                                   No. 12253

         I N THE SUPREME COURT O THE STATE O MONTANA
                                F           F

                                      1972



PEARL T O A and ORLO THOMAS,
       HMS

                            P l a i n t i f f and Respondent,



G. 0. SAVAGE, SR.; G. 0. SAVAGE, J R .
and SAFECO INSURANCE C M A Y O AMERICA,
                      O PN    F
a corporation,

                            Defendants and A p p e l l a n t s .



Appeal from:        D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
                    Honorable James D. Freebourn, Judge p r e s i d i n g .

Counsel o f Record:

    For A p p e l l a n t s :

           A r t h u r P. Acher argued, Helena, Montana.

    F o r Respondent :

           Maurice F. Hennessy, B u t t e , Montana.
           C o r e t t e , Smith and Dean, B u t t e , Montana.
           Kendrick Smith argued, B u t t e , Montana.
           F e l t , Speare and Thompson, B i l l i n g s , Montana.


                                               Submitted: September 21, 1972
                                                 ~ecide:d
                                                                 JAN 15 1973
Filed:     JAblI51973
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of t h e Court.

            This is an appeal by G. 0. Savage, S r . , the moving party i n the
d i s t r i c t court.   Savage moved the d i s t r i c t court of S i l v e r Bow County
"To vacate and s e t a s i d e the judgment entered i n the above e n t i t l e d cases
(Pearl and Orlo Thomas, v. G. 0. Savage e t a1 .) on December 11, 1970, i n
favor of P l a i n t i f f and against said Defendant."           He f u r t h e r moved, "To
vacate and set aside t h e judgment entered i n t h e above e n t i t l e d cases on
December 18, 1970, i n favor of the Third Party P l a i n t i f f Safeco Insurance
Company of America, and against t h e said Defendant."                  The ground f o r t h i s
motion was t h a t the d i s t r i c t court was without j u r i s d i c t i o n t o e n t e r these
judgments because Savage had not been served w i t h process.                    The underlying
action was an automobile accident involving G. 0. Savage, J r , and Mr. and
Mrs. Thomas.
           Separate actions were f i l e d by Mr. and Mrs. Thomas i n January, 1970,
against G. 0. Savage, J r . , ( d r i v e r ) , G. 0. Savage, Sr. (owner of c a r ) , and
Safeco Insurance Company of America, the c a r r i e r of Thomas ' uninsured motor-
i s t coverage, f o r damages due t o personal i n j u r i e s sustained i n c o l l i s i o n .
           Copies of summons and complaint were served on the s e c r e t a r y of
s t a t e ; he mailed the copies ( c e r t i f i e d mail) t o defendant "G. 0. Savage, S r . ,
Whitehall, Montana 59759"; the l e t t e r s were returned t o the s e c r e t a r y of
s t a t e , not del ivered.
           Meanwhile defendant Safeco cross-complained against the Savages
alleging l i a b i l i t y f o r any judgment Safeco might pay due t o the insurance
coverage; Safeco a l s o served t h e secretary of s t a t e and on March 12, 1970,
the s e c r e t a r y of s t a t e received t h e l e t t e r he had s e n t t o Savage, Sr. marked
unclaimed.
           Cases were consolidated f o r t r i a l ; the Savages made no appearance
and t h e i r defaults were entered; $15,000 judgment was entered f o r both plain-
t i f f s against a l l three defendants on December 11, 1970.
           On December 18, 1970, the second d e f a u l t judgment was entered i n favor
of c r o s s - p l a i n t i f f and respondent herein, Safeco.
              Over one year following these judgments, on February 14, 1972,
defendant G. 0. Savage, Sr. appeared s p e c i a l l y and moved t o vacate and
set aside t h e judgments entered December 11, 1970, and December 18, 1970;
hearing on the motions was held February 18, 1972 and following oral
arguments and submission of a f f i d a v i t s , Judge Freebourn denied the motions
t o vacate the judgments on March 15, 1972. This appeal followed.
             The s o l e issue i n this cause f o r our determination is whether the
d i s t r i c t . c o u r t was c o r r e c t i n refusing t o grant the motion.   Judge Freebourn
i n his order s t a t e d :

             "(1) That the Motion was made under Rule 60(b)
             M.R.Civ.P.; t h a t the Motion could not be confined
             t o the l a s t sentence of Rule 60(b) which provides
             only f o r an independent action; and t h a t the Motion
             can be considered only, and was considered only, under
             the provisions of said Rule 60(b) which permits the
             t r i a l court t o allow an answer t o the merits w i t h i n
             180 days a f t e r the rendition of the judgment."
He f u r t h e r s t a t e d :
             " ( 2 ) That the Motion was made more than 180 days
             a f t e r rendition of the judgment on the Third Party
             Complaint which i s dated December 18, 1970. * * *"
A i n the d i s t r i c t court, the governing s t a t u t o r y provision i n this case i s
 s
Rule 60(b), M.R.Civ.P.;          more p a r t i c u l a r l y t h a t portion of Rule 60(b) which
reads :
             " * * * When from any cause the summons i n an action
             has not been personally served on t h e defendant, the
             court may allow, on such terms as may be just, such
             defendant or h i s legal representative, a t any time within
             180 days a f t e r t h e rendition of any judgment i n such
             action, t o answer t o the merits of the original action.
             **     *I1



This provision i n Rule 60(b) is unique t o Montana.                  Our research reveals no
other s t a t e with the same provision.           While we a r e not able t o draw an i n t e r -
pretation from another j u r i s d i c t i o n , the wording appears t o be cdear.               The
provision allows a party t o come i n t o the d i s t r i c t court and answer t o t h e
merits of an action i f two conditions can be met; (1) t h e moving party has
not been personally served i n t h e original action, and (2) t h e motion has
been made within 180 days of the rendition of the judgment.                        Upon t h e f a c t s
i n this case i t can be determined t h a t only the condition concerning service
has been s a t i s f i e d ; the time l i m i t was not complied w i t h .      The record re-
veals t h a t the judgment and notice of t h a t judgment of Pearl and Orlo
Thomas against G . 0. Savage, Sr. and Safeco Insurance Company of America
were f i 1ed on December 11 , 1970.           Further, the record shows t h e judgment
on t h e t h i r d party complaint by Safeco against G. 0. Savage, Sr. was f i l e d
on December 18, 1970.         The motion by G. 0. Savage, S r . was not f i l e d u n t i l
February 18, 1972, more than 480 days a f t e r the entry of the judgments.
Plainly this does not come w i t h i n t h a t portion of the Rule 60(b), M.R.Civ.P.,
heretofore quoted, and therefore the d i s t r i c t court was correct i n denying
t h e motion.
          The d i s t r i c t judge a f t e r making the above determination went on i n
his order t o make the following determination:
          " ( 3 ) That by the Motion there has been a s e l e c t i o n
          of remedies and G. 0. Savage, J r . [sic] is precluded
          from bringing an independent action under the 1a s t
          sentence of said Rule 60(b)."
I t i s our opinion t h a t t h i s ruling is i n e r r o r .     W can find nothing i n
                                                                   e
Rule 60(b) which would lead t o the conclusion an e l e c t i o n of remedies is
required f o r a party t o benefit from i t s provisions.                In E l l i s t o n Lime Co.
v. Prentice Lumber Co., 157 Mont. 64, 67, 483 P.2d 264, we held:
          "An independent action t o s e t aside a d e f a u l t judgment
          therefore, is not subject t o the 60 day l i m i t a t i o n
          f o r motions t o s e t aside defaults i n the original
          action. "
Following t h a t same reasoning, an independent action t o vacate a judgment
f o r f a i l u r e t o receive service is not subject t o t h e 180 day l i m i t a t i o n con-
tained i n the r u l e .   The f i n a l sentence of Rule 60(b) provides:
          "This rul es [ s i c ] does not 1imi t t h e power of a court
          t o e n t e r t a i n an independent action t o re1 ieve a party
          from a judgment, order, o r proceeding, or t o grant
          r e l i e f t o a defendant not a c t u a l l y personally n o t i f i e d
          as may be required by law, o r t o s e t aside a judgment
          f o r fraud upon t h e court."
This independent action provision of the r u l e according t o Professor Moore
i s t o r e t a i n t h e equity provision of not enforcing a judgment obtained
against the public conscience.            7 Moore's Federal Practice, para. 60.36,
 pp. 601, 602.       For those reasons w reverse that portion of the d i s t r i c t
                                        e
 court's order.
           In the briefs and during oral argument,,arguments were presented
 concerning Rule 4 ( d ) , M.R.Civ.P. concerning service.       Those questions
 are not properly before the Court a t t h i s time and w express no opinion
                                                         e
 concerning them.
           Accordingly, by what has been heretofore said, the order refusing
 t o grant the motion t o vacate and s e t aside the judgments i s affirmed
 except as t o t h a t portion thereof holding t h a t an election of remedies has
 been had and t h a t holding i s r
 order.




 W concur:
  e                               /        I




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