No. 12637 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974



### REX F. BEACH,

DESTINATION Plaintiff and
ENTERPRISES, INC., Appellant,

Defendant and Respondent.
Appeal from: District Court of the Eighteenth Judicial District, HonorableW. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Allen L. McAlear argued, Bozeman, Montana ForRespondent

### : Berg, Angel, Andriolo and Morgan, Bozeman, Montana Brown and Gilbert, Bozeman, Montana Gene I. Brown argued, Bozeman, Montana

Submitted: September 9, 1974 ~ecided : 

### qct

## 4 1934 Filed: 

# xtt I974Mr. JusticeWesley Castles delivered the Opinion of the Court. This is an appeal froman order of the eighteenth judicial district, in and for Gallatin County,denying appellant's motion for reinstatement. The facts of this appeal involve two lawsuits filed at approximately the same time. The first suit, titled ~estination Enterprisesv. Beach, Gallatin County causeNo. 19073, was filed
on August 5, 1970. This suitwas to establish title to the land in question as well as for money damages for reasonable rental of the realproperty and for an injunction. Beach was represented in this action by the law firm of Morrow, Nash & Sedivy of Bozeman. The present suit, fromwhich this appeal arises, Beach v. Destination Enterprises, causeNo. 19079,was filed on August 10, 1970. This suit was also to establish title to the real property but was also for money damages for certain labor, expenses and certain promissory notes. Although the two cases duplicated each other, causeNo. 19079was for additional claims formoney due. Beach was represented in this action by the law firms of St. Clair, St. Clair, Hiller & Benjamin of Idaho Falls, Idaho,and the law firm of Berg,Angel, Andriolo & Morgan of Bozeman as local counsel. An answer and cross-claim was filed in cause No. 19073. The cross-claimwas for title to the real property or in the alternative, for a money judgment formoney expended on the real property. In causeNo. 19079, summons was issued and served on Destination Enterprises onAugust 11, 1970. Destination appeared by its attorney and filed a motion to dismiss on September 23, 1970. On October 5, 1970, themotion to dismisswas overruled and Destinationwas allowed twenty days within which to answer or furtherplea. The trial of causeNo. 19073 was held on March 29, 1972.Beach was present in open court together with his attorney in causeNo. 19073,James H. Morrow. At the trial, in open court, the attorney for Destinationmoved to dismiss causeNo. 19079 for failure to prosecute. Thismotion was granted without objection fromBeach or Mr. Morrow. All parties and the court relied on the fact that causeNo. 19079was abandoned by Beach. He elected to pursue cause No. 19073. A minute entry of the dismissalwas sent to the attorneys of record in cause No. 19079 on March 29, 1972. The next action on causeNo. 19079 was on August 16, 1973, when Allen L. McAlear of Bozeman was added as counsel of record for Beach. On August 21, 1973,a motion for reinstatementof the causewas filed. This motion was denied on September 6,1973. This appeal is taken from the order denying the motion for reinstatement. Beach has presented four issues to this Court on appeal. We resolve this appeal, however,by holding that a timely appeal was not taken from the order dismissing the case and, as such, this Court iswithout jurisdiction to hear the appellant's case on themerits. An analysis of the appellant's brief clearly shows that his objection is to the dismissal of the case. The appellant's legalposition is that the case should not have been dismissed for the various reasons stated in his brief. Yet the order dismissing the case stood unchallenged for over seventeenmonths. The order granting themotion to dismisswas an appealable order. In the case of Prentice Lumber Company, Inc. v. Hukill, 161Mont. 8, 504 P.2d 277, 279, 29 St.Rep. 1029,where
amotion to dismisswas granted, but judgmentwas not entered pursuant to the order, this Court stated: 

## " * * * Accordingly,

### we hold that an order dismissing a complaint and denying leave to amendis equivalent to a final judgment for purposes of appeal." Appellant had a right to appeal the order dismissing his lawsuit. That rightwas lost through inaction. He cannot now revive his right to an appeal by his motion for reinstatement. It should be noted that this was not an involuntary dismissalgranted without notice. The motion for dismissal was made in open court during the trial of the companion suit. Beach and his attorney in the companion suit were present. The order was granted without objection. Notice of the order of dismissal
was immediately given to the attorneysof record in this suit. The facts support the conclusion that thiswas done aspart of the strategy in the trial of the companion case and that there was an intentional abandonment of this lawsuit. This conclusion is supported by the fact that it was seventeen months later, when a new attorney entered the case,before any action was taken to avoid the dismissal. The appeal is dismissed.



## u Justice We concur:

Justices I