No. 13007 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

HELEN C. McCORMICK, MICHAEL C. 

McCORMICK, WILLIAM R. McCORMICK, 

MARY KATHERINE CRIST, and CAROLE McCORMICK, 

Plaintiffs and Respondents, 

-vs - 

MAE McCORMICK, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record : 

For Appellant : 

Daniels and Mizner, Deer Lodge, Montana 

M. K. Daniels argued, Deer Lodge, Montana 

For Respondents: 

Burgess, Joyce, Prothero, Whelan and O'Leary, 

Butte, Montana 

Thomas F. Joyce argued, Butte, Montana 

Submitted: September 22, 1975 

Eh y , .- Decided: s+!,. 1 fE fk - 9% 

Filed: 'I' ' 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order of the district court, 

Powell County, granting an order dismissing appellant's appeal. 

This appeal arises from a partition action filed in the 

district court in 1971. Referees were appointed and the report 

of the referees was adopted and thereafter an order was made 

dividing the leases operated by the parties pursuant to a supplemental referee's report. An amended referee's report was filed 

on June 24, 1974 and adopted August 13, 1974 with a judgment 

accordingly signed and entered September 12, 1974. On November 

12, 1974, appellant's attorney filed an affidavit and motion for 

extension of time pursuant to Rule 5, M.R.App.Civ.P.,alleging 

excusable neglect. On November 12, 1974, Judge Boyd signed an 

order extending the time to file the appeal until November 12, 

1974. The notice of appeal was filed the same day. On December 

19, 1974, respondents filed a motion to dismiss the appeal alleging appellant's attorney's affidavit showed no excusable neglect 

on the part of counsel, but rather a deliberate decision not to 

appeal. A hearing was held on respondents' motion and the order 

dismissing the appeal was granted by Judge Boyd on January 9, 1975. 

The issues to be decided by this Court are: 

(1) Does the district court have jurisdiction to dismiss an appeal once the notice of appeal has been filed? 

(2) Was the affidavit of excusable neglect adequate to 

extend the time during which an appeal may be filed beyond the 

thirty day period provided for in Rule 5, M.R.App.Civ.P.? 

This Court has stated on more than one occasion that 

the filing of an appeal to this Court stays all proceedings in 

the district court, thereby removing jurisdiction from that court 

to proceed further in the matter. 

In Hansen v. Hansen, 129 Mont. 261, 264, 284 P.2d 1007, 
this Court said: 

"It is familiar law that an appeal to this court 

divests the district court of jurisdiction over 

the order or judgment from the appeal taken. Thereafter the lower court is without jurisdiction to 

proceed upon any matter embraced therein." (Citations 

omitted. ) 

In a more recent case, Polson v. Thomas, 138 Mont. 533, 

535, 357 P.2d 349, this Court stated: 

" * * * upon an appeal being taken, jurisdiction 

thereof passed from the district court to the 

supreme court, subject however to the right of 

the district court to correct clerical errors." 

Once the district court granted appellant an order 

allowing her to file a notice of appeal, the district court 

was without jurisdiction to grant a motion to dismiss said appeal. 

Upon the original filing of the notice of appeal, this Court 

was given sole jurisdiction to determine the propriety of the 

appeal. 

We hold that the granting of the order dismissing the 

appeal was in error as the district court was without jurisdiction to grant such an order. 

Now we must come to the question of whether the granting 

of an extension of time to appellant to file the notice of appeal 

was adequately supported by the doctrine of excusable neglect 

found in Rule 5, M.R.App.Civ.P. It states: 

"The time within which an appeal from a judgment 

or order must be taken shall be 30 days from the 

entry thereof * * *." 

The final paragraph of Rule 5 provides an exception to this rule: 

"Upon showing of excusable neglect, the district 

court may extend the time for filing the notice 

of appeal by any party for a period not to exceed 

30 days from the expiration of the original time 

prescribed by this Rule." 

The Advisory Committee Note to Rule 5, states, regarding excusable neglect: 

"The final paragraph permits an extension of the 
time for taking an appeal by the district court 

'upon a showing of excusable neglect.' In view 

of the ease with which an appeal may be taken-- 

the filing of a simple notice with the clerk of 

court--and the unlikelihood that there will not 

be actual notice of the entry of the judgment 

or order, it would be an extraordinary case 

which would justify an extension. But the district court should have the authority to extend 

time in extraordinary cases where injustice would 

otherwise result. * * *" 

"Excusable neglect" is not defined in Rule 5 nor in the 

advisory committee notes, thus the determination of what constitutes "excusable neglect" must be made on a case-by-case basis. 

The key guide to what was intended to constitute "excusable 

neglect" is the advisory committee note wording, "extraordinary 

cases where injustice would otherwise result." 

"Excusable neglect" must mean more than that the appellant 

changed his or her mind after the period allowed for filing an 

appeal had lapsed. The essential ingredient of "excusable neglect" 

is "neglect". The rule as stated in Brothers v. Brothers, 71 Mont. 

383, 

378,/230 P. 60, is: 

"The rule is concisely stated by this court in Nash 

v. Treat, 45 Mont. 250, Ann. Cas. 1913E, 751, 122 

P. 745: 'Each case must be determined upon its 

own facts; and, when the motion is made promptly 

and is supported by a showing which leaves the 

court in doubt, or upon which reasonable minds 

might reach different conclusions, the doubt should 

be resolved in favor of the motion.' No great abuse 

of discretion by the trial court in refusing to 

set aside a default need be shown to warrant a 

reversal, for the courts universally favor a trial 

on the merits. 

"No two cases will be found which present the same 

circumstances for consideration, for each depends 

upon its own facts. (Morse v. Callantine, 19 Mont. 

87, 93, 47 P. 635;Collier v. Fitzpatrick, 22 Mont. 

553, 57 P. 181; Farmers' Co-operative Assn. v. 

Roper, 57 Mont. 42, 188 P. 141; Pengelly v. Peeler, 

39 Mont. 26, 101 P. 147; Nash v. Treat, supra; In 

re Davis' Estate, 15 Mont. 347, 39 P. 292; Simpkins 

v. Simpkins, 14 Mont. 386, 43 Am.St.Rep. 641, 36 

P. 759), and therefore applications of this character 

are addressed to the legal discretion of the court 

and should be disposed of as substantial justice may 

seem to require. (Watson v. San Francisco & H. B. 

R. R. Co., 41Cal. 17.)" 

No doubt exists in this case, nor is any referred to in the 
affidavit for extension of time filed by appellant's attorney 

in support of the motion for extension of time. 

The affidavit states that appellant lives in semiseclusion and, due to dissatisfaction with her attorney's 

handling of the case, only communicated with her attorney 

through her daughter; that appellant was erroneously informed 

that she had six months to perfect her appeal but did not wish 

to appeal; and that appellant had now contacted her attorney 

and wished to appeal. The affidavit indicated a communication 

problem between appellant and her attorney, but no neglect on 

the part of her attorney. From the affidavit it appears clear 

that appellant decided not to appeal and then, after the time 

for filing a notice of appeal had lapsed, decided she did want 

to appeal. This change of mind is not one of those extraordinary 

cases for which an extension of time to file an appeal is allowed 

under Rule 5. 

The district court should not have granted appellant's 

motion for extension of time to file her appeal. 

Due to the length of time which this matter has proceeded in various stages of litigation, we will not remand to the 

district court for further action. Therefore, we declare the 

judgment of partition signed and entered in the district court 

on September 12, 1974 to be final and binding on all the parties 

to this action. 

We concur: 

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'Justices