### 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 PATRICIAA. FRY, et al., Defendants and Appellants, CULLIGAN INTERNATIONAL COMPANY, a corporation, Third Party Plaintiff and Respondent,-vsPHILIP K. FRY and PATRICIAA. 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

## -

# 61273

### 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 filedFebruary 

### 9, 1977, in theDistrict Court, Fergus County. On April 

### 11, 1977, defendants moved the trialcourt tovacate and set aside a portion of thejudgment. 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 ,inthe ~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 thejudgment accordingly. 

# **

# *" The motion here was made 

### 46 days beyond the authority of Rule 52. Since itwas 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 ajudgment or an order must be taken shallbe 30 days from the entry thereof, except that in cases where service of notice of entry of judgment isrequired by Rule 77(d) of the Montana Rules of Civil Procedure the time shallbe 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 aswhen 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 filingof notice of entry of judgment. A notice of appeal filed after the 30 day period fails tovest jurisdiction in this Court and this appeal must be dismissed. Defendant, for the first time on this appeal, argues that hisApril 

### 11, 1977 motion tovacate was filed and heard pursuant

### toRule 60, M.R.Civ.P. There isno evidence inthe record that defendant ever intended toproceed under Rule 60. However, had thisbeen the case and the motion properly pleaded under the provisions of Rule 60(a) or (b), the time limitationmandatory under these sections

### is found inRule 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 alteror amend judgments will 

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

### motion to alter or amend thejudgment shall be served not later than 10days after the service of the notice of the entry of thejudgment 

# ** *." This Court lackingjurisdiction tohear this appeal, hereby orders the appeal dismissed.

Justice

We Concur: