No. 88-159 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM JO ARTHUR, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Bozeman, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana; Jennifer Bordy, Deputy County Attorney 

Submitted on Briefs: Aug. 4, 1988 

Decided: September 15, 1988 

Filed.: SEP I 5 1988 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

William Jo Arthur, the defendant, was convicted of 

driving under the influence of alcohol in Gallatin County 

Justice Court. The District Court of the Eighteenth Judicial 

District, Gallatin County, dismissed defendant's appeal from 

Justice Court. Defendant appeals. We affirm. 

The sole issue raised on appeal is whether 5 46-17-311, 

MCA, requires an appellant from Justice Court to District 

Court to file physically his notice of appeal within 10 days 

after judgment. 

On November 18, 1987, William Jo Arthur was found guilty 

of driving under the influence of alcohol and was sentenced 

in open court. The 10 day time limit for giving notice of 

appeal from Justice Court to District Court would normally 

have expired on November 28, 1987. However, because November 

28 fell on a Saturday, the time limit was extended to the 

following "working" day, Monday, November 30, 1987, as 

provided by S 1-1-307, MCA. Defendant therefore had two 

additional days in which to give notice of his intent to 

appeal. 

Counsel for the defendant executed the notice of appeal 

on November 27, 1987, and mailed it on November 30, 1987, the 

final day on which notice could be given. The notice was 

received and filed in Justice Court on December 1, 1987. The 

District Court dismissed the appeal on the ground that the 

notice was not filed within the 10 day limit prescribed by 5 

46-17-311, MCA. 

The right to appeal a Justice Court criminal conviction 

to district court is given by 46-17-311, MCA, which 

provides in part: 
(1) All cases on appeal from justices' or city 

courts must be tried anew in the district court 

. . . 

(2) A party may appeal to the district court by 

giving written notice of his intention to appeal 

within 10 days after judgment, except that the 

state may only appeal in the cases provided for in 

46-20-103. 

This statute is the only method by which a district 

court can acquire jurisdiction over an appeal from justice 

court. Because the right to appeal is given exclusively by 

statute, we have consistently held that strict compliance 

with 5 46-17-311, MCA, is necessary to perfect an appeal. 

State v. Hartford (Mont. 1987), 741 P.2d 1337, 1338, 44 

St.Rep. 1500, 1501; State v. Province (Mont. 1987), 735 P.2d 

1128, 1129, 44 St.Rep. 775, 776. 

Strict compliance with the statute requires that notice 

be given in a timely manner. Hartford, 741 P.2d at 1338, 44 

St.Rep at 1501. We have previously held that in Justice 

Court the time for appeal runs from the date of oral 

pronouncement of judgment in open court. State v. Mortenson 

(1978) , 175 Mont. 403, 405, 574 P. 2d 581, 582. The issue 

that arises on this appeal is whether "giving written notice" 

means simply mailing the notice of appeal within the 

statutorily prescribed 10 day limitation period or whether it 

requires that notice must be actually received by the court 

within that period. We hold that written notice of a party's 

intention to appeal a criminal conviction from Justice Court 

to District Court must be physically filed with the Justice 

Court within 10 days after judgment. 

This holding is directly in line with a previous case 

interpreting the notice provision of the Justice Court 

criminal appeals statute. In Mortenson, we construed § 

95-2009, R.C.M. (1947) , the predecessor of 5 46-17-311, MCA. 
Like the present statute, S 95-2009, R.C.M. (19471, spoke 

only of "giving written notice" of intent to appeal. It did 

not .mention actual filing. Even so, we concluded that 

"written notice of appeal must be filed with the Justice 

Court within the ten day period. " Mortenson, 175 Mont. at 

405, 574 P.2d at 582. (Emphasis added.) We continued, 

In the absence of a specific provision regarding 

Justice Courts this language of section 95-2413, 

R.C.M. 1947, is applicable: 

(a) Filing. Papers required or permitted to be 

filed must be placed in custody of the clerk within 

the time fixed for filing. Filing may be 

accomplished by mail addressed to the clerk, - but 

filing shall not -- be timely unless the papers - are 

actually received within -- the time fixed for filing. 

Mortenson, 175 Mont. at 405, 574 P.2d at 582. 

Section 95-2413, R.C.M. (1947), quoted above, later 

became § 46-20-502, MCA, which was superseded by amendments 

to the Montana Rules of Appellate Procedure by Supreme Court 

Order of June 16, 1986, effective January 1, 1987. 

Throughout these changes, however, the wording of the statute 

remained the same, and the pertinent part of Rule 20(a), 

M.R.App.P., is identical to the 1947 statute cited in 

Mortenson. The only difference between Rule 20(a) and f 

95-2413, R.C.M. (1947) is that the latter statute governed 

criminal appeals from all Montana courts, while the Rules of 

Appellate Procedure explicitly cover criminal appeals from 

the District Courts to the Supreme Court only. Rule 1 (a) , 

M.R.App.P. Despite this change, the reasoning of Mortenson 

is as applicable today as it was in 1978, and the Rules of 

Appellate Procedure may be applied to clarify the language of 

the Justice Court criminal appeals statute. 
Our determination that giving written notice means 

actual filing is consistent with recent cases construing S 

46-17-311, MCA. In State v. Tecca (Mont. 1986), 713 P.2d 

541, 43 St.Rep. 180, the defendant filed a notice of appeal 

five days after sentencing. The notice was defective, 

however, because it improperly stated that the appeal was to 

Justice Court rather than District Court. Defendant then 

filed a corrected notice of appeal. We agreed with the 

District Court that the corrected notice, filed 11 working 

days after judgment, was not timely. We overturned the 

District Court's dismissal of the appeal, however, because 

the Justice Court had actually received notice of appeal 

within the 10-day limitation period. -- See also, Hartford, 741 

P.2d at 1338, 44 St.Rep. at 1501; and Province, 735 P.2d at 

Our position is further supported by our decision in 

Schaffer v. Champion Home Builders Co. (Mont. 1987), 747 P.2d 

872, 44 St.Rep. 2196. In that case, a civil wrongful death 

action, plaintiff had mailed his complaint three working days 

prior to the expiration of the statute of limitations. The 

complaint was not received by the court until one day after 

the limitation period had expired. We concluded that filing 

is not the same as mailing. "Unlike service by mail, which 

is complete on the date of mailing, filing by mail is not 

complete until the pleading is placed in the custody of the 

clerk of court." Schaffer, 747 P.2d at 874, 44 St.Rep. at 

2198. 

Our holding that "giving written notice" requires 

physical filing with the court furthers the policy of the 

limitation period by insuring that appeals from Justice Court 

judgments are undertaken in a timely manner. The duty of the 

appellant is to make certain that written notice of appeal is 
actually received by the clerk of the Justice Court within 10 

days after oral pronouncement of judgment. 

Although William Jo Arthur mailed his notice of appeal 

within the time frame prescribed by the appeals statute, the 

Justice Court did not receive the notice until one day after 

the limitation period had expired. Hence, Arthur did not 

meet the dictates of § 46-17-311, MCA. 

The Distri.ct Court's order dismissing the appeal is 

affirmed. 

We concur: 

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