                                                No.    83-213

                  I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                       1983




ELK RUN IWliCH, a Mont. Gorp.                  ,
                      P l a i n t i f f and Respondent,



GREEN LINE IMPLEMENT COMPANY,
a Mont. C o r p . ,

                      Defendant and Appellant.




APPEAL FROM:          D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                      I n a n d f o r t h e County o f ~ h h e a u ,
                      The H o n o r a b l e J o h n M. McCarvel, J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F

           For Appellant:

                      J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, Great
                      F a l l s , Montana

           For Respondent:

                      S c o t t , L i n n e l l & N e w h a l l ; W i l l i a m M. S c o t t ,
                      G r e a t F a l l s , Montana
                      C h a r l e s M. C r u i k s h a n k , c o - c o u n s e l , G r e a t F a l l s ,
                      Montana




                                                S u b m i t t e d on B r i e f s :     J u l y 21, 1 9 8 3

                                                                     ~ e c i d e d : ~ u g u s t2 5 ,      1983



Filed:       AUG 2 5 I983
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
     Green Line Implement Company           (Green Line) appeals the
district court denial of its motion to set aside a default
judgment.    We affirm.
     Plaintiff and Respondent, Elk Run Ranch filed an action
against defendant and appellant, Green Line, on September 27,
1982, to recover damages arising from Green Line's alleged
failure to perform certain maintenance work on a tractor
owned by Elk Run Ranch.      The suit was initiated by service of
complaint and summons together with an amended complaint.
     Service was      made   on   Green    Line's   registered    agent,
Brooks    Robinson.    Mr.   Robinson delivered       the process    to
Rudolf Harms, Secretary-Treasurer of Green Line.            Mr. Harms
did not take action on the matter due in part to the deaths
of his parents.       Mr. Harms apparently assumed that Howard
Axtman, Green Line's office manager would take care of the
matter, as Elk Run Ranch's attorneys had dealt exclusively
with Mr. Axtman       in the past.        No action was taken on the
complaint.
     On    November   12, 1982, default        judgment was      entered
against Green Line.     Neither Green Line nor any of its agents
received actual notice of the default judgment until more
than 60 days had elapsed after entry of judgment.             When the
statutory time for challenge to the default judgment had
lapsed, Elk Run Ranch levied on the judgment by Writ of
Execution served January 21, 1983.
     On March 10, 1983, Green Line filed a motion to set
aside the default judgment pursuant to Rule 60(b), M.R.Civ.P.
The motion was not heard within 10 days and so was deemed
denied by operation of law under Rule 59(d), M.R.Civ.P.
        Green Line argues that the default judgment should be
set aside          (1) because the District Court lacked personal
jurisdiction due to improper service of process and                        (2)
because Green Line's default was due to excusable neglect of
its agents.
      Green Line first argues that the District Court lacked
personal jurisdiction over Green Line due to deficiencies in
the service of process.                 This argument is without merit.
        Elk Run Ranch filed its complaint on September 27, 1982.
The clerk of court issued a summons on the same date.                       On
October 8, 1982 the complaint and                    summons were properly
served on Green Line's registered agent pursuant to Rules 4C
and 4D(2)(a) M.R.Civ.P.            Green Line's only challenge to the
service       of    process   is    that     an    amended    complaint    was
simultaneously served, that the amended complaint was not
accompanied by         a separate summons, and            that the amended
complaint was not filed before service.
        Since the case was properly initiated by the filing of
the complaint and service of process, the only question is
whether     the     amendment was        made     properly.     It makes    no
difference whether the amended complaint was served with the
original process or at a later time.
        Rule 4C(1) does not require that a summons be served
with an amendment.            Service of the amended complaint is
governed by Rule 5 M.R.Civ.P.,              which requires service on a
party    or      his   attorney    by    several methods       including   "by
delivering a copy to him."              Rule 5(b) M.R.Civ.P.     The amended
complaint was so served.
        The propriety of service before filing is governed by
Rule 5 ( d ) :
        "Filing. All papers after the complaint required
        to be served upon a party shall be filed with the
        court either before service or within - reasonable
                                              a
        time thereafter. " (emphasis added)       .
        Thus all service and filing requirements of Rules 4 and
5 were properly met by Elk Run Ranch and the Clerk of Court.

The District Court thereby acquired personal jurisdiction
over the defendant Green Line.
        Green Line next contends that the District Court should
have granted the motion that the default judgment be set
aside on grounds of excusable neglect.
        Rule   60(b) M.R.Civ.P.     provides that a party may be
relieved from a final judgment for "(1)          ...excusable    neglect."
However, a motion for such relief "shall be made within a
reasonable time, and for reasons (I), ( 2 ) ,            and (3) when a
defendant has been personally served, whether in lieu of
publication or not, ----
                    not more than 60 days after the judgment,
order or proceeding was entered..."              Rule 60(b) M.R.Civ.P.
     Although         Green   Line may   state a      case of    excusable
neglect, the motion for relief under Rule 60(b) was not made
until March       10, 1983, some 118 days after judgment was
entered.       The motion is therefore barred.
        Green Line argues that Elk Run Ranch is in no position
to   raise      the    60-day   limit    since   they   waited    for   the
expiration of the 60 days before attempting to levy on the
judgment.       While we recognize the inequity of permitting a
plaintiff to passively participate in securing a windfall
default judgment resulting from the excusable neglect of a
defendant, Rule 60(b) leaves no room for interpretation.                 A
motion to set aside a default judgment must be made within 60
days.      Though the rule may lead to harsh and inequitable
results, it must be applied until its language is properly
changed.
     The judgment of the district court is affirmed.




We concur:




Justice?
