                                              No.    88-184

                 I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                    1988




FEDERAL SAVINGS AND LOAN INSURANCE
CORPORATION,
              P l a i n t i f f and R e s p o n d e n t ,
          -vs-

HARVEY 0. ANDERSON,           et al.,

                    D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:        D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e C o u n t y of F l a t h e a d ,
                    T h e H o n o r a b l e L e i f B. E r i c k s o n , Judge p r e s i d i n g .

COUNSEL OF RECORD:

          For Appellant:

                    T e r r y A.   Wallace, H a m i l t o n , M o n t a n a

          F o r Respondent:

                    D e b r a D. P a r k e r ; M u r p h y , R o b i n s o n , H e c k a t h o r n and
                    P h i l l i p s , K a l i s p e l l , Montana




                                                    S u b m i t t e d on B r i e f s :   July 21, 1988
                                                       Decided:         August 221 1988




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


      Anderson appeals from a default judgment and decree of
foreclosure entered in favor of the Federal Savings and Loan
Insurance Corp. (FSLIC) by the District Court of the Eleventh
Judicial District, Flathead County. We affirm.
      The principal issue in this case involves the
computation under Rule 6, M.R.Civ.P. of the notice period
required when default judgment is sought under Rule 55(b) (2),
M.R.Civ.P.     A second issue concerns the application of
Uniform District Court Rules to default judgments.
     Anderson claims that the default judgment should be
vacated (1) because the notice given by FSLIC of its intent
to enter default judgment was inadequate, and (2) because of
claimed failures by FSLIC to conform to the Uniform District
Court Rules.
     The chronology of events leading to the default
judgment, as reflected in the court file is as follows:
June 30, 1986            Complaint filed for mortgage
                         foreclosure by FSLIC
September 9, 1986        Service of summons & complaint
                         upon H. 0 Anderson
                                  .

September 29, 1986       Motion to dismiss filed by H.     0.
                         Anderson
October 15, 1986         Motion to dismiss denied; Anderson
                         granted 20 days to answer
June 30, 1987            Request by FSLIC for entry of
                         default against Anderson; copy
                         served on Anderson's counsel
July 1, 1987             Default of Anderson entered by clerk
January 19, 1988         Motion by FSLIC for default judgment
January 19, 1988        Notice of hearing for default
                        judgment, served by mail January 19,
                        1988 setting hearing for January 26,
                        1988
January 26, 1988        Response to motion and brief, dated
                        January 23, 1988, by Anderson filed
                        in the District Court, at 10:ll
                        a.m., January 26, 1988
January 26, 1988        Default   judgment   entered   at   5:02
                        p.m.
February 29, 1988       Notice of appeal filed in District
                        Court, dated February 26, 1988
      In his brief before the District Court opposing the
default judgment, dated January 23, 1988, but filed January
26, 1988, Anderson, through his counsel, contended that
insufficient notice had been given under Rule 55(b) (21,
M.R.Civ.P. for judgment by default when the notice period is
computed under Rule 6 (a).   He contended that the entry of
default by the clerk was done without notice, and was "in
violation of the standards of practice for entry of default
in this court's jurisdiction"; and further that Rule l(a) (8)
of the Uniform District Court Rules requires the lines of all
papers to be spaced "one and one half or double;" that under
Rule l(6) of said Uniform District Court Rules, such
non-conforming papers could not be filed without the leave of
the court, and no leave was obtained in this case. Anderson
further contended that under the Uniform District Court
Rules, he was entitled to 10 days notice of a motion for
default judgment. Anderson raises much the same arguments on
this appeal.
      We turn first to the argument of the computation of the
time for notice where default judgment is proposed to be
                         .
taken under Rule 55 (b) (2)   That rule provides in pertinent
part:    "If the party against whom judgment by default is
sought has appeared in the action, he      ...     shall be served.
with written notice of the application for judgment at least
three days prior to the hearing on such application."
     Rule 5(b) permits the service of notices either
personally upon the attorney of record or by mail. In this
case, service was made upon counsel for Anderson by mail.
     The general rule for the computation of time in matters
such as this is Rule 6(a), which provides:
     In computing any period of time prescribed ow
     allowed by these rules, by order of court, or by
     any applicable statute, the day of the act, event,
     or default after which the designated period of
     time begins to run is not to be included. --    The last
     day - - period so computed - - be included
          of the                           is to
     unless - -is a ~ a t u r d a ~ ,
             it -                  Sunday or a legal holiday,
     in which event - period runs until - - -of the
     -                the                      the end -
     next day which is neither a Saturday, Sunday - - a nor
     holiday.   W h e n t h e period- of time prescribed or
     allowed   is    less than        7 days, intermediate
     Saturdays, Sundays and holidays shall be excluded
     in the computation.          A half holiday shall be
     considered as other days and not as a holiday.
     (Emphasis added.)
     There is, however, an enlargement of the time period
permitted when there is service by mail.          Rule 6(e),
provides :
     Whenever a party has the right or is required to do
     some act or take some proceedings within a
     prescribed period after the service of a notice or
     other paper upon him and the notice or paper is
     served upon him by mail, 3 days shall be added to
     the prescribed period.
     Anderson contends that the computation of notice time
required to be given him is as follows: The notice of the
hearing for entry of default judgment was mailed on Tuesday,
January 19, 1988.   Under Rule 6(e), the three added days
entered into play at this point and the notice period began
to run after Friday, January 22, 1988.        The following
Saturday and Sunday are excluded and therefore his three day
period of required notice began on Monday, January 25, 1988.
Thus, according to Anderson, any hearing before Une-23- was
insufficiently noticed under the rules.           LF
                                                   q         w    d-
      First, Anderson's method of computation is in error. <I@C   w d 4
                                                                   v 4


Service by mail is complete on the date of mailing.       Rule
    .
5 (b)     The application of Rule 6 (e) does not mean that
service by mail cannot be deemed effective until three days
after mailing. Porto Transport, Inc. v. Consolidated Diesel
and Electric Corporation (S.D.N.Y. 1957), 21 F.R.D. 250.
Without doubt, the period of notice during which Anderson
should have taken action under the notice began running
Wednesday, January 20, 1988.
      If, in this case, notice of the hearing on default had
been personally served on the attorney for Anderson, his
notice period would have expired with the close of business
on Friday, January 22, 1988.      A complication arises with
respect to how the enlarged time under Rule 6 (e) ought to be
applied. Under Rule 6 (e), "three days shall be added to the
prescribed period."       The prescribed period under Rule
55 (b) (2) is three days. Under Rule 6 (a), when the period of
time prescribed - allowed is less than seven days,
                    and
intermediate Saturdays, Sundays and holidays are excluded in
the computation.
      The question arises, do the rules intend that the
non-court days excluded under Rule 6 (a) apply to additional
days granted by virtue of mailing under Rule 6(e)? The rules
are unclear on this point.    As to the unclarity, Professor
Moore reports that "as to whether Rule 6 (e) requires eight
day's notice of motion where the notice is served by mail,
see proceedings of American Bar Association Institute,
Cleveland (1933), 214-15, 218.    The conclusion reached was
that, while the matter was not free from doubt, eight days
notice was properly required and in any event should be given
in order to avoid question."    2 Moore's Federal Practice 4[
5.07, fn. 8 (1987).
     Strange to report, our extensive research reveals no
case in the federal or state system treating the question
whether intermediate Saturdays, Sundays and holidays should
be excluded from the computation where the intermediate days
occur within the additional time allowed by Rule 6 (e) after
service by mail.
     We have decided not to determine this question in this
action, but will await guidance from some future court
decision where the adequacy of the notice period for default
judgments, as enlarged by service by mail, is the principal
reason for the decision of the court. In this case, far more
weighty reasons exist why this judgment should not be
invalidated on grounds of inadequate notice.
     First of all, Anderson had ample notice that a hearing
for a default judgment would be held on January 26, 1988. He
mailed in a brief and response to the notice of motion on
Saturday, January 23, 1988. He had been given "ample time to
appear and ask for additional time to prepare the motion."
Anderson v. Brady (E.D.Ky. 1945), 5 F.R.D. 85. Not only did
Anderson have actual prior notice of the hearing, but the
case had been on the docket for more than 16 months after the
service of the complaint and summons on Anderson with no
other action being taken by him except for a motion to
dismiss.    Notice of request for entry of default was given
to Anderson on June 30, 1987.     For more than six months,
thereafter, Anderson did nothing to set aside the default.
At the time of his response to the notice of hearing for the
default judgment, on January 23, 1988, he did not allege or
tender any proof that he had a meritorious defense to the
suit for mortgage foreclosure. Nor has he alleged or claimed
so since.    Anderson has never tendered an answer to the
complaint.
     Moreover, it is a general rule that a procedural defect
with respect to notice of a default judgment must be
considered with other factors before the default judgment may
be set aside.
     While the failure to give the required notice is
     generally   regarded   as   a  serious procedural
     irregularity that may afford the basis for reversal
     on appeal,.  ..   and in conjunction with other
     errors may render the judgment void, the error
     should not usually be treated as so serious as to
     render the judgment void. It should be considered
     in the light of surrounding circumstances and will,
     at times, be harmless.
7 Moore1s Federal Practice ¶ 60.25 (2) (1983) .    See Planet
Corporation v. Sullivan (7th Cir. 1983), 702 F.2d 123;
Winfield Associates, Inc. v. Stonecipher (10th Cir. 1970),
429 F.2d 1087.
     We are commanded under Rule 1, M.R.Civ.P. to construe
the Montana Rules of Procedure so as "to secure the just,
speedy and inexpensive determination of every action."     In
this case, therefore, even if it were to be considered that
the notice of hearing on default judgment was insufficient,
nonetheless, the other factors so outweigh the procedural
defect as to require sustaining the entry of the default
judgment in this case.
     As to the contentions of Anderson that the notice of
hearing of default judgment did not conform to the Uniform
District Court Rules, little need be said. The controlling
rules relating to the entry of default judgments are found in
Rule 55, and with respect to service, those found in Rules 5
and 6, M.R,Civ.P.   The Uniform District Court Rules do not
enlarge, vary or control the provisions of Montana Rules of
Civil Procedure and indeed we find no conflict in this case
between the two sets of rules.   Failure of FSLIC to double
space the lines of the notice is not of sufficient weight to
nullify the subsequent judgment of the court.
    Affirmed.

                                         Justice
West Publishing Co., P.O.Box 3526, St. Paul, MN 55
Please make the following correction in the opinion in




should read
              t'
                   - -   Th u S;    a c c ~ r d ~ A Andtr5br\
                                                  '~

                                      I




The expense o making changes is such that we cannot und
              f
changes in typographical style or spacing.
