hearing to determine unliquidated damages. In this case a
hearing was mandatory because the damages were unliquj-dated.
Therefore, the April order could not be final. Montana and
federal rules are identical, and many federal cases require
the hearing before determining the amount of judgment.
"It is we1.l settled that a default
judgment for money may not be entered
without a hearing unless the amount
claimed is a liquidated sum or capable
of mathematical calculation." Davis v.
Fendler (9th Cir. 1981), 650 F.2d 1154,
1161.
The fact that a judge, not a clerk, entered the default
judgment does not negate the need for a hearing on damages.
A clerk may enter a default when the claim is for a sum
certain under Rule 55(b) (I), M.R.Civ.P., and for that a
hearing i s not required.
. Except for the narrow circumstances
of Rule 55(b) ( I ) , judgment by default can only be entered by
a judge. This does not mean a judge can enter a default
judgment for unliquidated damages without a hearing. The
judge has nothing on which to base the amount of judgment. A
defaulting party loses his defenses against the claim, but
the claim should only be for the amount of damages actually
suffered. We hold that the judgment of August 14, 1984, was
the final judgment here, and. appeal from that judgment was
timely taken.
Issue 1--Error in refusing to vacate the default
judgment?
In Lords v. Newman (Mont. 19841, 688 P.2d 2901 41