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No.

92-348

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

HOWARD N. HORTON, Plaintiff and Respondent,

APPEAL FROM:

District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Richard Prinkki, Pro Se, Missoula, Montana For Respondent: Walter E. Congdon, Congdon Law Offices, Missoula, Montana

Submitted on Briefs: Decided: Filed:

November 19, 1992
December 8, 1992

Chief Justice J. A. Turnage delivered the Opinion of the Court. Court for the This is a landlord-tenant dispute. The ~istrict Fourth Judicial ~istrict, is sou la County, entered judgment for Howard N. Horton after a trial at which Richard Prinkki failed to appear, Prinkki appeals.
We affirm.

~rinkki argues he was not given the notice required under Rule
55(b)(2),

M.R.Civ.P., before a default judgment may be entered.

The record shows that in May 1990, Prinkki, appearing pro se,

appealed to District Court from a judgment in favor of Horton entered by the Missoula County Justice Court. In July 1990, a Prinkki

hearing was held on Worton's motion for payment of rent.

appeared in person and was ordered to either pay a rental deposit pending trial or else vacate the premises at issue.

In January 1991, a pretrial conference was set for February 5,
1991, and later continued to February 12, 1991. Prinkki was apparently present at both pretrial conferences.

Trial was set for

November 1, 1991, then reset for March 12, 1992.

At trial, the District Judge stated that notice of the trial
date was sent to Prinkki on January 30, 1992, but was returned with
no forwarding address.

The court stated that a new address was

obtained and notice was mailed to Prinkki at that address on February 14, 1992, and on March 9, 1992, and that these two notices

were not returned to the court, raising a presumption that Prinkki
received them. Prinkki did not appear in person or by representa-

tive at trial.

The court heard testimony on behalf of Horton and

subsequently entered judgment for him. Default judgment may be entered only when a party has failed to plead or otherwise defend. Rule 55(a), M.R.Civ.P. Default

judgment would not be proper in this case, because Prinkki pled and defended his case, in part. The District Court file shows that

default judgment was neither requested nor entered. Here, judgment was entered after trial at which Prinkki failed to appear. Prinkki was given notice of the trial date. No defect

has been shown in the notice. We therefore affirm the judgment of the District Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to the West Publishing Company.

chief Justice

We concur:

December 8, 1992 CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following named:
RICHARD PRINKKI P.O. Box 2983 Missoula, MT 59806 Walter E. Congdon CONGDON LAW OFFICES 520 Brooks Street Missoula, MT 59801

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA



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