No. 14959 

IN THE SUPREP? COURT OF THE STATE OF MONTANA 

1980 

MARTIN L. NEURINGER, 

Plaintiff and Appellant, 

RICHARD WORTMAN, CONSERVATIVE 

INVESTOR'S GROUP, GARY J. GRIFF and 

and GERLAD J. CAPLAN, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

J. David Penwell argued, Bozeman, Montana 

For Respondent: 

McKinley Anderson argued, Bozeman, Montana 

Landoe, Brown, Planalp, Kommers & Lineberger, 

Bozeman, Montana 

James Johnston argued, Bozeman, Montana 

r r g 1 ,-. Filed: .i - c pV3 

Submitted: January 16, 1980 

Decided: FEB J 7980 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiff appeals from the denial of a motion seeking 

a 30-day extension to file a notice of appeal pursuant to Rule 

5, M.R.App.Civ.P. 

Final judgment in the underlying matter was served on 

counsel for the plaintiff on May 29, 1979, Judgment was entered 

by the District Court on May 22, 1979. Rule 5, M.R.App.Civ.P. 

provides that an appeal from a judgment must be taken within 30 

days of the entry thereof. This rule also provides that the time 

for filing the appeal may be extended an additional 30 days by 

the District Court if there is a showing of excusable neglect. 

Here plaintiff filed a motion requesting an additional 30 

days to file the notice of appeal more than 30 days after the entry 

of judgment. Plaintiff alleged excusable neglect and introduced 

into evidence three affidavits to this effect. 

According to the affidavits the following events transpired: On May 17, 1979, the court's findings of fact and conclusions of law were received by plaintiff's counsel. On May 23 

plaintiff was informed of this during a phone conversation with 

his attorney. Plaintiff was in New York or New Jersey at this 

time. Plaintiff was also informed that he had 30 days after entry 

of judgment to file an appeal. Plaintiff stated that he would let 

his attorney know if he wished to make an appeal after he received 

notice of entry of judgment. The secretary of the plaintiff's 

attorney mailed a copy of the notice of the entry of judgment to 

the plaintiff on May 30, 1979. Plaintiff did not receive this 

notice in the mail and he called his attorney on July 18 to ask 

about the matter. Upon learning the facts the plaintiff requested 

that his lawyer seek the 30 day extension provided by Rule 5. It 

is from the denial by the District Court of this 30 day extension 

that plaintiff appeals. 
The only issue presented upon appeal is whether the District Court erred in not granting plaintiff's motion to extend 

the time for filing a notice of appeal under Rule 5, M.R.App. 

Civ. P. 

Rule 5 states, in part: 

"The time within which an appeal from a judgment 

or an order must be taken shall be 30 days from 

the entry thereof . . ." 

The last sentence to this rule provides: 

"Upon showing of excusable neglect, the district 

court may extend the time for filing the notice 

of appeal by any party for a period not to exceed 

30 days from the expiration of the original time 

prescribed by this Rule." 

From a reading of this language it is clear that questions 

of excusable neglect in this context are addressed to the sound 

discretion of the District Court. Our review, therefore, is 

limited to whether the District Court abused that discretion. 

There have been a number of Montana cases which have considered the concept of excusable neglect. The standard of review 

was stated in the case of Brothers v. Brothers (1924), 71 Mont. 

"'Each case must be determined upon its own facts; 

and, when the motion is made promptly and is 

supported by a showing which leaves the court in 

doubt, or upon which reasonable minds might reach 

different conclusions, the doubt should be resolved in favor of the motion.' No great abuse of 

discretion by the trial court in refusing to set 

aside a default need be shown to warrant a reversal, 

for the courts universally favor a trial on the 

merits. 

"No two cases will be found which present the same 

circumstances for consideration, for each depends 

upon its own facts. . ." (Citations omitted.) 

It must be noted that most Montana cases, such as Brothers, 

which deal with excusable neglect, are concerned with the setting 

aside of default judgments. See Kootenai Corporation v. Dayton 

(1979) Mont . , 601 P.2d 47, 36 St.Rep. 1785. The policy 

a 

behind the setting aside of/default judgment has consistently been 
to allow a defendant to present his defense, A defaulted defendant should have his day in court in order that his case 

may be decided upon the merits. 

The only Montana case which has considered excusable neglect 

in connection with Rule 5, M.R.App.Civ.P. is McCormick v. 

McCormick (1975), 168 Mont. 136, 541 P.2d 765. In McCormick 

the appellant had decided not to appeal and then, after the time 

for filing a notice of appeal had lapsed, she decided that she 

did want to appeal. This Court said: his change of mind is 

not one of those extraordinary cases for which an extension of 

time to file an appeal is allowed under Rule 5." 168 Mont, at 

141. The test used in McCormick is: If there is any doubt as 

to excusable neglect, it should be resolved in favor of the party 

moving to have the 30-day extension. This test was adopted from 

the above-quoted language from Brothers. 

Whether notice to an attorney constitutes notice to a 

client in the context of excusable neglect under Rule 5 has not 

been considered by this Court. Federal courts have, however, 

considered this question under their identical Rule 73(a) of the 

Federal Rules of Civil Procedure. (Now Rule 4(a), Federal Rules 

of Appellate Procedure.) 

The case of Winchell v. Lortscher (8th Cir. 1967), 377 

F.2d 247, presents a fact situation which is virtually identical 

to the instant case. In Winchell the plaintiff's attorney was 

served with notice of the entry of judgment but the client did 

not receive notice until after the 30 days had expired because 

he was "continuously traveling throughout this country and abroad 

during the period in question." The District Court found this 

testimony "lacking in credibility" but it nevertheless held it to 

be excusable neglect. The Eighth Circuit reversed. 

The holding was based upon the conclusion that service 

upon an attorney is service upon the client. They came to this 
conclusion by construing two of the Federal Rules of Civil Procedure (Rules 77 (d) and 5 (b) ) , which are identical in pertinent 

part to the corresponding Montana Rules of Civil Procedure. Rule 

77(d) provides in essence that the clerk must serve a notice of 

entry of judgment upon each party and this "is sufficient notice 

for all purposes for which notice of the entry of an order is 

required by these rules . . ." Rule 5(b) provides that whenever 

service is required by the rules "upon a party represented by an 

attorney the service shall be made upon the attorney . . .I1 The 

Court said: 

"The inescapable conclusion that must be drawn 

when reading these notes and the rules to which 

they apply is that when the rules speak of giving 

notice to a party, they are expressing the accepted 

legal principle that notice to the attorney is 

notice to the party. See, Annotation, Extension 

of Time For Appeal, 9 L.Ed.2d 1088, 1092-1093. It 

is the duty of the attorney to act for his client 

in all legal matters. When notice was received by 

appellant's attorney on August 2, 1966, there was 

timely notification to a party within the meaning 

of Rule 73(a) and it was therefore incumbent upon 

counsel to take timely action within the original 

30 days after the entry of an appealable order to 

preserve his right of appeal. This he failed to 

do." 377 F.2d at 253-254. 

The reasoning of the Winchell case applies to the present 

case. In the present case the plaintiff's attorney had notice 

shortly after the judgment was entered. The plaintiff actually 

knew that the case had been decided against him. He knew that he 

had 30 days from the entry of judgment within which to file an 

appeal and yet he waited approximately 8 weeks to contact his attorney. Given these factors, plus the fact that the attorney was 

served with the required notice, the District Court did not abuse 

its discretion in finding there was no excusable neglect. 

Affirmed. 

Chief Justice 
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Justices