to Rice's attorney, Robert Morin, on January 18, February 14,
and February 23, 1984, urging Morin to answer or he would
seek default. Huss filed a notice of intent to enter default
on March 5, 1984, and gave eleven days notice although only
required to give three da.ys notice. On March 15, 1984, Morin
told Huss he would mail the answer that day but did not do
so. A judgment by default for $40,000 was entered without
hearing March 22, 1984.
On March 30, 1984, Morin filed a motion to vacate the
default. The grounds stated for vacating were that during
this time Morin was leaving the Berger Law Firm and his
inattention was excusable neglect and. mistake. The District
Court heard and denied the motion in April and ordered an
evidentiary hearing on the amount of damages.
A.fter this hearing the District Court upheld the de-
fault judgment and renewed the $40,000 judgment on August 14,
1984. Rice filed a notice of appeal on September 12, 1984.
Timeliness of Appeal
Before considering the substantive issues, we will
discuss why this appeal is timely. The relevant statute is
Rule 55 (b)(2), M.R.Civ.P. :
"In all other cases the party entitled
to a judgment by default shall apply to
the court therefor; ... If, in order
to enable the court to enterjudgment or
-
- carry - -
to it into effect, it is necessary
to take an account or to determine the
amount of damages or to establish the
truth of any averment by evidence or to
make an investigation of any other
matter, - court may conduct such
the
hearings - order such references - -
or as it
deems necessary and proper and shall
accord a right of trial by jury to the
parties when and as required by any
statute of the state of Montana." (Em-
phasis added.)
A Rule 55(b) (2) hearing must be held on unliquidated
damages, and logically the hearing should be held before a
judge enters the amount of damages in a default judgment. In
this case the District Court entered default judgment for
$40,000, refused to vacate the default, then had a hearing on
the amount.
Rice's motion to vacate was denied April 18, 1984; the
$40,000 judgment was renewed August 14, 1984; and this appeal
was filed September 12, 1984. To be a timely appeal the
August, not the April, order must constitute the final judg-
ment. The finality of the judgment depends on whether a
damages hearing was mandatory or discretionary. Smotherman
v. Christianson (1921), 59 Mont. 202, 195 P. 1106, required a