McClurg v. Flathead County Com'rs

Decision Date24 April 1980
Docket NumberNo. 14878,14878
Citation37 St.Rep. 801,188 Mont. 20,610 P.2d 1153
CourtMontana Supreme Court
PartiesMarion C. McCLURG and Lois K. McClurg, husband and wife, Plaintiffs and Appellants, v. FLATHEAD COUNTY COMMISSIONERS and Clifford Vinje, Road Supervisor, Defendants and Respondents.

M. Keith McClurg, Big Fork, for plaintiffs and appellants.

Ted O. Lympus, County Atty., Kalispell, for defendants and respondents.

SHEA, Justice.

Plaintiffs appeal the orders of the Flathead County District Court setting aside the entry of default against the defendant County and granting summary judgment to the County. Plaintiffs contend that the default should not have been set because the County had no justifiable excuse in failing to timely file an answer, and that the facts do not support a finding that the public possessed a prescriptive easement over that portion of Echo Lake Road which crosses the plaintiffs' property.

Echo Lake Road is located in Big Fork, Montana, and has been used by members of the public for over 33 years. In April 1951, when the plaintiffs, Marion and Lois McClurg, bought their property, the road was a narrow, ungraded trail. Over the years, the Flathead County Road Department has widened and graded the road. Other maintenance has included placing gravel on the road, and in winter sanding and plowing.

The plaintiffs have never placed barriers on the road or attempted to block the public's access to it. However, in recent years they have become increasingly annoyed by car owners whose vehicles have become immobilized on the snowy hill adjacent to their home. On September 2, 1976, the plaintiffs filed a complaint seeking a declaratory judgment that the County had a duty to erect signs, barricades, and gates in order to prevent the public from crossing plaintiffs' property.

Other than filing a motion to dismiss, the County did not oppose the plaintiff's complaint. While their motion was still pending, the County received an extension of time to file an answer. During this time, the County consulted with plaintiffs and advised them to address their grievance to county administrators. In December 1976, the plaintiffs filed a petition to abandon the road with the county commissioners. On February 3, 1977, prior to the county's action on the petition, the plaintiffs had the clerk of court enter a default against the County. Approximately three weeks later, the County denied the plaintiffs' petition and filed an answer to the complaint.

On May 16, 1977, the County filed a motion to set aside the entry of default. The court granted the motion on April 13, 1978. The plaintiffs appealed this order but in an opinion filed on December 21, 1978, we concluded that court's order was not a final judgment and dismissed the appeal.

After the issuance of the remittitur, both parties filed motions for summary judgment. The County also filed the depositions of Marion and Lois McClurg and the affidavit of Road Superintendent, Clifford Vinje. On August 22, 1979, the court filed an order which denied the plaintiffs' motion and granted the defendant's motion for summary judgment. The court's judgment provided that the public had acquired a prescriptive easement for use of the road on the plaintiffs' property and that the plaintiffs should receive nothing by reason of their complaint against the County. The defendant appeals this judgment and the court's order setting aside entry of default.

The party seeking to set aside an entry of default must establish good cause for the default and the existence of a meritorious defense to the action. See, Donlan v. Thompson Falls C & M Co., et al. (1910), 42 Mont. 257, 112 P. 445; Gomes v. Williams (10th Cir. 1970), 420 F.2d 1364, 1366; 6 Moore's Federal Practice § 55.10(2), p. 55-237. See also, Rule 55(c), M.R.Civ.P. The plaintiff contends it was error for the District Court to set aside the default because the County had no justifiable excuse for failing to file a timely answer and the County's answer did not cure the default.

A District Court's discretion to set aside entry of default should be liberally exercised to promote trial on the merits, and an order setting aside default will be reversed only in exceptional cases. See Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d 624. This is not, as the plaintiffs suggest, a case where the party attempted to cure a default by simply filing an answer. See Johnson v. Matelich (1973), 163 Mont. 329, 336, 517 P.2d 731. Here the County filed an affidavit stating that the plaintiffs prior to obtaining an entry of default, filed a petition for abandonment of the road and led the County to believe that further judicial action would be forestalled until completion of administrative proceedings on the petition. The County's affidavit was sufficient to support the court's finding that the delay was not totally inexcusable....

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12 cases
  • Pub. Lands Access Ass'n, Inc. v. Bd. of Cnty. Comm'rs of Madison Cnty.
    • United States
    • Montana Supreme Court
    • January 15, 2014
    ...road easement based upon evidence of county maintenance of the road as well as other public uses); McClurg v. Flathead County Comm'rs, 188 Mont. 20, 24, 610 P.2d 1153, 1156 (1980) (finding a public prescriptive road easement based in part upon evidence of "grading, laying gravel and other m......
  • Pub. Lands Access Ass'n, Inc. v. Bd. of Cnty. Comm'rs of Madison Cnty.
    • United States
    • Montana Supreme Court
    • January 16, 2014
    ...road easement based upon evidence of county maintenance of the road as well as other public uses); McClurg v. Flathead County Comm'rs, 188 Mont. 20, 24, 610 P.2d 1153, 1156 (1980) (finding a public prescriptive road easement based in part upon evidence of “grading, laying gravel and other m......
  • Green v. Gerber, DA 12–0054.
    • United States
    • Montana Supreme Court
    • February 12, 2013
    ...of default must establish good cause for doing so, and the existence of a meritorious defense to the action. McClurg v. Flathead County Comm'rs, 188 Mont. 20, 610 P.2d 1153 (1980). However, we subsequently—and erroneously—relied upon a “good cause” analysis when addressing the propriety of ......
  • Roberts v. Empire Fire and Marine Ins. Co., 96-127
    • United States
    • Montana Supreme Court
    • September 11, 1996
    ...setting aside a default judgment will be reversed only in exceptional cases. Lords, 688 P.2d at 293 (citing McClurg v. Flathead Cty. Comm'rs (1980), 188 Mont. 20, 610 P.2d 1153; Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 601 P.2d 47; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d The r......
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