No. 84-111 

IN THE SUPREME COUR!il OF THE STATE OF MONTANA 

1984 

LEONARD AND BONNIE BOLES, 

Plaintiffs and Appellants, 

-vsVERA LER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Lloyd E. Hartford, Billings, Montana 

For Respondent : 

Koch & Carter, Sidney, Montana 

Submitted on Briefs: July 19, 1984 

Decided: November 14, 1984 

-.-- 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Plaintiffs Leonard and Bonnie Roles, as the contract 

purchasers of land, appeal an order of the Richland County 

District Court 9ranting summary judgment to the contract 

seller of the land, Vera Ler. The plaintiffs claim issues of 

fact remain on the question of whether the seller properly 

invoked the forfeiture provisions of the contract. The 

plaintiffs also claim the court erred in awarding attorney 

fees to the seller based on the seller's counterclaim relying 

on a separate security agreement signed by the purchasers. 

Because the appeal- is not properly before us at this time, we 

must remand for further proceedings. This Court does not 

have before us an appealable order. It is a non-certified 

partial summary judgment. 

On October 19, 1983, the trial court entered judgment 

against the purchasers on the summary judgment question, and 

further ordered the seller was entitled to attorney fees. 

The court ordered another hearing on October 28 to determine 

the amount of the attorney fees. Before that date, however, 

the purchasers moved to amend the findings and for the court 

to find each party must bear its own costs and attorney fees. 

Tn a later order on November 21, the trial court amended its 

judgment and provided further it would not rule on the 

attorney fees question until there were additional pleadings 

and. motions regarding the basis for the claimed fee. The 

same day, November 21, 1983, the purchasers filed their 

notice of appeal-. 

While the appeal was before this Court, the parties 

signed and filed a stipulation in District Court that claimed 
to withdraw the appeal and attempted to give the District 

Court jurisdiction to decide the attorney fees issue. A 

motion to dismiss the appeal was not filed before this Court 

and this Court did not enter an order dismissing the appeal. 

Therefore, this Court has always had jurisdiction. The 

District Court did not have jurisdiction to rule further on 

the substantive issues. 

Nonetheless, the District Court, on the basis of the 

parties ' stipulation withdrawing the appeal and request that 

the District Court decide the attorney fees question, entered 

an order on February 22, 1984, deciding the attorney fees 

question in favor of the seller. The purchasers then filed a 

second notice of appeal, this time apparently attempting to 

get both issues before this Court. Strangely enough, the 

purchasers now contend as one of their issues that the trial 

court had no jurisdiction to hear the attorney fees question 

because too much time had elapsed after the original judgment 

entered on October 19, 1983. 

We hold the November 19, 1983 judgment was not final 

because the attorney fees question still remained and because 

the purchasers, if they desired to appeal before a final 

judgment on all issues, were required to get the issue 

properly certified based on Rule 54, M.R.Civ.P., and the 

rules we set forth in Roy v. Neibeuer (Mont. 1980), 610 P.2d 

1187. This was not done. We further hold that the trial 

court, once the appeal from the November 19, 1983 judgment 

was filed in this Court, had no jurisdiction to proceed on 

any remaining substantive issues unless and until there was 

an order from this Court dismissing the appeal. This Court 

never did dismiss the appeal and was never requested to 

dismiss the appeal. The parties could not, by their own 
action, affree that the appeal be dismissed and that the 

District Court again have jurisdiction. Jurisdiction of the 

District Court required an order from this Court again 

investing jurisdiction in the District Court. This was never 

done. 

Unfortunately, much time, effort and expense could have 

been avoided if the parties heeded the rules of civil 

procedure governing appellate jurisdiction. The only appeal 

before us is the November 19, 1983 judgment, a non-certified 

partial judgment. We therefore remand to the District Court 

for further proceedings consistent with this opinion. The 

a.ppea1 is dismissed without prejudice. 

We Concur: 

3~4d\.Ca/, Chief Justic&