dissenting:
The appellant’s appeal from the trial court’s denial of his petition for post-conviction relief was not timely filed and, accordingly, this appeal should be dismissed.
The trial court’s order was filed on January 9, 1984. The notice of appeal was filed on February 27, 1984, 49 days after the entry of the trial court’s order. I.A.R. 14 requires that appeals from the district court shall be filed within 42 days from the date evidenced by the filing stamp of the clerk of the court on the order appealed from. I.A.R. 21 further provides that “the failure to physically file a notice of appeal ... with the district court ... within the time limits prescribed by these rules, shall be jurisdictional and shall cause automatic dismissal of such appeal or petition, upon the motion of any party, or upon the initiative of the Supreme Court.” (Emphasis added.) The notice of appeal not having been timely filed, the appeal should be dismissed.
The appellant asserts that the appeal time from the denial of a post-conviction relief proceeding is 60 days, citing I.C. § 19-4909. However, that section, which was enacted in 1967, was repealed by the 1977 amendment to I.C. § 13-201, which provided that “an appeal may be taken to the Supreme Court from a district court in any civil action by such parties from such orders and judgments, and within such times and in such manner as prescribed by rule of the Supreme Court.” An application for post-conviction relief is a civil action. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983); State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983).
Accordingly, the motion to dismiss the appeal should be granted and the appeal dismissed.
McFADDEN, J. pro tern., concurs. McFADDEN, Judge Pro Tem.,dissenting.
I dissent from the foregoing opinion for the reason that I am of the conclusion that the state’s motion to dismiss the appeal should have been granted on the basis that the appeal was not timely filed.1
It is to be recalled that the trial court’s Order on Petition for Post Conviction Relief was filed in the district court clerk’s office on January 9, 1984. The appellant’s Notice of Appeal was not filed until February 27, 1984, some 49 days after the entry of the trial court’s order. I.A.R. 14 requires that appeals from the district court “may be made only by physically filing a notice with the clerk of the district court within 42 days from the date evidenced by the filing stamp of the clerk of the court on any judgment, order or decree of the district court appealable as a matter of right in any civil or criminal action.”
Following the filing of the Notice of Appeal the state moved to dismiss the appeal on two grounds: (1) the appeal was not timely filed; (2) the basis of appellant’s appeal, i.e., ineffective assistance of counsel, had previously been decided adversely to appellant in the prior appeal, State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981), and hence the doctrine of res judicata barred further consideration of that issue. Since I reach the conclusion that the appeal was not timely filed, it is unnecessary to consider the second issue.
Appellant counters the state’s contention that the appeal was untimely filed, asserting two grounds: (1) I.C. § 19-4909, which provides that an appeal from a judgment in *797a post-conviction proceeding may be made within 60 days of the entry of the judgment, and hence was timely filed within the provisions of that statute; (2) that on March 7, 1984, the district court entered an “addendum” to the previous Order on Petition for Post-Conviction Relief, and hence in any event the notice of appeal was timely filed. Appellant, in support of this second contention, submitted to this Court an affidavit of the appellant’s counsel that filed the notice of appeal from the order filed January 9, 1984, wherein counsel set out the ex parte contacts he made with the trial judge leading to the issuance of the “addendum” order.
The issue is directly placed before this Court as to whether the provisions of Idaho Appellate Rule 14, providing that an appeal must be taken within 42 days of entry of a judgment, or the provisions of I.C. § 19-4909, providing an appeal must be taken within 60 days of entry of judgment, control in this appeal.
I am of the opinion that the provisions of I.A.R. 14 govern. I.A.R. 14 provides in pertinent part:
“These rules shall take effect on July 1, 1977, and thereafter all laws and rules of appellate procedure in the Supreme Court in conflict therewith shall be of no further force or effect____”
An application for post-conviction relief is civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983); State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983); Idaho Appellate Rule 11(a)(1) governs appeals from an order denying post-conviction relief. It provides in part that:
“An appeal as a matter of right may be taken to the Supreme Court from the following judgments and orders:
(a) Civil Actions. From the following judgments and orders of a district court in a civil action:
(1) Final judgments and decrees including decisions by the district court dismissing, affirming or reversing or remanding on appeal.”
I.C. § 19-4907 provides for a hearing on the post-conviction hearing in proper case and states: “All rules and statutes applicable in civil proceedings including pretrial discovery and appellate procedures are available to the parties.” It also provides for an order with findings of fact, conclusions of law, and that such order is a final judgment. It thus follows that the appeals in such cases are governed by the Idaho Appellate Rules.
I.C. § 1-212 recognizes the inherent power of the Supreme Court to make rules governing procedure in all courts of Idaho. I.C. § 1-213 provides:
“The Supreme Court shall prescribe, by general rules, for all the courts of Idaho, the forms of process, writs, pleadings and motions, the manner of service, time of appearance, and the practice and procedure in all actions and proceedings. Said rules shall neither abridge, enlarge nor modify the substantive rights of any litigant.”
By this statute the legislature placed with the Supreme Court the sole authority to make rules governing procedural matters which do not abridge, enlarge or modify the substantive rights of any litigant. In 1977, the legislature adopted I.C. § 13-201 which specifically dealt with the time for taking of appeals; it provided:
“An appeal may be taken to the Supreme Court from a district court in any civil action by such parties from such orders and judgments and within such times and in such manner as prescribed by Rule of the Supreme Court.”
By enactment of this statute, the legislature effectively repealed the effectiveness of the 60-day time for appeal of I.C. § 19-4909, relegating the time for taking of appeals in civil actions to the rulemaking authority of the Supreme Court.
This Court, in the case of R.E.W. Constr. Co. v. District Court of the Third Jud. Dist., 88 Idaho 426, 400 P.2d 390 (1965), affirmed the rulemaking authority of this Court in civil cases. In State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985), this Court also recognized the rulemaking authority of this Court when it conflicted with a statutory enactment. In State v. Currington, supra, this Court quoted from State v. Smith, 84 Wash.2d 498, 527 P.2d *798674, 676-77 (1974), where that court discussed the line of demarcation between “substantive” and “procedural” matters. For other cases involving conflicts between statutory criminal provisions and Supreme Court rules in criminal cases in matters of procedure, see State v. Lewis, 107 Idaho 616, 691 P.2d 1231 (1984); State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979); State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975).
Clearly under the record of this case, the Supreme Court rule as concerning the time for taking of an appeal from a final order in a post-conviction proceeding is governed by I.A.R. 14.
The final question to be considered is whether the “addendum” to the Order on Petition for Post-Conviction Relief effectively extended the time within which the appellant could take his appeal. It is my conclusion that it did not.
Idaho Appellate Rule 14 authorizes that an appeal may be taken within 42 days of the entry of judgment appealed from. It also provides:
“The time for an appeal from such judgment, order or decree is terminated by the filing of a timely motion which, if granted, could affect the findings of fact, conclusions of law or judgment (except motions under Rule 60 of the Idaho Rules of Civil Procedure or motions regarding costs or attorney fees), in which case the appeal period commences to run upon the date of the filing stamp on the order deciding such motion.”
The Idaho Rules of Civil Procedure authorize the filing of a motion for new trial or amendment of judgment (I.R.C.P. 59(a)); and a motion to alter or amend a judgment (I.R.C.P. 59(e)). The record before this Court reflects no motion for a new trial or amendment of judgment or reconsideration (which, while not recognized as a valid motion, in cases has been treated as a motion for amendment) ever having been filed in the lower court. I.R.C.P. 5(a) requires service of a motion on the opposing party, and that, again does not appear of record. The most that appears is an affidavit, dated August 16, 1984, by appellant’s attorney who represented appellant at the post-conviction proceeding. There the attorney recites that he called the district judge in January, 1984, subsequent to execution of the Order on Petition for Post-Conviction Relief, and asked that the judge reconsider his decision, and further that he and the judge had “further decision (sic — discussion?) about his original ruling from time to time and on March 5, 1984, I provided him with more authority concerning our position the errors were not harmless.” This is a far cry from the filing of a motion with the court and service of it upon opposing counsel, the procedure required in order to secure the benefits of a tolling of the time for the taking of an appeal as provided by I.A.R. 14 which first requires the “filing of a timely motion.” The contention of the appellant in this regard is without merit.
The appeal should be dismissed.
BAKES, J., concurs.. At the outset I wish to point out that present counsel were apparently brought into this case subsequent to the appeal having been taken and had nothing to do with this case at the trial level, the first appeal, the post-conviction proceedings, nor taking of the appeal.