No. 14927 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

JOHN R. BRITTON, Plaintiff and Respondent,

BURLINGTON NORTHERN INC., a corporation, Defendant and Appellant.
Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Fennessy, Crocker,Harman and Bostock,Libby, Montana Kurt W. Kroschel, Billings, Montana For Respondent: Hoyt, Trieweiler, Lewis & Regnier, Whitefish, Montana

Submitted: November 2, 1979 Decided:j, ''!Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Respondent hasmoved to dismiss this appeal on the ground that this Court lacks jurisdiction thereof because appellant did not file its notice of appeal within the time permitted by Rule 5,M.R.App.Civ.P. Respondent John R. Britton filed an action for damages against appellant Burlington Northern, Inc. in the District Court of Lincoln County,Montana. On May 25, 1979, the jury returned a verdict of $140,000 in favor of respondent. On May 31 judgment
was entered thereon. On June 1 the Clerk of the District Court mailed notice of entry of this judgment to counsel for both parties. On June 6 appellantmailed to the Clerk of the District Court and to counsel for respondent itsmotion for a new trial and for an extension of time to file a supporting brief. On June 11 the District Court granted appellantuntil June 25 to file its supporting brief. On June 13 appellantmailed to the Clerk of the District Court and to counsel for respondent its amended motion for a new trial. On June 25 appellant filed and served its supporting brief. Neither the original nor the amended notice for a new trial contained a notice of hearing. No hearing has ever been held. Themotion was submitted on appellant'sbrief. On July 20, the District Court denied appellant'smotion for a new trial. On August 2 appellantmailed to the Clerk of the District Court and to counsel for respondent its notice of appeal. The notice of appealwas received and filed onAugust 3 by the Clerk of the District Court. On August 15 appellant's counsel flew from Billings to Libby, contacted the District Judge at his home that evening. Appellant's counselpresented to the District Judge ex parte a motion for an order extending the time for filing the notice ofappeal 30 days. The District Judge signed an order granting the extension,a second notice of appealwas filed with him, and a notationwas made that itwas filedwith him at his home at 10:OO p.m. Affidavits filed by counsel for the respective parties contain conflicting facts concerning the attempts made to notify counsel for respondent of this contemplated activity, In the meantime on August 8, respondent's counselmailed respondent's motion to dismiss this appeal with supporting legal memorandum to appellant's counsel. Themotion to dismiss was received and filed with this Court onAugust 15. According to the affidavit of appellant's counselhe did not receive themotion to dismiss untilAugust 15. Briefs have been filed by counsel for both parties and themotion to dismiss has been submitted to us for decision. Appellant's motion for a new trialwas timely filed. Rule 59(b)

## ,M.R.Civ.P. Thismotion suspended the running of the time for filing the notice of appeal. Rule 5,M.R.App.Civ.P. The DistrictCourt's order extending the time for filing a supporting brief by necessary implication extended the time for its ruling
on themotion. A fair reading of the record likewise indicates the motionwas to be submitted on the brief. Accordingly, the 10 day period in which such motion had to be decided or deemed denied did not commence running on June 6 and expire on June 16,notwithstanding the fact that the motion was not noticed for hearing
nor a hearing held thereon. SeeRule 59(d), M.R.Civ.P. Otherwise, the District Courtwould be placed in the untenable position of having to rule on themotion for a new trial before appellant's brief was submitted or themotion would be deemed denied. This would be unconscionable. We hold that the timewithin which the DistrictCourt was required to rule on the Motion in this case commenced running onJune 25 when appellant's brief was filed. The 15 day period for its ruling expired on July 5. Rule 59(d), M.R.Civ.P. Itwas automatically deemed denied on that date and its order of denial
on July 20 was null and void and of no force or effect. Rule 59(d), M.R.Civ.P. Appellant had 30 days thereafter inwhich to file its notice of appeal. Rule 5,M.R.App.Civ.P. The notice of appeal
was filed August 3 within such 30 day period. This invested this Court with jurisdiction to hear this appeal. This case is distinguishable from Leitheiser v. Montana State Prison (1973),161Mont. 343, 505 P.2d 1203,cited by respondent. There the District Court granted no extension of time for filingbriefs and thus extending the time for its decision. The contrary occurred here. In any event the District Court cannot extend the period for hearing or submissionon briefs beyond 30 days. Rule 59(d), M.R.Civ.P. Respondent'smotion to dismiss this appeal isdenied.

Chief Justice We concur: f-