No. 13218 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

LEWISTOWN PROPANE COMPANY, 

A Corporation, 

Plaintiff and Appellant, 

UTILITY BUILDERS INC., A 

Corporation and CITY OF LEWISTOWN, 

A Montana Municipa 1 Corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable B. W, Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Johnson and Foster, Lewistown, Montana 

Robert L, Johnson argued, Lewistown, Montana 

For Respondent: 

Smith, Emmons, Baillie and Walsh, Great Falls, 

Montana 

William L. Baillie argued and James R. Walsh, argued, 

Great Falls, Montana 

Alexander, Kuenning, Miller and Ugrin, Great Falls, 

Montana 

Edward C. Alexander argued, Great Falls, Montana 

Submitted: May 24, 1976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

In this cause a motion to dismiss the appeal was filed 

by respondents on the ground that appellant failed to timely file 

notice of appeal as required by statute. 

The record discloses: On June 12, 1975, the district 

court of Fergus County, Hon. Bernard W. Thomas, Judge presiding, 

entered judgment in favor of respondents, Utility Builders, Inc. 

and the City of Lewistown. On July 13, 1975, notice of entry 

of judgment was mailed to plaintiff and appellant, Lewistown 

Propane Company. On June 19, 1975, appellant submitted a proposed 

motion for an additional ten days to file "* * * post trial motions 

herein and in which to serve and file 9; * * motion to retax costs 

herein." The district court granted this motion on June 20, 1975, 

subject to Rule 6(b), M.R.Civ.P. 

On July 7, 1975, appellant served notice by mail of its 

motion for new trial. Respondents countered by filing on July 11, 

1975, motions to strike on the basis the motion for new trial 

was untimely, or in the alternative, to continue hearing on 

appellant's motion. On July 23, appellant filed two motions: 

(1) under Rule 60 (b) (1) and Rule 60 (b) (6), M.R.Civ.P., for 

relief from the effect of failure to timely file and serve motion 

for new trial; (2) under Rule 5, M.R.App.Civ.P., for an extension 

of time in which to file notice of appeal. The district court 

granted appellant's motion for relief under Rule 60 (b), M.R.Civ.P., 

on August 11, 1975, denying on the merits the motion for new 

trial. Appellant's second motion for an extension of time in which 

to file notice of appeal was deemed moot and not ruled upon. On 

August 13, 1975, appellant filed notice of appeal. 
The only issue presented is whether appellant filed 

timely notice of appeal. 

The issue is clearly controlled by Rule 5, M.R.App.Civ.P., 

which states in pertinent part : 

"The time within which an appeal from a judgment 

or an order must be taken shall be 30 days from 

the entry thereof, except that in cases where service 

of notice of entry of judgment is required by Rule 

77(d) of the Montana Rules of Civil Procedure the 

time shall be 30 days from the service of notice of 

entry of judgment, but if the State of Montana, or any 

political subdivision thereof, or an officer or agency 

thereof is a party the notice of appeal shall be 

filed within 60 days from the entry of the judgment 

or order or 60 days from the service of notice of the 

entry of judgment. * JC *." (Emphasis supplied.) 

no 

There can beldoubt one of the respondents, the City of Lewistown, a Montana municipal corporation, is a political subdivision 

of the state of Montana. Article XI, 1972 Montana Constitution; 

Dietrich v. City of Deer Lodge, 124 Mont. 8, 218 P.2d 708; State 

ex rel. Great Falls Housing Authority v. City of Great Falls, 110 

Mont. 318, 100 P.2d 915. 

However, respondents contend that the sixty day provision 

for filing notice of appeal, as contemplated by Rule 5, M.R.App. 

Civ. P., is meant to apply only to situations where the state, 

a political subdivision thereof, or an officer or agency thereof 

is the party appealing. 

We do not construe Rule 5 so narrowly. Nothing is said in 

Rule 5 as to what position the state, its political subdivisions, 

agencies, or officers must occupy on appeal for the sixty day rule 

to apply. All that is required is that some party to the action 

be a state officer, state agency, the state itself or a political 

subdivision thereof. 
Therefore, as long as this requirement is satisfied, any 

party wishing to appeal the judgment or order in that action has 

sixty days in which to file notice of appeal. Believing Rule 5 

to be clear on its face, we do not feel compelled to cite any 

further legal authority for the position that appellant in the 

instant case had sixty days to file notice of appeal. 

The question then becomes whether appellant acted within 

the prescribed sixty day period. Notice of entry of judgment was 

mailed by respondents on June 13, 1975. For purposes of calculating 

the sixty days, the notice of entry of judgment became effective on 

June 16, 1975, pursuant to Rule 6(e), M.R.Civ.P. Appellant filed 

notice of appeal on August 13, 1975, two days before the sixty day 

time period expired. Thus notice of appeal was timely filed. 

The motion of respondents to dismiss appeal is denied. 

We Concur: 

Hon. Gordon Bennett, ~ismct 

Judge, sitting for Chief Justice 

James T. Harrison.