IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 81-196
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PAUL MALINAK,
Plaintiff-Appellant,
VS.
SAFECO TITLE INSURANCE COMPANY
OF IDAHO, and LINCOLd COUNTY
TITLE COMPANY,
Defendants-Respondents.
OPINION AND ORDER
Paul Malinak appeals from a summary judgment entered
against him in the District Court of the Nineteenth Judicial
District, Lincoln County, and in favor of the defendants
Safeco Title Insurance Company of Idaho and Lincoln County
Title Company.
There are still pending claims against Malinak based on
Safeco's claim for subrogation, but the District Court, in
entering judgment, determined that there was no just reason
for delay in the entry of final judgment as to Paul Malinak
on his claims against the defendants.
We find, however, that this Court has no jurisdiction
of Malinak's appeal because his notice of appeal was not
timely filed.
Summary judgment was entered against Malinak by the
District Court on November 25, 1980. On December 4, 1980,
he filed his motion to alter or amend the summary judgment.
At the same time he noticed the motion for hearing on
December 15, 1980.
Rule 59(g), M.R.Civ.P., provides:
"Motion to alter or -
- amend judgment. A motion
to alteror amend the judgment shall be served
not later than 10 days after the service of the
notice of the entry of judgment, and may be
combined with a motion for a new trial herein
provided for. This motion shall be heard and
determined within the time provided hereinabove
with respect to a motion for new trial."
Under Rule 59(g), Malinak's motion to alter or amend
the judgment was timely filed. To determine whether a
motion was heard and determined within the time provided
with respect to a motion for new trial, we must look to the
provisions of Rule 59 ( d ) .
Rule 59(d), M.R.Civ.P. provides in pertinent part:
"Rule 59(d). Time for hearing on motion. Hearing
o n e h e o n shallbe had within 10 days after
it has been served,. ." .
The written notice of hearing on the motion to alter or
amend the judgment served by I4alinak provided for the hearing
to occur on December 15, 1980. The motion was heard on
December 15, and following the hearing, the court granted
the parties to December 30, 1980 in which to file briefs.
The court entered an order denying the motion to alter or
amend the judgment on January 6, 1981. Plalinak dated his
notice of appeal January 30, 1981, but it was not filed
until February 4, 1981.
When on December 4, 1930, Malinak set the motion to
alter or amend the judgment for hearing on December 15,
1980, he set it one day beyond the permissible time for a
hearing, or 11 days. If his motion to alter or amend the
judgment was served as appears in the record on December 4,
1930, then the time for hearing expired on December 14, 1980
and his time for filing his notice of appeal would begin
running on that date. His notice of appeal filed February
4, 1981 would obviously be beyond the permissible time for
filing.
There are further provisions of Rule 59(d) which come
into play. Rule 59 (d) goes on to say:
". . . at anytime after the notice of hearing
on the motion has been served the court may
issue an order continuing the hearing for not
to exceed 30 days. In case the hearing is
continued by the court, it shall be the duty
of the court to hear the same at the earliest
practicable date thereafter, and 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 expiration
of said period be deemed denied."
Here the hearing was held on December 15, 1980. At
that time it was deemed submitted. It was deemed denied on
December 30, 1980, 15 days after it was submitted. There-
fore, Malinak's time to file his notice of appeal ran out on
January 29, 1981. The date of January 29, 1981 fell on a
Thursday and if we grant him 3 days for filing by mail his
notice of appeal, the final date for filing the notice of
appeal in the District Court was February 2, 1981. Obviously
and unfortunately, his appeal was not timely filed.
The court regrets that it makes this determination of
lack of jurisdiction at this late date, after hearings have
been held and other attempts made to resolve the important
issues raised in this case. We have noted in case after
case and tried to alert attorneys to the jurisdictional
traps that lie in post-trial motions under Rule 59. Our
earlier rulings in these cases mandate a dismissal in this
cause. Oster v. Oster (19SO), - Nont . - , 606 P.3d 1075,
37 St.Rep. 264; First National Eank of Lewistown v. Fry (1978),
176 Mont. 58, 575 P.2d 1325; Armstrong v. High Crest Oils,
Inc. (1974), 164 Mont. 187, 520 P.2d 1081; Sikorski and
Sons, Inc. v. Sikorski (1973), 162 Mont. 442, 512 P.2d
1147; Cain v. Harrington (1973), 161 Mont. 401, 506 P.2d
1375; Leitheiser v. Yontana State Prison (1973), 161 Mont.
The appeal is dismissed.
Dated t h i s 9 t h day of November, 1982.
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W e Concur:
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Chief J u s t i c e
Peter G. M e l o y d
,
D i s t r i c t Judge,
for Mr. Justice
M o r r i s o n , Jr.