLEASE TAKE NOTICE that the firm of Anderson, Brown, 

Gerbase, Cebull, Fulton, Harman, and Ross, P. C., by Scott 

G. Gratton, appears herein for the defendants B. J. Ukra, 

individually, and B. J. Ukra and Associates, Business 

Management and Tax Consultants and requests that you make 

service of all pleadings at the firm address. 

The foregoing notice of appearance also, under our statutes, 

is an appearance. The pertinent statute provides: 

25-3-401. Notice ~esuirements After Appearance of 

Defendant. A defendant appears in an action when he 

answers, files a motion, or gives the plaintiff written 

notice of his appearance or when an attorney qives notice 

of appearance for him or has such appearance entered in 

open court. After appearance, a defendant or his 

attorney is entitled to notice of all subsequent 

proceedings in which notice is required to be given. 

(Emphasis supplied.) 

The rule is that a party defendant may not first make the 

general appearance or file a motion submitting to the general 

jurisdiction of the court, which motion in effect recognizes the 

validity of the action taken by the court against him, and then 

later disputes the personal jurisdiction of the court over the 

defendant. Collings v. Phillips (Wis. 1972), 194 N.W.2d 677. 

Because the Ukra defendants made an initial appearance to vacate 

the default without reserving the question of personal 
jurisdiction, their appearance was general, and waived all 

irregularities with respect to the service of process. 

Accordingly, the decision of the District Court 

n 

is reversed. 

<)&@Justice 

We Concur: V 4' c'r---+-r*,c- / 

Chief Justice