No. 84-442 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

CITY OF BILLINGS, STATE OF 

MONTANA, 

Plaintiff and Respondent, 

-vsJOHNNY SEIFFERT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry L. Seiffert, Billings, Montana 

For Respondent : 

Bonnie J. Sutherland, Asst. City Attorney, Billings, 

Montana 

Submitted on ~riefs: Dec. 20, 1984 

Decided: April 8, 1985 

Filed: 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Johnny Seiffert appeals from the dismissal by 

the Yellowstone County District Court of his appeal from 

Billings City Court. The District Court dismissed the appeal 

on grounds that the defendant failed to see that the City 

Court record was transferred within the statutory period. We 

vacate a.nd remand for further proceedings. 

The issue is whether the District Court erred in dismissing defendant's appeal from the City Court to the District Court because of the defendant's failure to secure 

transmission of the record to the District Court within the 

statutory 30-day period. 

On May 10, 1984, the defendant was convicted in Billings 

City Court of the offense of driving while under the influence of alcohol. On the same date, defendant forwarded his 

notice of appeal to the City Court clerk. The entire record 

of the City Court proceedings was filed with the District 

Court on June 14, 1984, 35 days after the judgment was entered and the notice of appeal filed. Upon the motion of the 

City, the District Court dismissed the defendant's appeal on 

September 12, 1984, on the ground that the defendant failed 

to perfect his appeal by actually seeing that the records of 

the City Court were in transit within the 30-day statutory 

period. 

The controlling statute on appeal from the City Court is 

§ 46-17-311, MCA, which in pertinent part provides as 

follows : 

"(3) Within 30 days, the entire record of the 

justice's or city court proceedings must be transferred to the district court or the appeal must be 

dismissed. It is the duty of the defendant to 

perfect the appeal." 
This section must be applied in this case consistent with the 

holdings of this Court in State v. Main (Mont. 1981), 623 

P.2d 1382, 38 St.Rep. 205, and State v. Dubray (Mont. 1982), 

In Main, the defendant's only request for transmission 

of the record was made by defense counsel after expiration of 

the 30-day statutory period. This Court noted that the 

defendant alleged but failed to substantiate a telephone call 

to the City Court requesting transmission of the record 

within the 30-day statutory period. Main, 623 P.2d at 1383, 

In Dubrav. this Court held that where the defendant 

requested transmission of the record within the 30-day statutory period and fulfilled the other requirements of 

5 46-17-311, MCA, the appeal had been perfected. Dubray, 654 

P.2d at 971-72, 39 St.Rep. at 2144-45. The distinction 

between Main and Dubray lies in the defendant's request or 

failure to request transmission of the record within the 

30-day statutory period. Dubray, 654 P.2d at 972, 39 St.Rep. 

at 2144-45 (distinguishing Main based upon failure to request 

transmission of the record before expiration of the 30-day 

period) . 

Here, the District Court made no finding as to whether 

defense counsel requested transmission of the record within 

the 30-day statutory period. The District Court's order 

dismissing the appeal noted the parties' allegations on this 

factual point and stated that the parties dispute whether 

defense counsel requested transmission of the record within 

the 30-day period. The District Court concluded that regardless of when defendant initially requested transmission of 

the record, he had failed to perfect the appeal because he 

failed to see that the record was actually transferred. In 
light of Main and Dubray, this was an erroneous legal 

conclusion. 

The record shows that defense counsel alleges he called 

the City Court regarding the appeal on May 24, 1980, and was 

"assured that there was no problem with the appeal." The 

record also shows that j.n a letter to the City Court dated 

June 4, 1984, within the 30-day statutory period, defense 

counsel asked that he be advised whether or not the appeal 

had been perfected. However, this letter did not request or 

mention transmission of the record. A second letter, dated 

June 12, 1.984, after expiration of the 30-day period, again 

asks that defense counsel be advised whether the appeal has 

been perfected. The letter also states, "I am assuming that 

[the appeal] has been perfected as the notice has been filed 

some time ago." The City Court clerk stated in her 

affidavit that defense counsel did not appear personally to 

request the record for transmission to the District Court nor 

inform her of the 30-day time period for transmission of the 

record. The record is unclear whether defense counsel 

actually requested transmission of the record. Resolution of 

this factual issue is necessary to a determination of whether 

defendant's appeal was perfected under § 46-17-311, MCA, as 

required by Main and Dubray. 

We vacate the District Court's order dismissing defendant's appeal and remand for further proceedings consistent 

with this opinion.