No. 14870 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

CHARLOTTE TAYLOR PRICE, 

Plaintiff and Appellant, 

RUDOLPH L. ZUNCHICH, his wife if any, 

and RAYMOND E. BAUER, his wife if any, 

Defendants and Respondents. 

Appeal from: The District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Warden, Christiansen and Johnson, Kalispell, 

Montana 

Gary R. Christiansen argued, Kalispell, Montana 

For Respondents: 

Robert J. Emmons argued, Great Falls, Montana 

Submitted: May 23, 1980 

Decided : JUN 24 1989 

Filed: E!!M 2 4 Ijgg) 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is a quiet title action brought in the District 

Court Eleventh Judicial District, Flathead County, by 

Charlotte Taylor Price against Rudolph L. Zunchich and 

Raymond E. Bauer. Trial was held in District Court without 

a jury, and judgment was rendered against Price and in favor 

of Bauer and Zunchich. Price appeals from those portions of 

the judgment which quiet title to the disputed land in favor 

of Bauer and Zunchich and which orders Price to remove a 

fence she had built on that land. 

This cause involves two tracts of property owned by the 

respective parties and located on Lake Five, near West 

Glacier, Montana. The Bauer-Zunchich tract is immediately 

north of the Price tract. The Bauer-Zunchich chain of title 

specifies the common boundary as "East . . . to a point on 

the Westerly boundary of the county road." The Price chain 

of title calls out the common boundary as "Northeasterly 620 

feet." 

Both tracts can be traced back to a common title. 

After acquiring Government Lot 6 in 1928, Fred and Evelyn 

Parker began selling portions of that Lot using Lake Five as 

the west boundary and the county road as the east boundary. 

The descriptions in all the various deeds begin at the 

northwest corner of Lot 6 and call out the westerly boundary 

of Lake Five in specific footage. 

On April 8, 1940, the Bauer-Zunchich tract was conveyed 

by the Parkers to John Sloan. By way of mesne conveyances, 

the Bauer-Zunchich tract was transferred to Charles Corbett, 

who in turn sold the tract to Bauer and Zunchich on October 

29, 1957. The Price tract, on the other hand, was conveyed 

by quitclaim deed from Evelyn Parker, then the sole owner, 
to C. W. McKerr in 1945. The tract eventually was distributed 

in probate to Price on October 3, 1967. 

At some point, Price decided to build a new home on her 

tract. Standing at a point on the shore of Lake Five which 

all parties agree to be a common point, Price took a compass 

reading which allegedly showed Zunchich's improvements 

encroached upon Price's property. Price retained a registered 

land surveyor, M. L. Haiges, who prepared a certificate of 

survey. Rather than using the northeast course specified in 

the Price chain, Haiges used a course of "East 620 feet, 

more or less, from the point of beginning" which is specified 

in the Bauer-Zunchich chain. If the northeast course is 

used, the description in the Price deed will not close. 

After Haiges finished his survey, Price built a fence 

within the property claimed by her and south of the boundary 

line as established by Haiges. This was done without the 

consent of Bauer and Zunchich and for the purpose of claiming 

ownership of the property. 

Using the Haiges survey, there were still encroachments 

by Zunchich's improvements. Negotiations between Price, 

Bauer and Zunchich failed. Consequently, in December 1976, 

Price filed this cause to determine the proper boundary 

line, to quiet title to the disputed land and to force the 

removal of the alleged encroachments. The answer of Bauer 

and Zunchich also sought title to the disputed land and 

sought damages for the fence built by Price. 

Three separate surveys were conducted prior to trial, 

one by Haiges for Price, one by Lewis Fontana for Bauer and 

Zunchich, and one by Dean K. Marquardt for Mrs. Corbett. 

All three surveys produced a different result. 

The trial began September 5, 1978, and was completed on 

November 21, 1978. On February 16, 1979, the District Court 
filed the findings and conclusions. Five days later, the 

District Court entered its judgment, and the notice of entry 

of judgment was given the following day. 

The District Court found the Fontana survey reflected the 

true boundary line. Accordingly, title to the disputed land 

was quieted in Bauer and Zunchich. The judgment also 

ordered Price to remove a portion of the fence she had built 

on the disputed land. 

On March 12, 1979, Price filed motions (1) for an 

order vacating and amending the findings, conclusions and 

judgment of the District Court; (2) for a new trial; (3) for 

permission to present additional testimony by registered 

surveyors; and (4) for a --- nunc pro tunc order finding the 

Haiges survey as establishing the proper common boundary 

line. A hearing on the motions was set for April 20, 1979. 

On March 23, 1979, the District Court by its own motion 

vacated the judgment of February 21 and the findings and 

conclusions supporting that judgment pending the hearing on 

Price's motions. In a memorandum appended to the order, the 

District Court manifested its intention to protect the 

parties' rights to appeal. The District Court made it 

clear that no judgment should be deemed to have been entered 

in this cause. 

On April 20, 1979, the District Court entered an order 

denying all of Price's motions. The order ended by stating, 

"the parties' individual rights for notice of appeal . . . 

shall follow the judgment and notice rendered and entered by 

the Court this date." Price's notice of appeal was given on 

May 4, 1979. 

The general issue raised by Price is whether the District 

Court's judgment is supported by substantial evidence. 
Specifically, Price objects to the District Court's rejection 

of the Haiges survey, allowing Zunchich and Bauer to maintain 

improvements on the disputed land and the order requiring 

removal of Price's fence. 

We do not have jurisdiction to determine this issue. 

Price's notice of appeal was not timely, and Price did not 

take any action which would suspend the time limits for an 

appeal. Rule 6 (c) , M.R.Civ.P., and Rule 5, M.R.App.Civ.P. 

Consequently, Price's appeal must be dismissed. 

Under Rule 5, M.R.App.Civ.P., the time for filing a 

notice of appeal may be suspended by certain timely posttrial motions. Here, however, Price's post-trial motions 

were without effect to extend the time limits for a notice 

of appeal. Motions to amend the findings and judgment and 

for a new trial would be barred by the ten day limitation on 

such motions. Rules 52 (b) , 59 (b) and (g) , M.R.Civ.P. The 

notice of entry of judgment was filed here on February 22, 

1979, and Price's motions were filed on March 12, 1979. 

Additionally, Price did not assert the proper grounds for a 

new trial in a bench trial. Sections 25-11-102 and 25-11- 

103, MCA. 

A District Court may also suspend the time for a notice 

of appeal up to an additional thirty days upon a showing of 

excusable neglect. Rule 5, M.R.App.Civ.P. Here, however, 

Price made no motion alleging excusable neglect, no showing 

of such neglect and no showing an injustice would otherwise 

result. Moreover, even assuming excusable neglect here, 

Price's time for appeal ran out on April 26, 1979, sixtythree days from February 22, 1979. Yet, Price mailed her 

notice of appeal on May 4, 1979, and under Rule 5(b), M.R.Civ.P., 

service by mail is complete upon mailing. 

- 5- 
On March 23, 1979, the District Court vacated its 

judgment pending the hearing on Price's post-trial motions. 

Since Price's motion was without effect, the District Court 

had no power to enter the above order. A District Court may 

amend judgments at any time to make them express what was 

actually decided. However, once a judgment has been rendered 

as intended, it is final and must stand until corrected by 

some statutory method, generally by a timely motion for new 

trial or an appeal. State ex rel. Smith v. District Court 

(1919), 55 Mont. 602, 605-06, 179 P. 831, 833. 

We stress here that the time limits for an appeal are 

mandatory and jurisdictional. An appellant has a duty to 

perfect an appeal in the manner and within the time limits 

provided by law. Absent such compliance, this Court does 

not acquire jurisdiction to entertain and determine an . -, * :A -:- -9 1 

appeal. Snyder v. Gwemjinqer (1979), Mont . - , 600 

P.2d 171, 172-73, 36 St.Rep. 1426, 1427. 

Bauer and Zunchich have moved under Rule 32, M.R.App.Civ.P., 

for damages to be awarded in their favor and against Price. 

We find this attempted appeal to have been taken in good 

faith although not timely. Consequently, we will not assess 

damages for a frivolous appeal. 

In passing, we note that Price could not be granted any 

relief even if we had jurisdiction to entertain this appeal. 

The District Court was not bound to establish the 

boundary line as shown by the Haiges survey. The conflicting 

testimony of Haiges and Fontana created a question of fact 

for the District Court, the trier of fact here, and it was 

within the District Court's province to resolve that issue 

against Haiges so long as its choice was supported by substantial 

credible evidence. Rule 52(a), M.R.Civ.P. 

The District Court was in a peculiarly advantageous 

position to judge the effect of the testimony of the witnesses. 
The surveyors gave the District Court first impressions by 

pointing out how a definite location of the proper boundary 

line could be determined. Before the District Court's 

presumptively correct judgment can be impeached, it must 

clearly be shown some fact was arbitrarily determined by the 

District Court. Stephens v. Hurly (1977), 172 Mont. 269, 

279, 563 P.2d 546, 552. This was not done here. 

Price having failed to file a timely notice of appeal 

from the decision of the District Court, Eleventh Judicial 

District, Flathead County, granting judgment in favor of 

Bauer and Zunchich: 

IT IS HEREBY ORDERED: 

1. Price's appeal is dismissed under Rule 5, M.R.App. 

Civ.P. 

2. This Court being satisfied from the record and the 

presentation of the appeal that the same was taken in good 

faith although not timely, the motion of Bauer and Zunchich 

for damages to be awarded in their favor under Rule 32, 

M.R.App.Civ.P., is denied. 

3. The Clerk is directed to mail a true copy of this 

opinion and order to counsel of record for all parties. 

We Concur: %&a,%@ Chid Justice