### No. 13685 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977



### LARRY 

### L. PHILLIPS, Plaint iff and Appellant,

THE

### MONTANA EDUCATIONASSOCIATION, a non-profit corporation,et al., Defendants and Respondents.
Appeal from: District Court of the First Judicial District, Honorable PeterG. Meloy, Judge presiding.
Counsel of 

### Record: ForAppellant: McKittrick & 

### Duffy, Great Falls,Montana CarrollBlend argued,Great Falls,Montana For Respondents: Jardine, Stevenson,Blewett & 

### Weaver, Great Falls,Montana Hilley & 

### Loring, Great Falls,Montana Alexander Blewett 111,argued,Great Falls,Montana

Submitted: June 8, 

### 1977 Decided: 

### JUN

## 22

# lgn Filed:

### JU(

## 22

## 1977

Clerk.Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Plaintiff Larry L. Phillipsbrought this action in the district court against defendant Montana Education Association,
a non-profit corporation, etal., torecover damages for termination of his contract of employment as executive secretary of defendant association. The district court granted a motion to strike a portion of Count V of the complaint relating to attorney fees, and also to strike Paragraph 8 of Count 

### 11, seeking exemplary damages. Plaintiff appealed this order of the district court. Defendant association (MEA) filed a motion with this Court todismiss plaintiff's appeal as the order appealed from 

### isnot an appealable order under Rule No. 

### 1,MoR0App.Ci~.P. Briefs were filed and oral arguments had on Wednesday, June 8, 1977. The Court took the 

### matter 

### under advisement. Rule No. 

### 1, M.R.App.CSv.P., provides inpertinent part: "Rule 

### 1. Scope of rules--From what judgment or order an appeal may be taken. "These rules govern procedure in appeals in civil cases to the supreme court of Montana from Montana district courts and originalproceedings inthe supreme court of Montana. The party applying for original relief 

### is

### known as the petitioner and the adverse party as the defendant. The party appealing 

### is known as the appellant, and the adverse party as the respondent. "A party aggrieved may appeal from a judgment or order, except when expressly made finalby law, in the following cases: "(a) From a finaljudgment entered in an action or special proceeding commenced in a district court, orbrought into a district court from another court or administrative body.'' (Emphasis added.)In light of this rule, the question becomes whether or not an order granting a motion to strikecertainportions of a plaintiff's complaint 

### is a "final judgment" and hence appealable. This question was answered in the negative by this Court in two separate decisions. 1)'InState ex rel. Great Falls National Bank v. District Court, 154 Mont. 336, 340, 463 P.2d 326, this Court in reference to an order of the district court strikingmaterial from the pleadings, stated: "The first issue involves procedural matters

# ***. (1) the order striking two defenses from its answer, viz. plaintiff's 

### own acts and omissions were the sole proximate cause of the accident, and (2) the order granting plaintiff summary judgment on the issue of liability. These orders are not directly appealable, neither being denominated an appealable order in Rule 

### 1, M.R.App.Civ.P., presumably because 

### each is interlocutory incharacter and reviewable on appeal from final iudgment .'I (Emphasis added.) 2) In Campanella v. Bouma, 164Mont. 214, 227, 229, 520 P.2d 1073, this Court, in determining the Assue of appealability of an order granting a motion to strike, said: 

# "*

# ** Essentially a single issue 

### is determinative of the appeal. That iswhether an order such as this striking portions of a pleading asbeing frivolous, impertinent and immaterial 

### is appealable. "We hold that it isnot.


### "*

# * * An order striking such matters isnot appealable prior to finaljudgment .I' The motion of defendant MEA to dismiss this appeal is granted and the cause ordered remanded to the district court for further 9 proceedings.

### We Concur:

Mr. Chief Justice Paul G. 

### Hatfield deeming himself disqualified, did not participate in this Opinion