No. 80-122 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

PIONEER CONCRETE & FUEL, 

INC., a corporation, 

Plaintiff and Respondent, 

APEX CONSTRUCTION, INC., 

a corporation; and UNITED 

PACIFIC INSURANCE COMPANY, 

a corporation, 

Defendants, Third-Party 

Plaintiffs and Appellant, 

DARRELL BIRDSBILL, d/b/a 

BIRDSBILL CEMENT CONTRACTOR, 

Third-Party Defendant. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Gough, Shanahan, Johnson and Waterman, Helena, Montana 

For Respondent: 

Corette, Smith, Dean, Pohlman and Allen, Butte, Montana 

Filed: 

Submitted on Briefs: October 9, 1980 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

United Pacific Insurance Company appeals from an order 

directing the entry of judgment in favor of Pioneer Concrete & 

Fuel, Inc. The Silver Bow County District Court's order left a 

third-party complaint in the same action pending. We find the 

District Court's order nonappealable within Rule 1, M.R.App. 

Civ.P., and Rule 54(b), M.R.Civ.P., and dismiss this appeal 

without prejudice. 

Plaintiff-respondent Pioneer Concrete & Fuel Inc., 

(Pioneer) brought an action against Apex Construction, Inc. 

(Apex) and United Pacific Insurance Co. (United pacific) to 

collect an account. Apex and United Pacific in turn filed a 

third-party complaint against Darrell Birdsbill. Third-party 

plaintiffs obtained a default judgment against Birdsbill on 

August 27, 1979. A trial was held on the original complaint on 

October 30, 1979. Prior to any determination on the original 

complaint by the Silver Bow County District Court, Birdsbill 

moved to have the default judgment set aside. On December 28, 

1979, a hearing was held on Birdsbill's motion and the District 

Court took the matter under advisement. The District Court 

entered its findings of fact, conclusions of law and judgment in 

the original complaint on January 8, 1980. The court found 

defendant Apex liable on its account with Pioneer and found that 

United Pacific was liable for any indebtedness of Apex under subcontract bonds issued to Apex. On January 18, 1980, the District 

Court entered its order setting aside the default judgment which 

had previously been entered against third-party defendant Darrell 

Birdsbill. 

Rule 54(b), M.R.Civ.P., provides: 

"Judgment upon multiple claims or involving 

multiple parties. When multipl~claims for 

relief or multiple parties are involved in an 

action, the court may direct the entry of a 

final judgment as to one or more but fewer than 

all of the claims or parties only upon an 

express determination that there is no just 
reason for delay and upon an express direction 

for the entry of judgment. In the absence of 

such determination and direction, any order or 

other form of decision, however designated, 

which adjudicates less than all the claims or 

the rights and liabilities of less than all the 

parties shall not terminate the action as to any 

of the claims or parties, and the order or other 

form of decision is subject to revision at any 

time before the entry of judgment adjudicating 

all the claims and the rights and liabilities of 

all the parties." 

Rule 14, M.R.Civ.P.,expressly provides that an entry of 

judgment upon either the original claim or the third-party claim 

must comply with Rule 54(b), M.R.Civ.P. 

In the present case, the District Court did not make an 

"express determination that there is no just reason for delay." 

Consequently, the order was interlocutory in nature and not 

appealable under Rule 1, M.R.App.Civ.P. See Roy v. Neibauer 

( 1980) 1 Mon t . , 610 P.2d 1185, 37 St.Rep. 897, and cases 

cited therein. 

Professor Moore summarizes the issue as follows: 

"If a third-party claim becomes part of the 

action, the action then involves multiple 

claims, as well as multiple parties, even though 

it did not prior to the impleader; and an adjudication of one or more but fewer than all of 

the claims, or of the interest of one or more 

but fewer than all of the parties, is interlocutory where the district court does not execute 

its certificate. Whether to execute a certi£ icate following an adjudication as to one or 

more but fewer than all of the claims or parties 

rests in the sound discretion of the district 

court. 

"In brief, then, once a third-party has been 

impleaded the act ion involves multiple claims 

and multiple parties; a third-party claim is one 

of the claims for relief mentioned in 54(b); and 

an adjudication as to one or more but fewer than 

all of the multiple claims or parties is 

interlocutory, absent a certificate, and has 

finality when the certificate is executed ." 6 

Mooref s Federal Practice I[ 54.36. 

Although a slight difference exists between the Montana 

Rules of Civil Procedure and the Federal Rules of Civil 

Procedure, the approach to be taken is the same. Rule 54(b), 

Fed .R.Civ. P., expressly provides that it applies to third party 
claims and there is no reference in Rule 14, Fed.R.Civ.P., to Rule 

54(b). On the other hand, Rule 54(b), M.R.Civ.P., merely provides 

that it applies to "multiple claims" or "multiple parties," and 

Rule 14, M.R.Civ.P., states that any judgment entered in an action 

involving a third-party claim must be in "accordance with the 

provisions of Rule 54 (b) ." 

We conclude that the attempted appeal is premature and it 

is dismissed without prejudice. 

..................................... v 

Chief Justice 

We concur: 

I