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 has moved 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 appellant mailed to the Clerk of the District 

Court and to counsel for respondent its motion for a new trial and 

for an extension of time to file a supporting brief. On June 11 

the District Court granted appellant until June 25 to file its 

supporting brief. 

On June 13 appellant mailed 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. The motion was submitted on appellant's brief. 

On July 20, the District Court denied appellant's motion 

for a new trial. On August 2 appellant mailed to the Clerk of the 

District Court and to counsel for respondent its notice of appeal. 

The notice of appeal was received and filed on August 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 counsel presented to the District Judge ex parte a 

motion for an order extending the time for filing the notice of 
appeal 30 days. The District Judge signed an order granting 

the extension, a second notice of appeal was filed with him, 

and a notation was made that it was filed with 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 counsel mailed 

respondent's motion to dismiss this appeal with supporting legal 

memorandum to appellant's counsel. The motion to dismiss was received and filed with this Court on August 15. According to the 

affidavit of appellant's counsel he did not receive the motion to 

dismiss until August 15. 

Briefs have been filed by counsel for both parties and 

the motion to dismiss has been submitted to us for decision. 

Appellant's motion for a new trial was timely filed. Rule 

59 (b) , M. R.Civ.P. This motion suspended the running of the time 

for filing the notice of appeal. Rule 5, M.R.App.Civ.P. The 

District Court's order extending the time for filing a supporting 

brief by necessary implication extended the time for its ruling 

on the motion. A fair reading of the record likewise indicates 

the motion was 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. See Rule 59(d), M.R.Civ.P. Otherwise, 

the District Court would be placed in the untenable position of 

having to rule on the motion for a new trial before appellant's 

brief was submitted or the motion would be deemed denied. This 

would be unconscionable. 

We hold that the time within which the District Court was 

required to rule on the Motion in this case commenced running on 
June 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. It was 

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 in which 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), 161 Mont. 343, 505 P.2d 1203, cited by 

respondent. There the District Court granted no extension of 

time for filing briefs 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 submission on briefs 

beyond 30 days. Rule 59(d), M.R.Civ.P. 

Respondent's motion to dismiss this appeal is denied. 

Chief Justice 

We concur: f-