No. 13866 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

FIRST NATIONAL BANK OF LEWISTOWN, 

a National Banking Corporation, 

Plaintiff and Respondent, 

-vsPHILIP K. FRY and PATRICIA A. FRY, et al., 

Defendants and Appellants, 

CULLIGAN INTERNATIONAL COMPANY, a corporation, 

Third Party Plaintiff and Respondent, 

-vsPHILIP K. FRY and PATRICIA A. FRY, et al., 

Third Party Defendants. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinn, Judge presiding. 

Counsel of Record: 

For Appellants: 

D. Frank Kampfe, Red Lodge, Montana 

Gilbert Burdette argued, Red Lodge, Montana 

For Respondents: 

Peter L. Rapkoch argued, Lewistown, Montana 

Bradley B. Parrish, Lewistown, Montana 

Submitted: January 23, 1978 

Decided: WR - 6 1978 

Filed: MAR - 6 1273 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an action of foreclosure of mortgage. 

Notice of entry of judgment for plaintiff was filed February 

9, 1977, in the District Court, Fergus County. On April 11, 1977, 

defendants moved the trial court to vacate and set aside a portion 

of the judgment. This is a motion under Rule 52, M.R.Civ.P.,and 

must be made within 10 days after service of notice of entry of 

judgment, as stated ,in the ~ule: 

"(b) Amendment. Upon motion of a party made not 

later than 10 days after entry of judgment the court 

may amend its findings or make additional findings 

and may amend the judgment accordingly. * * *" 

The motion here was made 46 days beyond the authority of 

Rule 52. Since it was not timely made, it did not suspend the 

running of time within which the defendants are permitted to file 

their appeal under Rule 5, M.R.App.Civ.P., which states: 

"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 * * *.'I 

The rule is subject to other exceptions that do not apply 

here, such as when the state of Montana is a party. This case 

does come under Rule 77(d), M.R.Civ.P., and hence a notice of 

appeal was mandatory within 30 days from filing of notice of entry 

of judgment. A notice of appeal filed after the 30 day period 

fails to vest jurisdiction in this Court and this appeal must be 

dismissed. 

Defendant, for the first time on this appeal, argues that 

his April 11, 1977 motion to vacate was filed and heard pursuant 
to Rule 60, M.R.Civ.P. There is no evidence in the record that 

defendant ever intended to proceed under Rule 60. However, had 

this been the case and the motion properly pleaded under the 

provisions of Rule 60(a) or (b), the time limitation mandatory under 

these sections is found in Rule 60(c), as amended July 1, 1969. 

This section of the rule provides that the time limitations in 

Rule 59, M.R.Civ.P., for motions to alter or amend judgments will 

be followed. Rule 59(g), M.R.Civ.P., provides: 

"A motion to alter or amend the judgment shall 

be served not later than 10 days after the service 

of the notice of the entry of the judgment * * *." 

This Court lacking jurisdiction to hear this appeal, 

hereby orders the appeal dismissed. 

Justice 

We Concur: