No. 14486 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 79 

THE KOOTENAI CORPORATION, 

a Montana Corporation, 

Plaintiff and Respondent, 

WAYNE L. DAYTON and 

JEROME F. BORKOSKI, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault, Judge presiding. 

Counsel of Record: 

For Appellants: 

Milodragovich, Dale and Dye, Missoula, Montana 

Harold Dye argued, Missoula, Montana 

For Respondent: 

Robert B. Brown argued, Stevensville, Montana 

Submitted: September 18, 1979 

Decided : OcT r I979 

Filed: ~JCT ; rP 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant, Jerome F. Borkoski, appeals from a denial of 

a motion to set aside a default judgment. 

On March 27, 1974, Wayne Dayton agreed to buy from the 

Kootenai Corporation (Corporation) a certain parcel of real estate in Ravalli County, Montana. The contract provided that payment for the land would be made over several years and when the 

full purchase price was paid title would pass to the buyer. The 

transfer of this property also included the transfer of an onpremise beer license to the buyer. The agreement provided that 

in the event of a default by the buyer that all of Buyer's interest 

in the property would terminate and that the Buyer "shall reassign 

the beer license." 

On December 30, 1974, this contract was assigned by Wayne 

Dayton to Jerome F. Borkoski. At the bottom of the last page of 

the assignment of contract is an acceptance of the assignment 

signed by the President of the Corporation. 

On October 13, 1977, the defendant Borkoski was served 

with a notice of default and cancellation of contract. The reason 

given for the notice was that Borkoski had allowed the on-premises 

beer license to be revoked. 

On June 24, 1978, Borkoski was served with a summons and 

a complaint. The complaint alleged that the corporation "is the 

owner and is entitled to the immediate possession of certain described real property . . . " It then continued: 

"That the Defendant Wayne L. Dayton surrendered 

deed to the above-described premises to the 

plaintiff, which deed, conveying his interest 

in the premises, was recorded on the 26th day 

of May, 1978, in Book 147 of Deeds at Page 514, 

Records of Ravalli County, Montana. That the 

Defendant, Jerome F. Borkoski, prior to the 26th 

day of May, 1978, entered and took possession of 

the said premises peacefully, without right to 

do so, and from and after the 26th day of May, 

1978, holds and keeps possession of the same 

unlawfully and by force, contrary to the form of 

the statute in such case made and provided." 
The complaint further alleged that the plaintiff was "deprived 

of the rents, issues and profits of said land and premises 

ever since the 26th day of May, 1978, to its damage in the sum 

of $20.00 per day . . ." and prayed for restitution and treble 

damages. 

The summons required that the defendants appear in the 

District Court on June 30, 1978. The summons also stated that 

the action was one for forcible detainer of the premises. Borkoski did not appear in court on that date and judgment was 

entered against him on the same day. 

On July 14, 1978, Borkoski, through his attorney, filed 

a motion to set aside judgment by default. The motion alleged 

that the failure of Borkoski to appear in court on June 30 was 

due to excusable mistake, and that the action had not been properly brought under the unlawful detainer statute, because the 

parties were not landlord and tenant. An affidavit attached to 

this motion stated Borkoski had failed to appear in court on 

June 30 for the following reasons: 

"[The defendant] was under the impression that it 

was not necessary for him to go to Court unless 

the Defendant Wayne L. Dayton was also served with 

a Summons ordering him to go to Court at the same 

time. Your Affiant was told by Mr. Dayton that he 

had not been served with process ordering him to 

appear on June 30, 1978, and assumed that it was 

not necessary for your Affiant to do so. Your 

Affiant further telephoned the Clerk of Court's 

office and was informed that the above mentioned 

matter was not on the calendar for June 30, 1978, 

and therefore assumed that it was not necessary 

for him to appear in Court on that date." 

The affidavit further stated that Borkoski was "informed 

and believes that the Plaintiff contends that [Borkoski] has 

forfeited his rights under the Contract . . . because [Borkoski] 

has allowed a certain . . . liquor license to lapse." 

On July 28, there was a hearing on the motion. The only 

person questioned during testimony was Mr. Brown, the attorney 

for the corporation. During this testimony the original contract 
for deed, the assignment of this contract to Borkoski, and the 

notice of default were all introduced into evidence. 

At the end of the hearing the district judge denied 

Borkoski's motion. It is from this denial that defendant appeals. 

The issues on appeal are as follows: 

I. Whether the summary proceeding of forceful detainer 

may be used to recover property sold under contract for deed? 

11. Whether the District Court judge abused his discretion 

in not setting aside the judgment by default? 

ISSUE 1. 

~efendant's central contention is that the District Court 

erred in allowing the plaintiff to bring an action for forcible 

detainer rather than requiring that the action be one for ejectment. Defendant contends that an action for ejectment would have 

allowed him twenty days to answer under Rule 12(a), M.R.Civ.P. 

AS it occurred, the default was entered only six days after the 

summons was served in accordance with the forcible detainer statute. 

Cited in support of the propo~~tion that the plaintiff is barred 

from bringing this action under the forcible detainer statute is 

Kransky v. Hensleigh (1965), 146 Mont. 486, 409 P.2d 537. In 

Kransky this Court said "Whenever the unlawful detainer statutes, 

S93-9701, R.C.M. 1947, et seq. [now section 70-27-101, MCA, et seq.], 

are brought into operation it is the rule that such action may 

only prevail where the relation of landlord-tenant exists." 146 

Mont. at 490, 409 P.2d at 539. 

In the present case it is clear that a landlord-tenant 

relationship did not exist. The legal relationship was contractual. 

It must be noted, however, that Kransky is limited to the unlawful 

detainer statute, section 70-27-108, MCA, which by its language 

specifically provides that the action may only be brought against 

a tenant. The present case was brought as a forcible detainer 
action under section 70-27-103, MCA. A reading of this statute 

will reveal that a landlord-tenant relationship is not required 

in order to bring this action. This section states in part: 

"Every person is guilty of a forcible detainer 

who either: 

"(1) by force or by menaces and threats of violence 

unlawfully holds and keeps the possession of any 

real property or mining claim, whether the same 

was acquired peaceably or otherwise . . ." 

The Corporation alleged these elements in their complaint. 

The cases in Montana which construe this statute and its 

predecessors have not limited its application to landlord-tenant 

circumstances. In Kennedy v. Dickie (1902), 27 Mont. 70, 69 P. 

672, the plaintiff was allowed to bring a forcible detainer action 

against a defendant who had simply ousted the plaintiff from his 

farm. 27 Mont. at 73, 69 P. at 673. For other cases where a 

forcible detainer action was brought where there was not a landlord-tenant relationship see, Park Saddle Horse Co. v. Cook (1931), 

89 Mont. 414, 300 P. 242; Spellman v. Rhode (1905), 33 Mont. 21, 

81 P. 395, and McCleary v. Crowley (1899), 22 Mont. 245, 56 P. 227. 

While these cases do not involve a contractual relationship they certainly indicate that a landlord-tenant relationship 

is not necessary to bring a forcible detainer action. For this 

reason Kransky does not apply. 

This is not to say that the plaintiff in the present action 

would have prevailed at trial under a forcible detainer action, 

but there is no indication under Montana law that an ejectment 

action must be brought when the parties have a contractual relation 

ship. Likewise, there is no indication that where a contractual 

relationship does exist between the parties that the plaintiff 

may not bring a forcible detainer action. The District Court did 

not commit error by allowing the forcible detainer action in this 

case. 

At this point we feel that it is necessary to make some 
observations concerning the differences between ejectment and 

forcible detainer actions. The Corporation alleges that the 

procedures for ejectment are found at sections 70-27-101, MCA, 

et seq. These sections include the forcible detainer statutes, 

among other provisions. 

Case law in Montana indicates that ejectment and forcible 

detainer are not the same cause of action. In Miner v. Cook 

(1930), 87 Mont. 500, 288 P. 1016, this Court said: 

"The vital allegations of this complaint [ejectment] are (a) plaintiff 's ownership and right to 

possession of the tract of land described in the 

complaint and from which it is alleged he was 

ejected by defendants, and (b) wrongful and unlawful ouster and ejectment by the defendants. 

Proof of both of these vital allegations is necessary in order to make out a case." 87 Mont. at 

502-503, 288 P. at 1017. 

In Kennedy v. ~ickie, supra, this Court said: 

"If the purpose of the action is to obtain relief 

from a forcible detainer, proof must be made under 

section 2092 [section 70-27-203, MCA] (1) of the 

forcible detainer as described in section 2081 

[section 70-27-103, MCA]; and (2) of the plaintiff's 

right to the possession at the time of the forcible 

detainer." 27 Mont. at 75, 69 P. at 674. 

As can be easily seen the two causes of action are different. In ejectment the question of title is necessary to a resolution of the dispute. In forcible detainer title is not an issue. 

Therefore, the summary procedures provided for in sections 70-27- 

101, MCA et seq., do not apply to ejectment actions. 

The contract which is at the heart of this action provides 

that upon default of the agreement by the buyer the seller (Corporation) had the option of terminating the agreement. In other 

words, the seller is given an election of whether to terminate 

the agreement or not upon the buyer's default. Obviously, termination of the agreement is not the Corporation's sole remedy in 

the event of a default. As was said by this Court in White v. 

Jewett (1938), 106 Mont. 416, 78 P.2d 85: 
"A party may pursue any remedy which the law 

affords in addition to the remedy provided by 

the contract, unless it declares the remedy 

to be exclusive." 106 Mont. at 420, 78 P.2d 

at 87. 

In the present case the contract did not specifically 

name a remedy which was to be exclusive in the event of a default, 

and the law affords to the Corporation a forcible detainer action. 

Finally, the defendant contends that section 70-27-203, 

MCA, is a statute of limitations which bars plaintiff's action. 

Defendant did not present this defense in District Court, therefore we will not consider this contention. 

ISSUE 11. 

Section 70-27-117, MCA, states: 

"If at the time appointed the defendant does not 

appear and defend, the court must enter his default 

and enter judgment in favor of the plaintiff as 

prayed for in the complaint." 

In this case the defendant did not appear on June 30, 1978, 

and the judge had no discretion at this point. A default judgment 

had to be entered. 

Montana's Rules of Civil Procedure permit a default judgment to be set aside for the same reasons a trial court may set 

aside a judgment following a trial on the merits. Rule 55(c), 

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

"For good cause shown the court may set aside an 

entry of default and, if a judgment by default has 

been entered, may likewise set it aside in accordance with Rule 60(b) . . ." 

Rule 60 (b) , M.R.Civ.P. says: 

"On motion and upon such terms as are just, the 

court may relieve a party or his legal representative from a final judgment, order or proceeding 

for the following reasons: 

" (1) Mistake, inadvertence, surprise, or excusable neglect . . ." 

The standard of review for default judgments is stated in 

Eder v. Bereolos (1922), 63 Mont. 363, 368, 207 P. 471, 472, where 

this Court said: 
"In order to justify the district court in granting the motion, the defendant was required to show: 

(a) That he proceeded with diligence; (b) his 

excusable neglect; (c) that the judgment, if permitted to stand, will affect him injuriously, and 

that he has a defense to plaintiff's cause of action 

upon the merits." 

This standard of review must be applied with the understanding that "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." Brothers 

v. Brothers (1924), 71 Mont. 378, 383-84, 230 P. 60, 61. In 

Reynolds v. Gladys Belle Oil Co. (1926), 75 Mont. 332, 341, 243 P. 

576, 579, this Court said " . . . since 'it is the policy of the 

law to have every litigated case tried on its merits,' judgments 

by default are not favored." 

This policy is best stated in Holen v. Phelps (1957), 

131 Mont. 146, 150, 308 P.2d 624, 627: 

"In furtherance of justice, trial courts should, 

in applying the above statute [sec. 9187, Rev. 

Codes, 1921, a predecessor of Rule 60(b), M.R. 

Civ.P.1 to a given case, maintain and exercise that 

liberal spirit which prompted the Legislature to 

grant them this discretionary power, and, while 

this court will disturb the action of a trial 

court in opening default only in exceptional 

cases, 'no great abuse of discretion by the 

trial court in refusing to set aside a default 

need be shown to warrant a reversal.'" 

From a reading of the above cited cases it is clear that 

the issue of abuse of discretion must be made on a case-by-case 

basis. With this in mind it is helpful to look at the defendant's 

actions in this case, and apply to them the standard from Eder v. 

Bereolos, supra, which is set out above. 

There is no doubt that Borkoski proceeded with diligence. 

His motion to set aside the default judgment was entered only 14 

days after the default judgment had been entered. 

There is also no doubt that the defendant will be injuriously 

affected by the loss of this property. 

Defendant has a defense to plaintiff's cause of action 
upon the merits. Plaintiff alleged in the complaint that the 

defendant " . . . entered and took possession of the said 

premises peacefully, without right to do so . . . and keeps 

possession of the same unlawfully . . ." Defendant has alleged 

that he had the right to enter and take possession of the premises, 

and he has alleged that his possession continued to be lawful 

under the terms of the contract which was assigned to him. While 

we do not hold that the defendant would win upon the merits, we 

find that he has presented a defense of sufficient merit to meet 

the criteria of Eder v. Bereolos, supra. 

The issue comes down to the question of excusable neglect. 

The following Montana cases provide us with some guidance on this 

matter. 

In Brothers v. Brothers, supra, the only question presented 

was the defendant's excusable neglect. This Court held that the 

defendant's erroneous belief that her appearance before a notary 

public was the only appearance required of her would not warrant 

setting aside the default. 71 Mont. at 382. his Court went on 

to hold, however, that these facts coupled with the fact that the 

defendant had recently spent some time in a state hospital because 

of her insanity warranted excusable neglect. 71 Mont. at 384-85. 

In Schalk v. Bresnahan (1960), 138 Mont. 129, 354 P.2d 

735, this Court held that it was not excusable neglect where defendant failed to appear because of forgetfulness. 138 Mont. at 

132, 354 P.2d at 736. 

In Worstell v. DeVine (1959), 135 Mont. 1, 335 P.2d 305, 

this Court had occasion to review the Montana case law on excusable 

neglect. This Court said: 

"We observe that since 1922, the cases we have 

studied indicate that the decisions turn 

on promptness and diligence in moving to set 

aside the default and on whether or not a showing of a meritorious defense is made." 135 Mont. 

at 6, 335 P.2d at 307. 

In the present case, the defendant's strongest point is his 
promptness in moving to set aside his default, and we have held 

that a showing of a meritorious defense has been made. In an 

affidavit to the District Court the defendant stated that he did 

not appear on the return date because he believed that he did not 

have to appear until Wayne Dayton was served. He also stated in 

the affidavit that the Clerk of Court had said that no hearing 

date had been set. The defendant only had six days from the time 

of service until the default judgment was entered. With this in 

mind the excuse which the defendant offered to the District Court 

constitutes excusable neglect. The District Court abused its 

discretion in not setting aside the default judgment. 

The default is vacated and the case remanded to the 

District Court for further proceedings. 

Chief Justice