THOMAS v SAVAGE
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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 motori 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 plaint 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. other s t a t e with the same provision. Our research reveals no 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 contained 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 11 ssociate ~ u s t i c e s ' / I
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