Williams v. Superior Homes, Inc.

• Decision Date: 18 July 1966
• Docket Number: No. 11024,11024
• Citation: 148 Mont. 38,417 P.2d 92
• Parties: Wallace J. WILLIAMS and Molly Williams, Plaintiffs and Respondents, v. SUPERIOR HOMES, INC., Defendant and Appellant.
• Court: Montana Supreme Court

Page 92

417 P.2d 92

148 Mont. 38

Wallace J. WILLIAMS and Molly Williams, Plaintiffs and Respondents, v. SUPERIOR HOMES, INC., Defendant and Appellant.

No. 11024.

Supreme Court of Montana.

July 18, 1966.

Rehearing Denied Aug. 18, 1966.

Harwood & Galles, Allen D. Gunderson, Billings, Dale F. Galles, argued, Billings, for appellant.

Joseph P. Hennessey, argued, Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

Appeal from an order of the district court of Yellowstone County denying defendant's motion to vacate a default and judgment.

This dispute arose over certain personal property which had been left by plaintiffs in the care and control of the defendant. The defendant refused to return the personal property to the plaintiffs and claimed that the plaintiffs owed the defendant money on another transaction. The plaintiffs filed their complaint on February 1, 1962. The defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted, filed on February 21, 1962, was denied on March 9, 1962. On May 21, 1963, defendant moved for a bill of particulars, which was denied by an order dated October 9, 1963, and the defendant was given ten days in which to answer plaintiff's complaint.

On Friday, May 22, 1964, the plaintiffs applied to the district court for a judgment by default since the defendant had failed to answer the complaint within the time granted by the order of October 9, 1963. Written notice of the application for judgment was served on defendant's attorney of record on that same day. A default judgment was filed on Monday, May 25, 1964.

The sheriff of Yellowstone County, pursuant to a writ of execution issued August 19, 1964, gave proper notice of the sale of certain real property belonging to the defendant. This sale was to take place on September 14, 1964, at the Courthouse in Billings.

On August 27, 1964, Ralph L. Herriott, Esq., at the request of the defendant, withdrew as its counsel. On September 11, 1964, the name of Oskar O. Lympus, Esq., was entered as attorney for defendant. That same day defendant filed an answer and counterclaim, a motion to vacate default and judgment, and an affidavit seeking a temporary injunction.

Judge C. B. Sande of the District Court of Yellowstone County, issued a temporary injunction and restraining order, which stopped the sale of defendant's real property on September 14, 1964.

Plaintiffs made an application and motion to dissolve the temporary restraining order on September 16, 1964. On September 18, 1964, Judge Sande modified the temporary restraining order by requiring the defendant to provide an appropriate bond. The defendant failed to post the bond within the time allowed, and the temporary restraining order was dissolved by order of October 1, 1964. This order allowed the plaintiffs to proceed with the sale of the real property as originally posted immediately. However, on October 12, 1964, Judge Sande made an order nunc pro tunc, correcting the order of October 1. It ordered that the 'injunction previously entered was of no legal effect and the sheriff is hereby ordered to proceed with the sale of the property on October 13, 1964 * * * the sheriff shall not be required to post any additional notices of sale in this matter.'

Judge E. E. Fenton, who originally had jurisdiction of the action, was disqualified by the defendant on September 25, 1964. Judge Sande then assumed jurisdiction of the entire matter.

The motion to vacate default and judgment was heard on December 21, 1964. An order denying the motion was entered by Judge Sande on August 3, 1965.

The defendant has made several specifications of error. As we understand the first specification of error, defendant contends that the complaint did not state a claim upon which relief can be granted. Defendant has devoted many pages of its brief in support of this contention. In these pages defendant had given many court definitions of 'a cause of action' and 'a claim upon which relief can be granted.' From these definitions, defendant seems to draw the idea that the plaintiffs had to say 'we had a right to the personal property, and defendant wrongfully refused to turn the property over to us.' Defendant seems to feel that the words 'right' and 'wrongfully' must appear in the body of the complaint. We fail to see how the absence of these 'magic words' causes the complaint to be bad. Restatement of the various paragraphs of the complaint would add nothing to this opinion but to extend its length. The complaint meets both of the requirements of Rule 8(a), M.R.Civ.P., in that it contains a short and plain statement of the claim entitling the plaintiffs to relief and a demand for judgment for the relief to which the plaintiffs deem themselves entitled.

Defendant's second specification of error questions the validity of the default judgment entered by the district court. Rule 55(b)(2) deals with default judgments entered by the district court and provides in part: 'If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.' Rule 6(a) deals with computation of time periods under the Rules and provides: 'When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.' Defendant contends, and this court agrees, that notice requirements of the Rules were not met by the plaintiffs.

This court is aware of the fact that failure to follow the three days' notice requirement of Rule 55(b)(2) has been interpreted by some federal courts as sufficient reason to set aside the default judgment. In Meeker v. Rizley (C.A. 10th Cir., 1963), 324 F.2d 269, 271, the court stated: 'We need not determine in this instance whether the default judgment entered is void or voidable, since the failure to give the required three-day notice constitutes cause for setting it aside.' However, in United States v. Borchers (C.A. 2d Cir., 1947), 163 F.2d 347, 350, certiorari denied 332 U.S. 811, 68 S.Ct. 108, 92 L.Ed. 389, another court had this to say: 'We hold that the orders of Judge Abruzzo should be affirmed because * * (3) the error they (appellants) relied on of neglect to given them a three-days notice of application for judgment was at most only procedural and not jurisdictional, and is not shown to have been prejudicial to their rights * * *.' For a more extensive review of the conflicting interpretations of Rule 55(b)(2), see Annotation in 51 A.L.R.2d 837 and A.L.R.2d Later Case Service 5, p. 171.

The notice requirement of Rule 55(b)(2) has not previously been interpreted by this court. At the outset, we must express our surprise at the manner in...