No. 13685 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

LARRY L. PHILLIPS, 

Plaint iff and Appellant, 

THE MONTANA EDUCATION ASSOCIATION, 

a non-profit corporation, et al., 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

McKittrick & Duffy, Great Falls, Montana 

Carroll Blend 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 2 2 lgn 

Filed: JU( 22 1977 

Clerk. 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff Larry L. Phillips brought this action in the 

district court against defendant Montana Education Association, 

a non-profit corporation, et al., to recover 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 to dismiss plaintiff's appeal as the order appealed from 

is not 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 in pertinent 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 original proceedings 

in the 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 final by law, 

in the following cases: 

"(a) From a final judgment entered in an action 

or special proceeding commenced in a district court, 

or brought 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 strike certain portions 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)'In State 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 striking material 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 

in character and reviewable on appeal from final iudgment .'I (Emphasis added. ) 

2) In Campanella v. Bouma, 164 Mont. 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 is whether an order such 

as this striking portions of a pleading as being 

frivolous, impertinent and immaterial is appealable. 

"We hold that it is not. 

"* * * An order striking such matters is not 

appealable prior to final judgment .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