Siewing v. Pearson Co., 86-526

• Decision Date: 21 April 1987
• Docket Number: No. 86-526,86-526
• Citation: 44 St.Rep. 800,736 P.2d 120,226 Mont. 458
• Parties: David SIEWING and Arnold Siewing, Plaintiffs and Respondents, v. PEARSON COMPANY, a corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 120

736 P.2d 120

226 Mont. 458

David SIEWING and Arnold Siewing, Plaintiffs and Respondents, v. PEARSON COMPANY, a corporation, Defendant and Appellant.

No. 86-526.

Supreme Court of Montana.

Submitted on Briefs March 5, 1987.

Decided April 21, 1987.

Bosch, Kuhr, Dugdale & McKeon, John C. McKeon, Malta, for defendant and appellant.

Robert Hurly, Glasgow, for plaintiffs and respondents.

GULBRANDSON, Justice.

Pearson Company, defendant and appellant, appeals the denial of a motion to set aside a default judgment entered against it in the District Court of the Seventeenth Judicial District, County of Valley. We affirm.

David and Arnold Siewing, respondents, purchased a seed cleaning machine from Pearson Co. in April 1985. Siewings were dissatisfied with the performance of the machine. The screen through which the seed passed was allegedly warped, causing the seed to spill uncontrollably out of the machine. Siewings contacted Pearson Co. and voiced their dissatisfaction. Pearson Co. offered to replace the machine and delivered a second machine to the Siewings. After determining the machine to be identical to the first in every respect other than size of the motor, Siewings refused delivery.

On January 23, 1986, Robert Hurly, attorney for the Siewings, wrote Pearson Co. requesting an immediate, full refund on the machine and compensation for the damages suffered by Siewings. No satisfactory response was received. A second letter was sent by Hurly on April 1, 1986. This time the letter was addressed to Bob Melton, a salesman for Pearson Co., with whom Hurly had been in telephone contact. The letter stated that unless satisfaction was forthcoming within ten days, a lawsuit would be filed. A copy of the complaint accompanied the letter. No response was received.

A complaint alleging breach of warranty was filed April 22, 1986. Pearson Co. was served with a summons and a copy of the complaint on May 5, 1986. Neither a motion to dismiss nor an answer was filed by Pearson Co. Siewings moved on May 28, 1986, to enter the default of the defendant. Default was entered the same day. Evidence pertaining to damages was presented to the court on July 23, 1986. Findings of fact, conclusions of law and judgment were signed by the judge on July 29, 1986, and filed with the clerk of court on July 31, 1986.

On July 25, 1986, the defendant contacted and engaged a Montana attorney, John C. McKeon, to represent the defendant. McKeon advised the defendant that he had been present in open court on July 23, 1986, and had observed the presentation of testimony leading to the entry of the default judgment.

Thereafter, on August 21, 1986, McKeon filed a motion to set aside the default judgment. The motion was accompanied by the affidavit of James L. Shook, Vice President and Assistant Secretary of Pearson Co. The affidavit contained very few pertinent facts.

Service of the summons of this action was served to Pearsons to our mail carrier on or about May 5, 1986.

Our mail carrier delivered said notice to our Senior Vice President. Through an oversight, our Senior Vice President did not respond and has since left our employment. Upon finding the correspondence in his desk, we immediately started proceedings.

On July 25, 1986, we first contacted and engaged our attorney, Mr. John McKeon, ... to represent us.

The motion to set aside the default judgment was heard September 3, 1986. At that hearing, McKeon requested leave for Shook to file a supplementary affidavit. McKeon presented the facts which would be included in the supplementary affidavit. McKeon told the court that the complaint had been received by Harry Knupple, a Vice-President with Pearson Co. Knupple was dissatisfied with Pearson Co. and resigned on May 16, 1986. The documents in Knupple's possession were placed in a box which was given to James Shook. Shook found the complaint in this cause on July 1, 1986. Shook was leaving on vacation so gave the complaint to Tom Davis, who had been Pearson Co.'s controller for three months. Davis was asked to immediately respond to the complaint and on July 25, 1986, he contacted attorney McKeon.

At the close of the hearing, the motions to set aside the default judgment and for supplementary affidavit were denied. The trial judge held that the motion to set aside was based on excusable neglect and that excusable neglect had not been proven by Pearson Co. He further found that had the additional facts been properly before the court, there still would be inadequate proof of excusable...