MCCLURG v FLATHEAD CO COMMISSIONE
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No. 14268 IN THE SUPREME COURT OF THE ST OF MONTANA 1978 MARION C. MXLUFG and LOIS K. MSLURG, husbard and wife, P l a i n t i f f s and Appellants, FZATHEAD COUNTY ~ I S S I O N E R S , and CLIFFORD VINJE, Ibad Supervisor, Defendants and Respondents. Appeal f r m : D i s t r i c t Court of the Eleventh Judicial D i s t r i c t , Homrable James M. Salansky, Judge presiding. Counsel of Record: For Appellants: M. K e i t h WClurg argued, Big Fork, Montana For Respondents: Patrick Springer, County Attorney, Kalispell, mntana Leonard A. Vadala argued, Deputy County Attorney, Kalispell, Wntana Sulmnitted: October 20, 1978 Filed: -- .. iJC! -i Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiffs appeal from an order of the District Court, Flathead County, setting aside a default entered in their favor by the clerk of said court. Plaintiffs filed a declaratory judgment action seeking permission to barricade a road running through a corner of a parcel of land owned by them. They alleged that the road was an inconvenience to them in that automobiles often became stuck on a steep incline in the winter and put them to time and expense extricating motorists with their tractor. Since there was another route existing by which cars could reach the same destinations, plaintiffs wanted to erect signs indicating that the road on their land was a deadend private drive. The Flathead County Commissioners, named as defendants in the action, failed to file a responsive pleading within the time limits provided by the Montana Rules of Civil Procedure. Plaintiffs had the clerk of court enter defendants' default pursuant to Rule 55(a), M.R.Civ.P. Before default judgment had been entered, however, the county commissioners filed a motion to set aside their default. motion. The District Court granted this Plaintiffs appeal. The right of appeal exists only by statute or rule. v. Mountain States Telephone 406, 385 P.2d 100. & Payne Telegraph Co. (1963), 142 Mont. There is no statute or rule authorizing appeal from an order setting aside entry of default before judgment is taken. Rule l(a), M.R.App.Civ.P. provides that an appeal may be taken from a final judgment entered in an action commenced in a District Court. As a general rule, an order setting aside an entry of default where judgment has not been entered is not such a final order and is, therefore, not appealable. Annot. 8 ALR3d 1 2 7 2 , 1278; 4 Am J u r 2d Appeal and E r r o r 5127. Entry of d e f a u l t i s merely "an i n t e r l o c u t o r y a c t looking toward t h e subsequent e n t r y o f a f i n a l judgment by d e f a u l t and i s more i n t h e n a t u r e of a formal matter." 177 S.E.2d Whaley v. Rhodes ( 1 9 7 0 ) , 1 0 N.C.App. 109, 735, 736, c i t i n g 6 Moore's F e d e r a l P r a c t i c e 1155.10[1], a t 1827 ( 2 d e d . 1 9 6 6 ) , c o n s t r u i n g R u l e 5 5 ( a ) , F.R.Civ.P., i s i d e n t i c a l t o t h e c o r r e s p o n d i n g Montana r u l e . which W e have express- l y held t h a t an order s e t t i n g aside a d e f a u l t is n o t appealable where f i n a l judgment h a s n o t b e e n e n t e r e d . Mont (19781, . I - P.2d B l e v i n s v. K r a m e r 35 St.Rep. , (decided December 5 , 1978. Appeal d i s m i s s e d . Chief J u s t i c e W e concur:
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