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 James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

James A. Cumming, Columbia Falls, Montana 

For Respondent: 

Robert B. Allison, Kalispell, Montana 

Submitted on briefs: August 1, 1979 

Decided: sEC 1 !Yfl 

Filed: ZEC 1 $5 1979 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

This is an appeal by 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 a motion 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. 

In May 1977, plaintiff brought an action in the Flathead 

County Justice Court against both the defendant and Giles 

for payment of his account. A trial was held before the 

Justice of the Peace in July 1977. The Justice Court entered 

judgment in favor of plaintiff in August 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 together with an undertaking, and the cause was 

transmitted to the District Court. Except for some informal 

settlement discussions, no further action was taken in this 

cause for over thirteen months. 

On October 26, 1978, plaintiff filed a motion to dismiss 

the appeal on the ground of unnecessary delay. The motion 
and an accompanying memorandum of authority were 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 defendant moved 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 dismiss without 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; 1972 Mont. 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 is not informed that a 

matter is pending and cannot decide for himself 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, notice must be given in any proceeding which is to 

be accorded finality, and such notice must 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 defendant was duly served with a copy of the 

motion to dismiss and its supporting memorandum. Such 

service was reasonably calculated, under the circumstances, 

to apprise the defendant of the pendency of the motion 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 time period was reasonably 

calculated, under the circumstances, to afford defendant 

with an opportunity to present its objections to the motion 

to dismiss. Yet, it failed to do so. Such failure is 

deemed an admission that the motion is well 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 is without merit. These discussions 

were conducted informally without 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 the plaintiff. 

The District Court properly granted the plaintiff's 

motion to dismiss the appeal on the ground of unnecessary 

delay. Once the appeal was perfected to the District Court, 

the defendant had the burden of carrying its cause forward. 

Eide Insurance v. Correll (1970), 156 Mont. 167, 478 P.2d 

272. Yet, it allowed the cause to rest idle for over a year. 

Similarly, the defendant was 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 the District Court denying plaintiff's 

motion to set aside the dismissal is affirmed. 

Justice 

We Concur: 

/chief Justi I, 7,