NO. 80-484 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

NORTHWESTERN NATIONAL INSURANCE COMPANY, 

a corporation, 

Plaintiff and Respondent, 

VS . 

AGRA-STEEL CORPORATION, et al. , 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

For Respondent : 

Warden, Christiansen and Johnson, Kalispell, Montana 

Astle and Astle, Kalispell, Montana 

Submitted on briefs: May 28, 1981 

Decided: August 6, 1981 

Filed: AUG6- 1988 

m 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant, Agra Steel, appeals from a judgment entered 

August 12, 1980, in the Eleventh Judicial District, Flathead 

County, following a trial before the court. The judgment 

awarded Northwestern National Insurance Company $20,000 with 

accrued interest and awarded $24,319 to James R. Johnson and 

Barbara E. Johnson. The damages resulted from breach of 

express and implied warranties covering a steel storage 

building purchased from Agra Steel by the Johnsons and 

insured by Northwestern National. A heavy snowfall caused 

the roof to sag. 

Approximately one year after the roof was damaged, 

Northwestern National Insurance Company paid the Johnsons 

$20,000 under an insurance contract covering the building. 

Northwestern then sued Agra Steel through exercising subrogation rights. The Johnsons also brought suit claiming damages 

in addition to the $20,000 paid under the insurance contract. 

The actions were thereafter consolidated and tried before 

the court, sitting without a jury. 

Consolidated judgments against Agra Steel were ordered 

August 11, 1980, and notice of entry of judgment was filed 

August 1.2 and served upon counsel for Northwestern ~ational 

Insurance and Agra Steel. Counsel for the Johnsons was not 

served. Agra Steel filed its notice of appeal September 22, 

41 days from notice of entry of judgment. On September 24, 

the respondents made a motion to the District Court to 

dismiss the appeal as untimely filed. Argument on the 

motion to dismiss the appeal was heard October 7 and on 

October 27, the District Court found and ordered: 

" . . . the Clerk of this Court neglected to send 

Notice of Entry of Judgment to defendant's cocounsel in the State of Missouri; that the same 
may have caused confusion on the part of such cocounsel as to when the appeal time commenced running; it appears to the Court that the same constitutes excusable neglect; 

"Therefore, plaintiffs' Motion to Dismiss is 

hereby denied; the time within which defendant 

may file its notice of appeal is hereby extended 

thirty days. Dated this 27th day of October, 

1980." 

Agra Steel did not file a subsequent notice of appeal, 

ostensibly relying upon the notice of appeal filed September 

In every appeal the first question is that of jurisdiction. Hand v. Hand (1957), 131 Mont. 571, 576, 312 P.2d 

990, 992. Before proceeding we must consider whether or not 

Agra Steel properly perfected its right of appeal. Appellant 

had the duty to perfect its appeal in the manner and within 

the time limits provided by law. Absent such 

compliance, this Court does not acquire jurisdiction to 

entertain and determine the merits of the appeal. Price v. 

Zunchich (1980), - Mont. - , 612 P.2d 1296, 37 St.Rep. 

Rule 4 (a), M.R.App.Civ.P., states: " [A] n appeal shall 

be taken by filing a notice of appeal in the District Court." 

Rule 5, M.R.App.Civ.P., provides: 

"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 . . . 

". . . 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." 

In this case the notice of entry of judgment was filed 

August 12 and served by mail. The original time for giving 

notice of appeal therefore expired 34 days later on 
September 15, Rule 21 M.R.App.Civ.P. The maximum allowable 

time period within which the District Court could grant an 

extension of time for filing the notice of appeal expired 

October 15. Zell v. Zell (1977), 172 Mont. 496, 565 P.2d 

311. 

The District Court, in its order of October 27, denied 

respondents' motion to dismiss the appeal and extended the 

time for filing the notice until November 27. The order was 

erroneous because it granted an extension of time beyond the 

limits of Rule 5, M.R.App.Cil7.P. The District Court could 

not act af ter October 15. The only notice of appeal here on 

file is one filed out of time. No timely order has extended 

the time. 

We hold Agra Steel, by failing to file a timely notice 

of appeal, has failed to perfect its right of appeal. We, 

therefore, lack jurisdiction to hear the merits and must 

dismiss this appeal. 

We concur: 

Chief ~ustice 

Justices !