No. 84-111 INTHE SUPREME COUR!ilOF THE STATEOF MONTANA 1984

LEONARD AND BONNIE BOLES, PlaintiffsandAppellants,
-vsVERA LER, Defendantand Respondent.

APPEAL FROM: District Court of the Seventh Judicial District, Inand for the County of Richland, The HonorableR. C. McDonough,Judgepresiding.
COUNSELOF RECORD:
ForAppellants: Lloyd E. Hartford, Billings,Montana For Respondent: Koch & Carter, Sidney,Montana

Submitted on Briefs: July 19, 1984 Decided: November 14, 1984

-.-- ClerkMr. 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. Theplaintiffs 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- isnotproperly 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 judgmentquestion,and further ordered the seller was entitled to attorney fees. The court ordered anotherhearing 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 eachpartymust bear its own costsand attorney fees. Tna later order onNovember 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 inDistrictCourt that claimedto 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 Courtdid 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 theDistrictCourt decide the attorney fees question, entered
an order on February 22, 1984, deciding the attorney fees question in favor of the seller. Thepurchasers 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 toomuch timehad elapsed after the original judgment entered onOctober 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 ruleswe 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 ownaction, affreethat 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 DistrictCourt. Thiswas 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.ppea1is dismissedwithoutprejudice.

We Concur: 

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