No. 14783 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

HERMAN BYRD, d/b/a BYRD'S FOOD MART, Plaintiff and Respondent,

COLUMBIA FALLS LIONS CLUB and KENNETH E. GILES, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, Honorable JamesM. Salansky, Judge presiding. Counsel of Record: ForAppellant: JamesA. Cumming, Columbia Falls,Montana For Respondent: Robert B. Allison, Kalispell,Montana

Submitted on briefs: August 1, 1979 Decided:

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## 1$51979Mr. Justice John C. Sheehy delivered the Opinion of the Court.
This is an appealby the defendant, Columbia Falls Lions Club from an order entered by the District Court, Eleventh Judicial District,Flathead County,denying the defendant's motion to set aside an order dismissing his appeal from the Flathead County Justice Court. The dismissal order was entered upon amotion to dismiss by the plaintiff Herman Byrd, d/b/a Byrd's Food Mart. The plaintiff owns a small grocery store in Martin City, Montana. In June 1974,Kenneth Giles entered plaintiff's grocery store and represented that he was a scout leader who was leading a group of scouts to a camporee financed by the defendant. On the basis of this representation,plaintiff made sales and deliveries to Giles totaling $831.44. Plaintiff tried unsuccessfully to collect this account from Giles. Plaintiff then sought payment from the defendant who denied having sponsored the camporee. InMay 1977,plaintiff brought an action in the Flathead County Justice Court against both the defendant and Giles for payment of his account. A trialwas held before the Justice of the Peace in July 1977. The Justice Court entered judgment in favor of plaintiff inAugust 1977. Giles suffered

a default judgment and is not a party to this appeal. On September 14, 1977,the defendant filed a notice of appeal togetherwith an undertaking, and the causewas transmitted to the DistrictCourt. Except for some informal settlement discussions, no further actionwas taken in this cause for over thirteenmonths. On October 26, 1978,plaintiff filed amotion to dismiss the appeal on the ground of unnecessary delay. Themotionand an accompanying memorandum of authoritywere duly served on the defendant. It did not file any reponse to the motion. On January 3, 1979, the District Court granted the motion and dismissed the appeal on the ground asserted. No hearing on the motion was held, and no notice of an intent to rule on the motion was given to the defendant. The defendantmoved to set aside the order dismissing the appeal on January 10, 1979. Such motion was denied, and the defendant has appealed from this denial. The sole issue upon this appeal is whether the District Court violated the defendant's constitutional right to due process of law

### by granting the motion to dismisswithout a hearing or any notice of an intention to rule on the motion. We hold that it did not. The right to due process of the law is guaranteed by both the Montana and United States Constitutions. U.S. Const., Amend. XIV; 1972Mont. Const., Art. 11, S17. The interest to be protected by due process of the law is the opportunity to be heard. That interest is of no value if an interested party isnot informed that a matter ispending and cannot decide forhimself whether to contest or acquiesce. Mullane v. Central Hanover Tr. Co.

(1950), 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed 865. Thus,noticemust be given in any proceeding which is to be accorded finality, and such noticemust be reasonably calculated, under the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane, supra. We find the defendant here was given sufficient notice and an opportunity to be heard.

### The defendantwas duly servedwith a copy of the motion to dismiss and its supporting memorandum. Such servicewas reasonably calculated, under the circumstances, to apprise the defendant of the pendency of themotion to dismiss and the grounds thereof. Similarly,Rule 5 

### of the Eleventh Judicial District, State of Montana, gave the defendant ten days to file a reply to the motion to dismiss. This timeperiod was reasonably calculated,under the circumstances,to afford defendant with an opportunity to present its objections to themotion to dismiss. Yet, it failed to do so. Such failure is deemed an admission that themotion iswell taken in the defendant's opinion. Rule 11,Uniform Rules for District Courts of Montana; Rule 5,

### Eleventh Judicial District, State of Montana. The defendant contends it was unfair to grant the motion to dismiss since it was engaged in settlement discussions with the plaintiff during the pendency of the motion to dismiss. This objection iswithoutmerit. Thesediscussions were conducted informallywithout the approval of the court, and during this period, the defendant never requested an extension of time, withdrawal of the motion or any other form of relief from either the District Court or theplaintiff. The District Court properly granted the plaintiff's motion to dismiss the appeal on the ground of unnecessary delay. Once the appealwas perfected to the District Court, the defendant had the burden of carrying its cause forward. Eide Insurancev. Correll (1970),156Mont. 167, 478 P.2d 272. Yet, it allowed the cause to rest idle for over a year. Similarly, the defendantwas apprised of the pendency of the motion to dismiss and was given an opportunity to respond. Yet, it failed to do so. -4-The order of theDistrict Court denying plaintiff's motion to set aside the dismissal is affirmed.

Justice

We Concur:

/chief Justi

I, 

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