No. 14927
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
JOHN R. BRITTON,
Plaintiff and Respondent,
BURLINGTON NORTHERN INC.,
a corporation,
Defendant and Appellant.
Appeal from: District Court of the Nineteenth Judicial District,
Honorable Robert M. Holter, Judge presiding.
Counsel of Record:
For Appellant:
Fennessy, Crocker, Harman and Bostock, Libby, Montana
Kurt W. Kroschel, Billings, Montana
For Respondent :
Hoyt, Trieweiler, Lewis & Regnier, Whitefish, Montana
Submitted: November 2, 1979
Decided :j, ''!
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Respondent has moved to dismiss this appeal on the ground
that this Court lacks jurisdiction thereof because appellant
did not file its notice of appeal within the time permitted by
Rule 5, M.R.App.Civ.P.
Respondent John R. Britton filed an action for damages
against appellant Burlington Northern, Inc. in the District Court
of Lincoln County, Montana. On May 25, 1979, the jury returned a
verdict of $140,000 in favor of respondent. On May 31 judgment
was entered thereon. On June 1 the Clerk of the District Court
mailed notice of entry of this judgment to counsel for both parties.
On June 6 appellant mailed to the Clerk of the District
Court and to counsel for respondent its motion for a new trial and
for an extension of time to file a supporting brief. On June 11
the District Court granted appellant until June 25 to file its
supporting brief.
On June 13 appellant mailed to the Clerk of the District
Court and to counsel for respondent its amended motion for a new
trial. On June 25 appellant filed and served its supporting brief.
Neither the original nor the amended notice for a new
trial contained a notice of hearing. No hearing has ever been
held. The motion was submitted on appellant's brief.
On July 20, the District Court denied appellant's motion
for a new trial. On August 2 appellant mailed to the Clerk of the
District Court and to counsel for respondent its notice of appeal.
The notice of appeal was received and filed on August 3 by the
Clerk of the District Court.
On August 15 appellant's counsel flew from Billings to
Libby, contacted the District Judge at his home that evening.
Appellant's counsel presented to the District Judge ex parte a
motion for an order extending the time for filing the notice of
appeal 30 days. The District Judge signed an order granting
the extension, a second notice of appeal was filed with him,
and a notation was made that it was filed with him at his home
at 10:OO p.m. Affidavits filed by counsel for the respective
parties contain conflicting facts concerning the attempts made
to notify counsel for respondent of this contemplated activity,
In the meantime on August 8, respondent's counsel mailed
respondent's motion to dismiss this appeal with supporting legal
memorandum to appellant's counsel. The motion to dismiss was re-
ceived and filed with this Court on August 15. According to the
affidavit of appellant's counsel he did not receive the motion to
dismiss until August 15.
Briefs have been filed by counsel for both parties and
the motion to dismiss has been submitted to us for decision.
Appellant's motion for a new trial was timely filed. Rule
59 (b), M. R.Civ.P. This motion suspended the running of the time
for filing the notice of appeal. Rule 5, M.R.App.Civ.P. The
District Court's order extending the time for filing a supporting
brief by necessary implication extended the time for its ruling
on the motion. A fair reading of the record likewise indicates
the motion was to be submitted on the brief. Accordingly, the 10
day period in which such motion had to be decided or deemed denied
did not commence running on June 6 and expire on June 16, not-
withstanding the fact that the motion was not noticed for hearing
nor a hearing held thereon. See Rule 59(d), M.R.Civ.P. Otherwise,
the District Court would be placed in the untenable position of
having to rule on the motion for a new trial before appellant's
brief was submitted or the motion would be deemed denied. This
would be unconscionable.
We hold that the time within which the District Court was
required to rule on the Motion in this case commenced running on
June 25 when appellant's brief was filed. The 15 day period for
its ruling expired on July 5. Rule 59(d), M.R.Civ.P. It was
automatically deemed denied on that date and its order of denial
on July 20 was null and void and of no force or effect. Rule 59(d),
M.R.Civ.P.
Appellant had 30 days thereafter in which to file its
notice of appeal. Rule 5, M.R.App.Civ.P. The notice of appeal
was filed August 3 within such 30 day period. This invested this
Court with jurisdiction to hear this appeal.
This case is distinguishable from Leitheiser v. Montana
State Prison (1973), 161 Mont. 343, 505 P.2d 1203, cited by
respondent. There the District Court granted no extension of
time for filing briefs and thus extending the time for its de-
cision. The contrary occurred here. In any event the District
Court cannot extend the period for hearing or submission on briefs
beyond 30 days. Rule 59(d), M.R.Civ.P.
Respondent's motion to dismiss this appeal is denied.
Chief Justice
We concur: f-