No. 81-353
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1981
DONALD H. L R M e x ux,
EU
Plaintiffs,
VS .
J O H N E. LOGUE,
Defendant.
* * * * *
J O H N E. LOGUE,
T h i r d P a r t y P l a i n t i f f , Respondent,
vs.
MARILYN S. SMITHSON a/k/a
MARILYN SUE MORRIS,
Third P a r t y Defendant, A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d
Honorable James M. S a l a n s k y , J u d g e p r e s i d i n g .
Counsel o f Record:
For A@pellant:
LaRue S m i t h , G r e a t F a l l s , Montana
F o r Respondent:
R i c h a r d DeJana, K a l i s p e l l , Montana
For P l a i n t i f f :
Measure and Ogle, K a l i s p e l l , Montana
S u b m i t t e d on b r i e f s : December 1 7 , 1981
D e c i d e d : M a ~ 13, 1982
Filed: hi$,L{ 13 1982
Mr. Justice Daniel J. Shea delivered the opinion of the
Court.
We are compelled to dismiss this appeal from the
Flathead County District Court because the notice of appeal
was not filed within the time permitted by Rule 5, F4.R.App.Civ.P.
After the Flathead County District Court entered a May
22, 1980 judgment in a contract action against Marilyn Sue
Morris, she moved the court under Rule 60(b)(4), M.R.Civ.P.,
to vacate that judgment for being void. Loguets counsel was
served by mail with a copy of this motion on May 22, 1981,
and the motion was filed with the District Court on May 26,
1981. On June 3, 1981, the court set a hearing on the
motion for June 30, 1981, and on June 24, 1981, sent counsel
for both parties notice of this hearing. After the June
30, 1981 hearing, the court received a written brief from
Morris on July 13, 1981, and granted Logue until July 24,
1981, to file a responsive brief. The court denied Morrist
motion to vacate the judgment on July 28, 1981. Morris then
filed her notice of appeal with the District Court on August
3, 1981.
Briefs have been filed by counsel for both parties and
the motion to dismiss has been submitted for decision.
Rule 60(c), M.R.Civ.P., provides that motions made under
Rule 60(b), M.R.Civ.P., are to be heard and determined
within the time limits provided by Rule 59, P4.R.Civ.P. In
turn, Rule 59(d), M.R.Civ.P., provides that the District
Court shall hold a hearing and rule upon the motion within
ten days after the motion has been served. If the court
fails to rule upon the motion within that time, the motion
shall be deemed denied at the expiration of those ten days.
Here, Morris' motion was served on May 22, 1981, and
the hearing was set for June 30, 1981. From the time the
motion was served until the time the motion was heard, 39
days had elapsed. The District Court had no jurisdiction to
rule upon this motion after the expiration of ten days, and
therefore, the motion is deemed denied on June 1, 1981.
Morris then had 30 days from the date her motion was
deemed denied under Rule 59(d), M.R.Civ.P., in which to file
her notice of appeal with the District Court. Rule 5,
M.R.App.Civ.P.; Leitheiser v. Montana State Prison (1973),
161 Mont. 343, 505 P.2d 1203. Accordingly, we hold that
Morris' time for filing this appeal started June 1, 1981,
and expired 30 days thereafter, on July 1, 1981.
While we have acknowledged that this rule may, in some
cases, work harsh results, we have also emphasized that the
public has the right to the expectation of finality of
judgments. Kelly v. Sell & Sell Paint Contractors (1978),
175 Mont. 440, 574 P.2d 1002. The time and procedural
limitations for motions subsequent to judgment set out in
Rule 59, M.R.Civ.P., are mandatory and are strictly enforced.
See, for example, Oster v. Oster (1980), - Mont.
, 606 P.2d 1075, 37 St.Rep. 264; Britton v. Burlington
,
Northern, Inc. (1979), - Mont. - 601 P.2d 1192, 36
St.Rep. 1956; Kelly v. Sell & Sell Paint Contractors, supra;
Sikorski & Sons, Inc. v. Sikorski (1973), 162 Mont. 442, 512
P.2d 1147; Leitheiser, supra; Cain v. ~arrinqton (1973), 161
Mont. 401, 506 P.2d 1375.
Because Morris did not timely file her notice of appeal,
the respondent's motion to dismiss this appeal is granted.
W e Concur:
TChiefLu sPc e- & J ~ ~ ~
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Justices B