No. 13218 INTHE 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 Municipa1Corporation, 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 WilliamL. 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 appealwas 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 judgmentwas 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 inwhich 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 inwhich to file notice of appeal. The district court granted appellant's motion for relief under Rule 60 (b), M.R.Civ.P.,
onAugust 11, 1975,denying on themerits themotion for new trial. Appellant's secondmotion for an extension of time in which to file notice of appealwas deemed moot and not ruled upon. On August 13, 1975,appellant filed notice of appeal.The only issuepresented 

### iswhether appellant filed timely notice of appeal. The issue is clearly controlled by Rule 5, M.R.App.Civ.P., which states inpertinent part: "The time within which an appeal from a judgment or an order must be taken shallbe 30 days from the entry thereof, except that in cases where service of notice of entry of judgment isrequired by Rule 77(d) of theMontana Rules of Civil Procedure the time shallbe 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 shallbe filedwithin 60 days from the entry of thejudgment 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. ArticleXI, 1972Montana Constitution; Dietrich v. City of Deer Lodge, 124Mont. 8, 218 P.2d 708; State
ex rel. Great Falls Housing Authority v. City of Great Falls, 110 Mont. 318, 100P.2d 915. However, respondents contend that the sixtyday provision for filingnotice of appeal, as contemplated by Rule 5, M.R.App. Civ. P., 

### ismeant to apply only to situationswhere the state,
a political subdivision thereof, or an officer or agency thereof isthe party appealing. 

### We do not construe Rule 

### 5 sonarrowly. Nothing 

### is said in Rule 5 as towhat position the state, 

### itspolitical subdivisions, agencies, or officers must occupy on appeal for the sixtyday rule to apply. Allthat isrequired isthat some party to the action be a stateofficer, stateagency, the stateitself ora political subdivision thereof.Therefore, 

### as long as this requirement issatisfied, any partywishing to appeal thejudgment or order inthat action has sixty days inwhich to filenotice of appeal. Believing Rule 

### 5 tobe clear on its face, we do not feel compelled to citeany further legal authority for the position that appellant in the instant case had sixtydays to filenotice of appeal. The question then becomes whether appellant acted within the prescribed sixty day period. Notice of entryof judgment was mailed by respondents on June 13, 1975. For purposes of calculating the sixtydays, the notice of entry of judgment became effective on June 16, 1975, pursuant toRule 6(e), M.R.Civ.P. Appellant filed notice of appeal on August 13, 1975, two days before the sixtyday 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, sittingfor Chief Justice James T. Harrison.