                                     No. 85-66
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1985




IN THE MATTER OF THE ESTATE AND
GUARDIANSHIP OF FRANK R. SCHULTZ, JP..,
a minor.




APPEAL FROM:      District Court of the Second Judicial District,
                  In and for the County of Silver Bow,
                  The Honorable Mark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                  Eooks   &   Budewitz, Townsend, Montana

         For Respondent:
                  Daniel R. Sweeney, Butte, Montana




                                        Submitted on briefs: J u l y 25, 1 9 8 5
                                                      Decided: September 26, 1985



Filed:    3f.p:




                                        Clerk
Mr. Justice John C.       Sheehy delivered         the Opinion of the
Court.


       Frank Shultz, Jr. appeals from an order of the District
Court, Second Judicial District, Silver Bow County, granting
summary judgment to respondent Frank Shultz, Sr.             We remand
to the District Court.
       This is an action to set aside t.he Decree of Settlement
and First and Final Account and to compel the guardian to
make a correct accounting.         In 1969, Frank Shultz, Jr., then
17 years old, was injured in an automobile accident.                 Suit
was brdught on his hehalf against the driver of the car in
which he was a passenger.         The suit was settled for $25,000.
On December 8, 1970, the District Court appointed Frank, Sr.
as guardian of his son, Frank, Jr.           On P l r h 30, 1973, the
                                                 iac
father filed his First and Final Account.           The account showed
$24,900 had been received in settlement of the claim and a
balance of .43 remained.       The account contained no vouchers
or    receipts.   The matter was set for hearing before the
District Court on April 24, 1973.         The son, who was then 21,
was not personally notified of the hearing.                 Notice was
posted in three places in Silver Bow County.            At the hearing,
the    District   Court   entered    a   decree    of   settlement   and
discharged the father from further duties as guardian.
       On July 26, 1976, the son hired counsel to investigate
the whereabouts of the guardianship funds.              On September 9,
1976, Frank, Jr.      joined the Marine Corps and except for
occasional    leaves, he    was     out of   the    state until   1981.
Gradually, the son became dissatisfied with the efforts of
his counsel to obtain relief, and in October 1979 while on
leave in Montana, he hired a different attorney.               The new
attorney    filed       a   petition   to    set           aside       the   decree    of
settlement of the First and Final Account and to compel the
guardian   to   make        a   correct   and   complete               accounting      on
February 8, 1980.
     The District Court granted summary judgment for Frank
Shultz, Sr. on the basis that the petition was not filed
within the two-year statute of limitations for actions based
on fra.ud. Section 27-2-203, MCA states:
     The period prescribed for the commencement of an
     action for relief on the ground of fraud or mistake
     is within 2 years, the cause of action in such case
     not to be d-eemed to have accrued until the
     discovery hy the aggrieved party of the facts
     constituting the fraud or mistake.
     The District Court held the son became aware of the
fraud either in 1976 when he retained legal counsel or in
L977 when he received a copy of the status of the account,
thus he had until 1978 or 1.959 to commence proceedings.
     H o w ~ T T the , District Court did not take into account
                 ~~
the effect of the Soldiers' and Sailors' Civil Relief Act of
1940, 50 U.S.C.     §   525 (1982).       It states:
     The period of military service shall not be
     included in computing any period now or hereafter
     to be limited by any law             ...
                                     for the bringing of
     a.ny action or proceeding in any court    . by or             .     .
     against any person in military service                                   ...
     whether such cause of action or the right or
     privilege to institute such action or proceeding
     shall have accrued prior to or during the period of
     such service..         ..
     It    appears      that     Frank, Jr.     joined             the       service   on
September 9, 1976.          The record. does not disclose when he left
the service.      We remand this case to the District Court for
reconsideration in light of the Soldiers' and Sailors' Civil
Relief Act of 1940, 50 U.S.C. S 525 (1982).


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                                                       ,         Justice
                                                   i
W e Concur:



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