                                 NO. 81-200
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1981


WILLIE GERGEN I
                        Plaintiff and Respondent,
    VS    .
DOUGLAS A. PITSCH,
                        Defendant and Appellant.


Appeal from:       District Court of the Sixteenth Judicial District,
                   In and for the County of Custer.
                   Honorable A. B. Martin, Judge presiding.
Counsel of Record:
     For Appellant:
              Felt and Martin, Billings, Montana
     For Respondent:
              Lucas and Monaghan, Miles City, Montana


                                  Submitted on briefs: July 9, 1981
                                              Decided :   w   -
Filed :
                                                          hi 4 igi
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
         Douglas Pitsch appeals from            a default    judgment
entered against him in the District Court of the Sixteenth
Judicial District, Custer County.           We affirm.
         In the summer of        1980, Douglas Pitsch and Willie
Gergen entered into a contract for the sale and purchase of
hay.     Under     the   terms   of   the   contract, Gergen was      to
purchase 300 tons of hay from Pitsch at $45 per ton.           Gergen
paid Pitsch the entire purchase price of the 300 tons.                A
dispute arose as to whether Gergen had received all of the
hay    due   him   under   the   contract.      Gergen   contacted    an
attorney, and on January 15, 1981, a complaint was filed in
District     Court.      The   complaint alleged    that Gergen      had
purchased and paid for 300 tons of hay but had received only
268 tons because the named defendant, Pitsch, had refused to
deliver or allow Gergen to pick up the remaining 32 tons.
The complaint further alleged that the current price was
$100 per ton and that Gergen was entitled to $3,200 from
Pitsch for the hay which had not been delivered.
         On January 15, the same day that the complaint was
filed, Gergen's attorney sent a letter to Pitsch.                    The
letter contained the following statements:
        "At the request of Mr. Gergen we have filed
        suit for recovery of the 32 tons which have a
        current value of $100.00 per ton.         The
        Sheriff at Hardin will shortly be serving the
        summons and complaint upon you.
        "This letter is written for the purpose of
        offering what I believe to be a reasonable
        and attractive compromise settlement. If you
        will immediately make arrangements that 32
        additional tons of hay be made available for
        pick up by Mr. Gergen, then the suit will be
        dismissed. Please advise within one week."
On January 19, Pitsch wrote a letter to Gergen's attorney.
The     letter        generally         denied        that      Pitsch          owed        Gergen      any

f u r t h e r d e l i v e r i e s of     hay.        The l e t t e r c o n c l u d e d w i t h t h e
comment t h a t " I f he [ G e r g e n ] w a n t s t o f i l e s u i t I w i l l d o s o
t o c o l l e c t f o r t h e e x t r a hay he h a u l e d f r o m my p l a c e . "                      On
J a n u a r y 23,     a summons and c o m p l a i n t w e r e p e r s o n a l l y s e r v e d
upon P i t s c h by a d e p u t y s h e r i f f o f B i g Horn C o u n t y , Montana.
On March 3 , a d e f a u l t judgment was e n t e r e d a g a i n s t P i t s c h .

The    court        set    the      value       of    the     hay     at    $85 p e r             ton   and
awarded       Gergen        $2,720        plus       costs.           Notice        of       entry       of

judgment          was m a i l e d      t o P i t s c h on March            3.      E x e c u t i o n was
l e v i e d on P i t s c h ' s      bank a c c o u n t on March 4 .                    On March          9,

Pitsch,       through        counsel,          moved      the      D i s t r i c t Court           to   set
a s i d e t h e d e f a u l t judgment.              The D i s t r i c t C o u r t d e n i e d t h e
m o t i o n , and P i t s c h a p p e a l s .
           Douglas P i t s c h           has     raised       three        issues           on    appeal.
However,          because we           are     affirming          t h e D i s t r i c t Court,           we
need o n l y r e a c h t h e t h r e s h o l d q u e s t i o n :

            Did t h e D i s t r i c t C o u r t e r r by r e f u s i n g t o s e t a s i d e
t h e d e f a u l t judgment?
           R u l e 6 0 ( b ) , M.R.Civ.P.,             p r o v i d e s t h a t a p a r t y may be

relieved           from     a    judgment            upon     a     showing            of        mistake,
inadvertence,              surprise,            or   excusable           neglect.                 In    his

a f f i d a v i t i n s u p p o r t of t h e motion t o s e t a s i d e t h e d e f a u l t
j u d g m e n t , D o u g l a s P i t s c h made t h i s s t a t e m e n t :
           "6  .         I n t h e m i d d l e of J a n u a r y , 1 9 8 1 , I
           r e c e i v e d a l e t t e r f r o m J a m e s P. L u c a s , an
           a t t o r n e y i n Miles C i t y , M o n t a n a , d a t e d
           J a n u a r y 1 5 , 1 9 8 1 . A t r u e copy o f t h e l e t t e r
           is a t t a c h e d h e r e t o and marked E x h i b i t " A " .
           T h e l e t t e r s t a t e d t h a t 32 t o n s o f t h e
           o r i g i n a l 300 t o n s r e m a i n e d t o be d e l i v e r e d t o
           W I L L I E GERGEN, demanded t h a t t h e 32 t o n s be
           delivered,             and    requested          an     immediate
           r e s p o n s e from m e .
            "7.        A   few d a y s       later,       I   received           certain
           p a p e r s , t r u e c o p i e s o f which a r e a t t a c h e d
           h e r e t o and marked E x h i b i t "B".                        When I
           r e v i e w e d t h e p a p e r s , I r e c o g n i z e d t h e names
           o f t h e a t t o r n e y s , L u c a s and Monaghan, a s t h e
           f i r m which had s e n t m e t h e o r i g i n a l l e t t e r .
           I have never been sued o r s e r v e d w i t h a
           summons and c o m p l a i n t b e f o r e , s o I d i d n o t
           r e c o g n i z e t h a t t h e s e were o f f i c i a l c o u r t
           d o c u m e n t s , which r e q u i r e d t h a t I o b t a i n t h e
           s e r v i c e s o f c o u n s e l and f i l e a f o r m a l Answer
           with the Court.                  I believed, rather, t h a t
           t h e s e f a n c y p a p e r s r e p r e s e n t e d a n a t t e m p t by
           W I L L I E G E R G E N 1 s a t t o r n e y s t o s c a r e me i n t o
           making an i m m e d i a t e d e l i v e r y o f 32 a d d i t i o n a l
           t o n s o f h a y , and r e q u i r e d o n l y a r e s p o n s e t o
           the attorneys."

          While       it    is     true     that     default         judgments          are    not

favored,      Nelson v.          Lennon      ( 1 9 4 9 ) , 1 2 2 Mont.       506,     206 P.2d

5 5 6 , we m u s t a g r e e w i t h t h e D i s t r i c t C o u r t t h a t t h e c i r c u m -

stances present            i n t h i s c a s e do n o t w a r r a n t a v a c a t i o n o f

the    judgment.           The      letter     which       Douglas       Pitsch         sent    to

Gergen's       attorney        indicates        that     he       is both     literate         and

intelligent.               The     summons       and     complaint           were       legally

sufficient        and      clearly     stated       that      a    s u i t had   been     filed

against Pitsch.             Gergenls attorney told Pitsch,                       by l e t t e r ,

that    s u i t had     been       filed.       W cannot,
                                                 e                   under    these      facts,

conclude       that     Douglas        Pitsch      was     so      mistaken      as      to    the

n a t u r e of what was t r a n s p i r i n g t h a t t h e judgment a g a i n s t him

s h o u l d be s e t a s i d e .     Also,      h i s f a i l u r e t o respond t o t h e

complaint does not c o n s t i t u t e excusable n e g l e c t .

           The judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
We c o n c u r :


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