IN THE SUPREME COURT OF THE STATE OF MONTANA 

2- - 

CLARENCE D. ANDERSON and GLORIA A. a - - 

ANDERSON, husband and wife, et al., -4 rv cf) Plaintiffs and Appellants, A .-* - <*. 

-vs- < 

MICHAEL A. BASHEY and JOYCE A. BASHEY, MARC 

HUTCHINSON and JANE DOE HUTCHINSON, DONNA 

DeCARO and JOHN DOE DeCARO, BASHEY & COMPANY, . . 

and BASHEY, DeCARO & COMPANY, I,', 

Defendants and Respondents, t- o , . 

and c 2 

DANA P. DAIGLE and RUTH D. DAIGLE, HARRY E. --i 

CHESMAN and DEEORAH T. CHESMAN, and MICHAEL J. 

MULRONEY , Defendants. 

APPEAL FROM: ~istrict Court of the ~ighth ~udicial ~istrict, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas H. Clary; Clary & Clary, Great Falls, Montana 

Spencer Hall, Jr.; Mundt, MacGregor, Happel, Falconer, 

Zulauf & Elall, Seattle, Washington 

For Respondent: 

Robert J. Ernmons; Emmons & Coder, (Bashey, etc.), Great 

Falls, Montana 

Mary C. EkLund; ~ittner & Barker, (Bashey, ~utchinson, 

DeCaro (& CO), Seattle, ~ashington 

William E. ~itzharris, Jr.; Hallmark, eating & Abbott, 

(Chesman), Seattle, ~ashington 

Geoffrey P. Knudsen; Stoel, ~ives, Boley, Jones & Grey, 

(~aigle), Seattle, ~ashington 

Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman, 

(Daigle) , Helena, Montana 

Judith A. Butler; ~ukins & ~nnis, (Mulroney), Spokane, 

~ashington 

Terry B. Cosgrove; Luxan & ~urfitt, (Mulroney) Helena, 

Montana 

Filed: 

submitted on ~riefs: Oct. 20, 1989 

Decided: February 2, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

Plaintiffs appeal a judgment of the Eighth Judicial ~istrict, 

Cascade County, granting defendant's motion to dismiss for lack of 

in personam jurisdiction. 

Defendants raise the question of whether or not the plaintiffs 

properly and timely filed their notice of appeal. Having examined 

the record and the law on the issue, we find the appeal is untimely 

and we are without jurisdiction to hear it. 

The plaintiffs in this action purchased interests in a 

washington general partnership that owned and operated ten orchards 

located in central Washington. The defendants are Washington 

accountants, who worked for the general partnership. 

The plaintiffs allege the defendants joined in a scheme to 

defraud Montana residents through the unlawful sale of partnership 

interests in the Washington fruit orchards. According to the 

plaintiffs, the accountants assisted in carrying out the orchards 

scheme by preparing tax opinion letters and financial information 

used to sell the orchard securities in Montana and by acting as the 

accountants for the orchards by, among other services, preparing 

annual tax returns for the orchard partnerships and preparing 

individual schedule K-1 tax forms for the investors in Montana. 

On March 1, 1989, the District Court entered an order 

dismissing all claims assessed against the defendants Micheal A. 

Bashey and Joyce A. Bashey, husband and wife; Donna DeCaro and her 

deceased husband, Michael DeCaro; Marc S. Hutchinson and Elizabeth 

Hutchinson, husband and wife; Bashey & Company, a Washington 

general partnership; and Bashey DeCaro & Company, a Washington 

general partnership (collectively hereinafter the Bashey 

defendants). The District Court in March 1, 1989, ruled that there 

was no personal jurisdiction over the Bashey defendants in Montana. 

On March 2, 1989, the plaintiffs acknowledged personal service 

of the notice of entry of judgment of the March 1, 1989 order. 
Subsequently, on March 13, 1989, the plaintiffs filed a motion for 

reconsideration. Finally, on April 27, 1989, the plaintiffs filed 

their notice of appeal. 

The issue raised by the plaintiffs is whether the District 

Court properly granted defendants1 motion to dismiss for lack of 

in personam jurisdiction. We do not have jurisdiction to determine 

this issue. Plaintiffs1 notice of appeal was not timely, and 

therefore this Court is without jurisdiction to hear it. 

Consequently, plaintiffs' appeal must be dismissed. 

On March 1, 1989, the District Court entered an order 

dismissing all claims against the Bashey defendants. On March 2, 

1989, the plaintiffs acknowledged the service of the notice of 

entry of judgment. At that point, if plaintiffs desired relief 

from the court's judgment they had the following alternatives: 

1. File an appeal within 30 days from the service of notice 

of entry of judgment. Rule 5 (a) (1) , M.R.App. P. 

2. Move for a new trial not later than 10 days after service 

of the notice of entry of judgment. Rule 59(a) and (b), 

M.R.Civ.P. 

3. Move to alter or amend the judgment not later than 10 days 

after the service of the notice of entry of judgment. Rule 

59(g), M.R.Civ.P., or 

4. Move for an amendment of the District Court's findings no 

later than 10 days after service of the notice of entry of 

judgment. Rule 52 (b) , M.R.Civ.P. 

Although the plaintiff had a variety of motions to choose 

from, the plaintiffs elected to file a motion for reconsideration. 

A motion for reconsideration is not listed as a post-judgment 

motion under the Montana Rules of Civil Procedure. The plaintiffs1 

motion therefore has no effect, unless we equate it to a motion 

under Rule 59, or Rule 52, M.R.Civ.P. The plaintiffs1 motion fails 

to meet the provision ". . . no later than 10 days after service 
of notice of entry of judgment1! as required by the Rules. On March 

2, 1989, the plaintiffs acknowledged personal service of the notice 

of entry of judgment. Unfortunately, the plaintiffs filed their 

motion on March 13, 1989, one day too late under the Rules. 

The plaintiffs1 tardiness in filing their motion has 

devastating consequences under the time requirements for filing a 

notice of appeal. Under Rule 5, M.R.App.P., the time for filing 

a notice of appeal may be suspended by certain timely post-trial 

motions. Rule 5 (a) (4), M.R.App.P. Here, however, plaintiffs' 

post-trial motions were without effect to lengthen the time limits 

for a notice of appeal. The motion filed by the plaintiff is 

barred by the ten day limitation. Rules 59 and 52, M.R.Civ.P. 

Rule 5 (a) (1) , M.R.App. P., provides that an appeal from an 

order must be taken within 30 days of its entry except that in 

cases where service of notice of entry is required, the time for 

appeal shall be 30 days from the service of notice of entry of 

judgment. In Re the Marriage of McDonald (1979), 183 Mont. 312, 

314, 599 P.2d 356, 357. Here, service of the notice of entry of 

judgment was made on March 2, 1989. The plaintiffs filed their 

notice of appeal on April 27, 1989, well beyond the 30 day time 

limit set forth in Rule 5 (a) (I), M.R.App.P. 

This Court has long held that the time limits for an appeal 

are mandatory and jurisdictional. OIConnell v. Heisdorf (1982), 

202 Mont. 89, 91, 656 P.2d 199, 200; Price v. Zunchich (1980), 188 

Mont. 230, 235, 612 P.2d 1296, 1299; Snyder v. Gommenginger (1979), 

183 Mont. 375, 376-77, 600 P.2d 171, 172-73. In the present case, 
the plaintiffs were required to perfect an appeal in the manner and 

within the time limits provided by the law. The plaintiffs have 

failed, and therefore, this Court did not acquire jurisdiction to 

entertain and determine their appeal. Snyder, 600 P.2d at 173. 

Accordingly, it is hereby ordered that this appeal be 

dismissed as not having been timely filed pursuant to Rule 5, 

1 - ,-L,f&Jur i ,6- 

Justice # 

'J 

We Concur: 

Justices