(dissenting):
We dissent. In our view the majority holding constitutes an unwarranted interference with the trial judge’s discretion in handling essentially procedural matters prior to trial. Addi*486tionally, it - encourages direct, successive and piecemeal applications to this Court for review of purely preliminary and interlocutory orders of the trial courts of this state.
Here the trial court, in the exercise of its discretion, denied defendant’s motion for summary judgment at the time it was heard. This was done for the purpose of permitting plaintiff to amend her pleadings to state a claim for relief based on negligent design of the sidewalk on which she fell. This denial was interlocutory in character, its purpose was to assist in formulation of the issues for trial, and the existence of this basis for liability became known to plaintiff only shortly before hearing, when an excavation was made under the sidewalk. The existence of an available alternative procedural method for handling this situation, e. g. by granting summary judgment on the .existing posture of the case with leave to amend, or by deferring ruling on summary judgment pending amendment or pleadings :;and proof, in no sense forecloses the district court from proceeding as it did.
‘ An order denying summary judgment is interlocutory in character and'nonapplicable in the absence of a statute authorizing such appeal. 3 Barron and Holtzoff, Federal Practice and Procedure, § 1242; 6 Moore’s Federal Practice § 56.21 [2] ; United States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105; rehearing denied 312 U.S. 715, 61 S.Ct. 738, 85 L.Ed. 1145; also see 17 L.Ed.2d 886, Reviewability of Federal Court’s Denial for Motion for Summary Judgment. The vast majority of cases that have ruled upon the question under state summary judgment procedures have likewise so held. See 15 A.L.R.3d, Reviewability of Order Denying Motion for Summary Judgment, ppp. 902-908, for collation of cases from all jurisdictions. An order denying summary judgment is not an order from which an appeal may be taken in Montana. Rule 1, M.R.App. Civ.P.
Since denial of a motion for summary judgment is neither appealable nor reversible, it is not res judicata. Fraser v. Doing, *48776 U.S.App.D.C. 111, 130 F.2d 617. It may be reviewed later if circumstances warrant and a different ruling may be made at that time. 6 Moore’s Federal Practice § 56.14 [2], p. 2259, states the principle in this language:
‘« « * And if good reason is shown why the prior ruling is no longer applicable or for some other reason should be departed from, the court can and should entertain a renewed motion for summary judgment in the interest of effective judicial administration.”
In the instant case we are dealing with an interlocutory, nonappealable, procedural, pretrial formulation of issues by the district court prior to entry of any pretrial order. In this area, the district court should be given the widest possible latitude in our view. Instead, the majority grant defendant a “short-cut appeal” by extraordinary writ, granting the district court no discretion in the formulation of issues and plaintiff no right to amend. In our view summary judgment is not available as a sanction to be imposed by this Court for what it considers undue delay in presenting a claim for relief based on a different legal theory. Under the circumstances here, we do not believe there was such undue delay by plaintiff that she should be deprived of a reasonable opportunity to present evidence showing a genuine issue of material fact under her newly discovered and different legal theory.
For the foregoing reasons, we respectfully dissent.