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: DistrictCourtof the Second Judicial District, 

### In and for the Countyof Silver Bow, HonorableArnold Olsen, Judge presiding. Counsel of Record: ForAppellants: Gough, Shanahan, Johnson and Waterman, Helena, Montana ForRespondent: Corette, Smith, Dean, Pohlman and Allen, Butte, Montana

Filed: Submittedon Briefs: October 9, 1980Mr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. United Pacific Insurance Company appeals from an order directing the entryof judgment infavor of Pioneer Concrete & Fuel, Inc. The SilverBow County District Court's order lefta third-party complaint in the 

### same actionpending. 

### We find the District Court's order nonappealable withinRule 1, M.R.App. Civ.P., and Rule 54(b), M.R.Civ.P., and dismiss thisappeal without prejudice. Plaintiff-respondent Pioneer Concrete & Fuel Inc., (Pioneer)brought an action againstApex Construction, Inc. (Apex) and United Pacific Insurance Co. (United pacific) 

### to collect an account. Apex and United Pacific inturn 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 SilverBow County District Court, Birdsbill moved tohave 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 findingsof fact, conclusions of 

### law and judgment in the original complaint on January 8, 1980. The court found defendantApex liable on its account with Pioneer and found that United Pacific was liable for any indebtedness of Apex under subcontract bonds issued 

### toApex. 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 multipleparties. When multipl~claims for relief ormultiple parties 

### are involved inan action, the court may direct the entryof a finaljudgment as toone 

### or more but fewer than allof the 

### claims 

### or parties only upon an express determination that there 

### is no justreason for delay and upon an express direction forthe entryof 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 entryof judgment adjudicating allthe claims and the rights and liabilities of allthe parties." Rule 14, M.R.Civ.P.,expressly provides that an entryof judgment upon either the original 

### claim 

### or the third-party claim must comply with Rule 54(b), M.R.Civ.P. Inthe present 

### case, the District Court did not make an "express determination that there is no just reason for delay." Consequently, the order was interlocutory innature and not appealable under Rule 1, M.R.App.Civ.P. SeeRoy v. Neibauer (1980)1 Mont

# . , 610 P.2d 1185, 37 St.Rep. 897, and cases cited therein. ProfessorMoore 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 allof the claims, 

### or of the interestof one ormore but fewer than 

### allof the parties, 

### is interlocutorywhere the district court does not execute its certificate. Whether toexecute a 

### certi£ icatefollowing an adjudication as 

### to one 

### or more but fewer than 

### allof the 

### claims orparties 

### rests inthe sound discretion of the district court.

"In brief, then, once 

### a third-party has been impleaded the action involves multiple 

### claims and multiple parties; a third-party 

### claim 

### is one of the claims for relief mentioned in54(b); and an adjudication as to one or more but fewer than allof the multiple 

### claims or parties is interlocutory, absent a certificate, and has finalitywhen the certificate is executed

# ." 6 Moorefs Federal Practice 

### I[ 54.36. Although a slightdifference existsbetween 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., expresslyprovides that it applies 

### to third partyclaims and there is no reference inRule 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 inan action involving a third-party claimmust 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