No. 81-353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

DONALD H. LERUM ex ux, 

Plaintiffs, 

VS . 

JOHN E. LOGUE, 

***** Defendant. 

JOHN E. LOGUE, 

Third Party Plaintiff, Respondent, 

vs. 

MARILYN S. SMITHSON a/k/a 

MARILYN SUE MORRIS, 

Third Party Defendant, Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For A@pellant: 

LaRue Smith, Great Falls, Montana 

For Respondent: 

Richard DeJana, Kalispell, Montana 

For Plaintiff: 

Measure and Ogle, Kalispell, Montana 

Submitted on briefs: December 17, 1981 

Decided:Ma~ 13, 1982 

Filed: hi$,L{ 1 3 1982 
Mr. Justice Daniel J. Shea delivered the opinion of the 

Court. 

We are compelled to dismiss this appeal from the 

Flathead County District Court because the notice of appeal 

was not filed within the time permitted by Rule 5, F4.R.App.Civ.P. 

After the Flathead County District Court entered a May 

22, 1980 judgment in a contract action against Marilyn Sue 

Morris, she moved the court under Rule 60(b)(4), M.R.Civ.P., 

to vacate that judgment for being void. Loguets counsel was 

served by mail with a copy of this motion on May 22, 1981, 

and the motion was filed with the District Court on May 26, 

1981. On June 3, 1981, the court set a hearing on the 

motion for June 30, 1981, and on June 24, 1981, sent counsel 

for both parties notice of this hearing. After the June 

30, 1981 hearing, the court received a written brief from 

Morris on July 13, 1981, and granted Logue until July 24, 

1981, to file a responsive brief. The court denied Morrist 

motion to vacate the judgment on July 28, 1981. Morris then 

filed her notice of appeal with the District Court on August 

3, 1981. 

Briefs have been filed by counsel for both parties and 

the motion to dismiss has been submitted for decision. 

Rule 60(c), M.R.Civ.P., provides that motions made under 

Rule 60(b), M.R.Civ.P., are to be heard and determined 

within the time limits provided by Rule 59, P4.R.Civ.P. In 

turn, Rule 59(d), M.R.Civ.P., provides that the District 

Court shall hold a hearing and rule upon the motion within 

ten days after the motion has been served. If the court 

fails to rule upon the motion within that time, the motion 

shall be deemed denied at the expiration of those ten days. 

Here, Morris' motion was served on May 22, 1981, and 

the hearing was set for June 30, 1981. From the time the 

motion was served until the time the motion was heard, 39 
days had elapsed. The District Court had no jurisdiction to 

rule upon this motion after the expiration of ten days, and 

therefore, the motion is deemed denied on June 1, 1981. 

Morris then had 30 days from the date her motion was 

deemed denied under Rule 59(d), M.R.Civ.P., in which to file 

her notice of appeal with the District Court. Rule 5, 

M.R.App.Civ.P.; Leitheiser v. Montana State Prison (1973), 

161 Mont. 343, 505 P.2d 1203. Accordingly, we hold that 

Morris' time for filing this appeal started June 1, 1981, 

and expired 30 days thereafter, on July 1, 1981. 

While we have acknowledged that this rule may, in some 

cases, work harsh results, we have also emphasized that the 

public has the right to the expectation of finality of 

judgments. Kelly v. Sell & Sell Paint Contractors (1978), 

175 Mont. 440, 574 P.2d 1002. The time and procedural 

limitations for motions subsequent to judgment set out in 

Rule 59, M.R.Civ.P., are mandatory and are strictly enforced. 

See, for example, Oster v. Oster (1980), - Mont. 

, 606 P.2d 1075, 37 St.Rep. 264; Britton v. Burlington 

Northern, Inc. (1979), - Mont. - , 601 P.2d 1192, 36 

St.Rep. 1956; Kelly v. Sell & Sell Paint Contractors, supra; 

Sikorski & Sons, Inc. v. Sikorski (1973), 162 Mont. 442, 512 

P.2d 1147; Leitheiser, supra; Cain v. ~arrinqton (1973), 161 

Mont. 401, 506 P.2d 1375. 

Because Morris did not timely file her notice of appeal, 

the respondent's motion to dismiss this appeal is granted. 
We Concur: 

T/LP-&J~~~ 

Chief Justlce 

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