No. 13781
IN THE SUPREME COURT OF THE STATE OF MONTANA
DOUGLAS R. KELLY and BETTY
LYNN KELLY, husband and wife,
Plaintiffs and Appellants,
SELL & SELL PAINT CONTRACTORS, a
Montana corporation, d/b/a THE COLOR SHOP,
Defendants and Respondents.
..............................................
SELL & SELL PAINT CONTRACTORS, a
Montana Corporation, d/b/a COLOR SHOP,
Counter-Plaintiffs,
DOUGLAS R. KELLY and BETTY LYNN KELLY,
husband and wife, and BIG TIMBER BUILDING
LOAN ASSOCIATION, a Montana Corporation,
Counter Defendants.
Appeal from: District Court of the Sixth Judicial District,
Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Appellants:
Lee Overfelt argued, Billings, Montana
For Respondents:
Josephson and Fredricks, Big Timber, Montana
Conrad Fredricks argued, Big Timber, Montana
Submitted: October 6, 1977
Decided :
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Plaintiffs appeal from a judgment entered in Sweet Grass
County where the District Court granted defendant's motion to
amend findings of fact and conclusions of law. The amended judg-
ment allowed defendant to recover the damaged carpeting which the
court had found the defendant to have negligently installed in the
palintiffs' home.
This case turns on a procedural question, and accordingly,
a detailed recitation of the facts giving rise to this litigation
is not necessary.
On September 15, 1975, plaintiffs Douglas R. and Bette Lynn
Kelly filed an action against Sell & Sell Contractors, d/b/a The
Color Shop, alleging damages resulting from negligent installation
of carpeting in the Kelly home. The defendant, Sell & Sell Con-
tractors, had previously filed a mechanic's lien, and it counter-
claimed seeking foreclosure of the mechanic's lien. Before the
Kellys filed suit they had made substantial payments on the pur-
chase price of the carpeting, which included the costs of installa-
tion.
A nonjury trial was completed on August 5, 1976, and on
October 6, 1976, the District Court entered findings of fact and
conclusions of law, whereby it found that the carpeting had been
negligently installed, granted the Kellys damages for negligent
installation, and denied Sell & Sell's counterclaim for foreclosure
of the mechanic's lien. Judgment was entered on October 13, 1976
for an amount to compensate the Kellys for the cost of removal of
the old carpeting and the installation of replacement carpeting.
The judgment did not specify which party was entitled to the damaged
carpeting.
On November 5, 1976, Sell & Sell moved to either have their
proposed findings of fact and conclusions of law substituted for
those entered by the District Court, or alternatively, to amend the
court's findings and conclusions and judgment to allow them to
remove and retain the carpeting found to have been improperly in-
stalled. Pursuant to notice, a hearing was held on November 10,
1976. Thirty-six days later, on December 16, 1976, the District
Court amended its findings and conclusions to allow Sell & Sell to
remove and salvage the carpeting that was to be replaced. The Kellys
appeal from the amended judgment.
The Kellys contend that the time to amend the judgment had
expired before the District Court entered its amended judgment, and
therefore, the court was without jurisdiction to enter the judgment.
They also contend that it was improper for the District Court to
allow salvage to Sell & Sell because it was never pleaded in mitiga-
tion as an affirmative defense. We reverse on the first issue, and
therefore, it is unnecessary to discuss the second.
Rule 59, M.R.Civ.P., covers motions for new trial and amend-
ment of judgment and provides that the same time periods prevail
whether the motion is one for a new trial or one to alter or amend
the judgment. Rule 59(d), M.R.Civ.P., provides in relevant part:
" * * * the Court shall rule upon and decide the
motion within 15 days after the same is submitted.
If the court shall fail to rule upon the motion
within said time, the motion shall, at the expira-
tion of said period, be deemed denied."
Rule 59(g), M.R.Civ.P., covers a motion to alter or amend
judgment and provides specifically:
" * * * This motion shall he heard and determined
within the time provided hereinabove with respect
to a motion for a new trial."
Accordingly, it is mandatory that a District Court rule on either a
motion for a new trial or a motion to alter or amend the judgment
within 15 days after the case has been submitted. Here, it failed
to do this. The case was submitted on November 10, 1976, and the
ruling came on December 16, 1976, some thirty-six days later. At
the end of the fifteenth day, the motion, by operation of law
(Rule 59(d)), was deemed denied. It was error for the District
Court to rule on this motion after the expiration of fifteen days.
It is true this rule may in some cases, work harsh results,
but it is perhaps more important that the public have the expectation
and right to finality of judgments. This can only be accomplished
when there is a cut-off time for a District Court to rule. In
Armstrong v. High Crest Oil, Inc. (1974), 164 Mont. 187, 196, 520
P.2d 1081, this Court held:
"The time and procedural limitations for motions
subsequent to judgment set out in Rule 59, M.R.Civ.P.,
are mandatory. (Citing cases.) * * * "
These time limitations were strictly enforced in Cain v.
Harrington (1973), 161 Mont. 401, 404, 506 P.2d 1375, and Leitheiser
v. Montana State Prison (1973), 161 Mont. 343, 505 P.2d 1203.
It is true the above cases did not involve the same kind of
factual circumstances as exist in this case--that is, a delayed ruling
on a motion that has been timely noticed and heard. However, it is
clear from the rule that once the motion has been submitted, it must
be determined within in 15 days thereafter or be deemed denied. A
party who does not receive a ruling within 15 days is, of course,
still entitled to appeal from the original judgment.
Accordingly, we hold that the District Court was without
authority to amend the findings of fact and conclusions of law. The
amended judgment is reversed, and the court is ordered to reinstate
the original judgment.
We Concur:
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Justices -4-