NO. 80-484 INTHE 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: DistrictCourt 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 ClerkMr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court. Defendant, Agra Steel, appeals from a judgment entered August 12, 1980, inthe Eleventh Judicial District, Flathead County, following a trialbefore the court. The judgment awarded Northwestern National Insurance Company $20,000 with accrued interest and awarded $24,319 toJames 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 alsobrought suitclaiming damages inaddition to the $20,000 paid under the insurance contract. The actions were thereafter consolidated and tried before the court, sittingwithout 

### a jury. Consolidated judgments againstAgra 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 

### itsnotice of appeal September 22, 

### 41days from notice of entry of judgment. On September 24, the respondents made a motion to the District Court to dismiss the appeal asuntimely filed. Argument on the motion to dismiss the appeal was heard October 7 and on October 27, the DistrictCourt found and ordered: 

### "

# . . . the Clerk of this Court neglected to send Notice of Entry of Judgment to defendant's cocounsel in the Stateof Missouri; that the samemay have caused confusion on the part of such cocounsel as towhen the appeal 

### timecommenced running; 

### it appears to the Court that the same constitutesexcusable neglect; "Therefore, plaintiffs' Motion to

### Dismissis hereby denied; the 

### timewithin which defendant may file

### itsnotice of appeal 

### ishereby extended thirtydays. Dated this 27th day of October, 1980." Agra Steel did not filea subsequent notice of appeal, ostensibly relying upon the notice of appeal filed September

In every appeal the firstquestion 

### is thatof jurisdiction. Hand 

### v. Hand (1957), 131Mont. 571, 576, 312 P.2d 990, 992. Before proceeding 

### we must consider whether or not Agra Steelproperly perfected 

### its right of appeal. Appellant had the duty toperfect 

### its appeal inthe manner and within the 

### time

### limitsprovided by law. Absent such compliance, this Court does not acquire jurisdiction to entertain and determine the

### meritsof the appeal. Price v. Mont. Zunchich (1980), 

# - - 

## , 612 P.2d 1296, 37 St.Rep.

Rule 4(a),M.R.App.Civ.P., 

### states: 

### "[A]n appeal shall be taken by filinga notice of appeal in the District Court." Rule 5, M.R.App.Civ.P., provides: "The 

### timewithin which an appeal from 

### a judgment or an order must be taken shallbe 30 days from the entry thereof, except that incases where service of notice of entryof 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 districtcourtmay 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 

### timeprescribed 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 onSeptember 15, Rule 21M.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), 172Mont. 496, 565 P.2d 311. The DistrictCourt, in

### itsorder 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 

### timebeyond the 

### limitsof Rule 

### 5, M.R.App.Cil7.P. The DistrictCourt could not actaf

### 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 filea timely notice of appeal, has failed toperfect 

### itsright of appeal. We, therefore, lack jurisdiction to hear the

### meritsand must dismiss this appeal.

Weconcur:

Chief ~ustice

Justices 

# !