IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 81-196 

------------ 

PAUL MALINAK, 

Plaintiff-Appellant, 

VS. 

SAFECO TITLE INSURANCE COMPANY 

OF IDAHO, and LINCOLd COUNTY 

TITLE COMPANY, 

Defendants-Respondents. 

OPINION AND ORDER 

Paul Malinak appeals from a summary judgment entered 

against him in the District Court of the Nineteenth Judicial 

District, Lincoln County, and in favor of the defendants 

Safeco Title Insurance Company of Idaho and Lincoln County 

Title Company. 

There are still pending claims against Malinak based on 

Safeco's claim for subrogation, but the District Court, in 

entering judgment, determined that there was no just reason 

for delay in the entry of final judgment as to Paul Malinak 

on his claims against the defendants. 

We find, however, that this Court has no jurisdiction 

of Malinak's appeal because his notice of appeal was not 

timely filed. 

Summary judgment was entered against Malinak by the 

District Court on November 25, 1980. On December 4, 1980, 

he filed his motion to alter or amend the summary judgment. 

At the same time he noticed the motion for hearing on 

December 15, 1980. 

Rule 59(g), M.R.Civ.P., provides: 
"Motion to alter or -- amend judgment. A motion 

to alteror amend the judgment shall be served 

not later than 10 days after the service of the 

notice of the entry of judgment, and may be 

combined with a motion for a new trial herein 

provided for. This motion shall be heard and 

determined within the time provided hereinabove 

with respect to a motion for new trial." 

Under Rule 59(g), Malinak's motion to alter or amend 

the judgment was timely filed. To determine whether a 

motion was heard and determined within the time provided 

with respect to a motion for new trial, we must look to the 

provisions of Rule 59 (d) . 

Rule 59(d), M.R.Civ.P. provides in pertinent part: 

"Rule 59(d). Time for hearing on motion. Hearing 

oneheon shallbe had within 10 days after 

it has been served,. . ." 

The written notice of hearing on the motion to alter or 

amend the judgment served by I4alinak provided for the hearing 

to occur on December 15, 1980. The motion was heard on 

December 15, and following the hearing, the court granted 

the parties to December 30, 1980 in which to file briefs. 

The court entered an order denying the motion to alter or 

amend the judgment on January 6, 1981. Plalinak dated his 

notice of appeal January 30, 1981, but it was not filed 

until February 4, 1981. 

When on December 4, 1930, Malinak set the motion to 

alter or amend the judgment for hearing on December 15, 

1980, he set it one day beyond the permissible time for a 

hearing, or 11 days. If his motion to alter or amend the 

judgment was served as appears in the record on December 4, 

1930, then the time for hearing expired on December 14, 1980 

and his time for filing his notice of appeal would begin 

running on that date. His notice of appeal filed February 

4, 1981 would obviously be beyond the permissible time for 

filing. 
There are further provisions of Rule 59(d) which come 

into play. Rule 59 (d) goes on to say: 

". . . at anytime after the notice of hearing 

on the motion has been served the court may 

issue an order continuing the hearing for not 

to exceed 30 days. In case the hearing is 

continued by the court, it shall be the duty 

of the court to hear the same at the earliest 

practicable date thereafter, and the court 

shall rule upon and decide the motion within 

15 days after the same is submitted. If the 

court shall fail to rule upon the motion within 

said time, the motion shall, at the expiration 

of said period be deemed denied." 

Here the hearing was held on December 15, 1980. At 

that time it was deemed submitted. It was deemed denied on 

December 30, 1980, 15 days after it was submitted. Therefore, Malinak's time to file his notice of appeal ran out on 

January 29, 1981. The date of January 29, 1981 fell on a 

Thursday and if we grant him 3 days for filing by mail his 

notice of appeal, the final date for filing the notice of 

appeal in the District Court was February 2, 1981. Obviously 

and unfortunately, his appeal was not timely filed. 

The court regrets that it makes this determination of 

lack of jurisdiction at this late date, after hearings have 

been held and other attempts made to resolve the important 

issues raised in this case. We have noted in case after 

case and tried to alert attorneys to the jurisdictional 

traps that lie in post-trial motions under Rule 59. Our 

earlier rulings in these cases mandate a dismissal in this 

cause. Oster v. Oster (19SO), - Nont . - 

, 606 P.3d 1075, 

37 St.Rep. 264; First National Eank of Lewistown v. Fry (1978), 

176 Mont. 58, 575 P.2d 1325; Armstrong v. High Crest Oils, 

Inc. (1974), 164 Mont. 187, 520 P.2d 1081; Sikorski and 

Sons, Inc. v. Sikorski (1973), 162 Mont. 442, 512 P.2d 

1147; Cain v. Harrington (1973), 161 Mont. 401, 506 P.2d 

1375; Leitheiser v. Yontana State Prison (1973), 161 Mont. 

The appeal is dismissed. 
Dated this 9th day of November, 1982. 

3 1 tv\ -6, &,-.mll~s 

j , Justice B J? 

We Concur: 

%+c-ad4 $?44 &tP 

Chief Justice 

, Peter G. Meloyd 

District Judge, 

for Mr. Justice 

Morrison, Jr.