No. 13007
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1975
HELEN C. McCORMICK, MICHAEL C.
McCORMICK, WILLIAM R. McCORMICK,
MARY KATHERINE CRIST, and CAROLE McCORMICK,
P l a i n t i f f s and Respondents,
-vs -
MAE McCORMICK,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
Honorable Robert J. Boyd, Judge p r e s i d i n g .
Counsel o f Record :
For Appellant :
Daniels and Mizner, Deer Lodge, Montana
M. K. Daniels argued, Deer Lodge, Montana
For Respondents:
Burgess, Joyce, Prothero, Whelan and O'Leary,
B u t t e , Montana
Thomas F. Joyce argued, B u t t e , Montana
Submitted: September 2 2 , 1975
Decided: s+!,.
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Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal from an order of the district court,
Powell County, granting an order dismissing appellant's appeal.
This appeal arises from a partition action filed in the
district court in 1971. Referees were appointed and the report
of the referees was adopted and thereafter an order was made
dividing the leases operated by the parties pursuant to a supple-
mental referee's report. An amended referee's report was filed
on June 24, 1974 and adopted August 13, 1974 with a judgment
accordingly signed and entered September 12, 1974. On November
12, 1974, appellant's attorney filed an affidavit and motion for
extension of time pursuant to Rule 5, M.R.App.Civ.P.,alleging
excusable neglect. On November 12, 1974, Judge Boyd signed an
order extending the time to file the appeal until November 12,
1974. The notice of appeal was filed the same day. On December
19, 1974, respondents filed a motion to dismiss the appeal alleg-
ing appellant's attorney's affidavit showed no excusable neglect
on the part of counsel, but rather a deliberate decision not to
appeal. A hearing was held on respondents' motion and the order
dismissing the appeal was granted by Judge Boyd on January 9, 1975.
The issues to be decided by this Court are:
(1) Does the district court have jurisdiction to dis-
miss an appeal once the notice of appeal has been filed?
(2) Was the affidavit of excusable neglect adequate to
extend the time during which an appeal may be filed beyond the
thirty day period provided for in Rule 5, M.R.App.Civ.P.?
This Court has stated on more than one occasion that
the filing of an appeal to this Court stays all proceedings in
the district court, thereby removing jurisdiction from that court
to proceed further in the matter.
In Hansen v. Hansen, 129 Mont. 261, 264, 284 P.2d 1007,
this Court said:
"It is familiar law that an appeal to this court
divests the district court of jurisdiction over
the order or judgment from the appeal taken. There-
after the lower court is without jurisdiction to
proceed upon any matter embraced therein." (Citations
omitted. )
In a more recent case, Polson v. Thomas, 138 Mont. 533,
535, 357 P.2d 349, this Court stated:
" * * * upon an appeal being taken, jurisdiction
thereof passed from the district court to the
supreme court, subject however to the right of
the district court to correct clerical errors."
Once the district court granted appellant an order
allowing her to file a notice of appeal, the district court
was without jurisdiction to grant a motion to dismiss said appeal.
Upon the original filing of the notice of appeal, this Court
was given sole jurisdiction to determine the propriety of the
appeal.
We hold that the granting of the order dismissing the
appeal was in error as the district court was without jurisdic-
tion to grant such an order.
Now we must come to the question of whether the granting
of an extension of time to appellant to file the notice of appeal
was adequately supported by the doctrine of excusable neglect
found in Rule 5, M.R.App.Civ.P. It states:
"The time within which an appeal from a judgment
or order must be taken shall be 30 days from the
entry thereof * * *."
The final paragraph of Rule 5 provides an exception to this rule:
"Upon showing of excusable neglect, the district
court may extend the time for filing the notice
of appeal by any party for a period not to exceed
30 days from the expiration of the original time
prescribed by this Rule."
The Advisory Committee Note to Rule 5, states, regard-
ing excusable neglect:
"The final paragraph permits an extension of the
time for taking an appeal by the district court
'upon a showing of excusable neglect.' In view
of the ease with which an appeal may be taken--
the filing of a simple notice with the clerk of
court--and the unlikelihood that there will not
be actual notice of the entry of the judgment
or order, it would be an extraordinary case
which would justify an extension. But the dis-
trict court should have the authority to extend
time in extraordinary cases where injustice would
otherwise result. * * * "
"Excusable neglect" is not defined in Rule 5 nor in the
advisory committee notes, thus the determination of what consti-
tutes "excusable neglect" must be made on a case-by-case basis.
The key guide to what was intended to constitute "excusable
neglect" is the advisory committee note wording, "extraordinary
cases where injustice would otherwise result."
"Excusable neglect" must mean more than that the appellant
changed his or her mind after the period allowed for filing an
appeal had lapsed. The essential ingredient of "excusable neglect"
is "neglect". The rule as stated in Brothers v. Brothers, 71 Mont.
383,
378,/230 P. 60, is:
"The rule is concisely stated by this court in Nash
v. Treat, 45 Mont. 250, Ann. Cas. 1913E, 751, 122
P. 745: 'Each case must be determined upon its
own facts; and, when the motion is made promptly
and is supported by a showing which leaves the
court in doubt, or upon which reasonable minds
might reach different conclusions, the doubt should
be resolved in favor of the motion.' No great abuse
of discretion by the trial court in refusing to
set aside a default need be shown to warrant a
reversal, for the courts universally favor a trial
on the merits.
"No two cases will be found which present the same
circumstances for consideration, for each depends
upon its own facts. (Morse v. Callantine, 19 Mont.
87, 93, 47 P. 635;Collier v. Fitzpatrick, 22 Mont.
553, 57 P. 181; Farmers' Co-operative Assn. v.
Roper, 57 Mont. 42, 188 P. 141; Pengelly v. Peeler,
39 Mont. 26, 101 P. 147; Nash v. Treat, supra; In
re Davis' Estate, 15 Mont. 347, 39 P. 292; Simpkins
v. Simpkins, 14 Mont. 386, 43 Am.St.Rep. 641, 36
P. 759), and therefore applications of this character
are addressed to the legal discretion of the court
and should be disposed of as substantial justice may
seem to require. (Watson v. San Francisco & H. B.
R. R. Co., 41Cal. 17.)"
No doubt exists in this case, nor is any referred to in the
affidavit for extension of time filed by appellant's attorney
in support of the motion for extension of time.
The affidavit states that appellant lives in semi-
seclusion and, due to dissatisfaction with her attorney's
handling of the case, only communicated with her attorney
through her daughter; that appellant was erroneously informed
that she had six months to perfect her appeal but did not wish
to appeal; and that appellant had now contacted her attorney
and wished to appeal. The affidavit indicated a communication
problem between appellant and her attorney, but no neglect on
the part of her attorney. From the affidavit it appears clear
that appellant decided not to appeal and then, after the time
for filing a notice of appeal had lapsed, decided she did want
to appeal. This change of mind is not one of those extraordinary
cases for which an extension of time to file an appeal is allowed
under Rule 5.
The district court should not have granted appellant's
motion for extension of time to file her appeal.
Due to the length of time which this matter has proceed-
ed in various stages of litigation, we will not remand to the
district court for further action. Therefore, we declare the
judgment of partition signed and entered in the district court
on September 12, 1974 to be final and binding on all the parties
to this action.
We concur:
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'Justices