No. 90-049 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

GRIMES MOTORS, INC. , Plaintiff and Respondent, 

-vJOSEPH F. NASCIMENTO, 

Defendant and Appellant. 

rs 

..I 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dennis G. Loveless, Helena, Montana 

For Respondent: 

Robert J. Sewell, Jr., Smith Law Firm, Helena, 

Montana 

submitted: June 20, 1990 

Decided: August 20, 1990 

Filed: 

I 

Clerk 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Appellant Joseph I?. Nascimento appeals from the order of the 

District Court of the First Judicial District, Lewis and Clark 

County, State of Montana, dismissing his appeal from the Justice 

Court order, which dismissed his motion for relief from judgment. 

We affirm. 

The determinative issue on appeal is whether Rule 6(e), 

M.R.Civ.P., and Rule 6C, M.J.C.R.Civ.P., apply to an appeal from 

justice court to district court. 

On February 22, 1989, appellant tendered a check for $518.90 

to respondent for repairs to his pickup. The bank allegedly 

returned the check for nonsufficient funds. Appellant asserts that 

he stopped payment on the check because he felt that the repairs 

should be covered under his new vehicle warranty. 

Respondent filed a complaint in the Justice Court of Lewis and 

Clark County, State of Montana, on April 24, 1989. The complaint 

named ''Manuel A. (Joe) Nascimentol' as defendant. Appellant was 

served with summons and complaint. Appellant then moved to dismiss 

for lack of service because appellant was incorrectly named in the 

complaint. On June 8, 1989, respondent amended the complaint, this 

time naming ''Joseph F. Nascimentol' as defendant. On June 27, 1989, 

the Justice Court denied the motion to dismiss and allowed 

appellant five days from that date to answer the amended complaint. 

Defendant failed to file an answer. After the five day 

period, respondent filed a request for default due to defendant's 
failure to answer. On July 28, 1989, the Justice Court granted the 

default. That same day, the Justice Court entered a judgment in 

favor of respondent and against appellant in the amount of 

$1,081.90, with 10% interest, and costs of $35.00, for a total of 

$1,116.90. 

On August 4, 1989, appellant moved the Justice Court to set 

the default aside. Appellant's motion was supported by an 

affidavit which stated that appellant had filed another lawsuit in 

District Court which was essentially a counterclaim, and that 

appellant's counterclaim, when combined with the original amount 

in the complaint, exceeded the dollar amount under the Justice 

Court's jurisdiction. Appellant further alleged that he had been 

told by the Justice Court staff that the filing of the counterclaim 

would automatically transfer the case file to District Court 

without any additional action on his part. From this conversation, 

appellant understood that the entire case would be transferred to 

District Court. 

On August 28, 1989, the Justice Court denied appellant's 

motion to set aside. On September 29, 1989, 32 days after the 

denial of appellant's motion, appellant filed a notice of appeal 

with the Justice Court. 

After a briefing and oral argument schedule, the District 

Court entered an order on January 12, 1990, dismissing the appeal 

as untimely and granting respondent $50.00 in costs. On January 

19, 1990, the District Court entered an order directing the Clerk 

of Court to disburse $1,262.89 of the appeal security to respondent 
and remit the balance to appellant. This appeal followed. 

The first issue is whether Rule 6(e), M.R.Civ.P., and Rule 6C, 

M.J.C.R.Civ.P., apply to an appeal from justice court to district 

court. 

The right of appeal from justice court to district court is 

purely statutory. Electric Coop. Inc. v. Anhalt, 127 Mont. 71, 257 

P. 2d 889 (1953) . Generally, unless an appeal from justice court 

is taken within the time and effectuated in accordance with the 

regulations prescribed by law, the district court has no 

jurisdiction. See Davis v. Bell Boy Gold Min. Co., 101 Mont. 534, 

54 P. 2d 563 (1936) . 

Section 25-33-101 through 104, MCA, exclusively governs 

appeals from justice and city courts to district court. Section 

25-33-102, MCA, provides that a party may appeal the judgment in 

a civil action in justice court to district court "within 30 days 

after the rendition of the judqment." 

Although not specifically defined by the Montana courts, 

numerous other jurisdictions have defined the rendition of a 

judgment as the judicial act of the court in pronouncing the 

sentence of the law, as opposed to entry of a judgment which is a 

ministerial act performed by the clerk of court, such as docketing, 

entering, or recording the judgment. See Valley Natll Bank of 

Arizona v. Meneghin, 634 P.2d 570 (Ariz. 1981) ; Casati v. Aero 

Marine Management Co., Inc., 356 N.E.2d 826 (Ill. Ct. App. 1976); 

Carter v. Board of Zoning Appeals, 377 S.W.2d 914 (Tenn. 1964). 

See State v. Mortenson, 175 Mont. 403, 574 P.2d 581 (1978), where, 
in a criminal case, the time for an appeal from justice court to 

district court commenced from judgment rendered in open court. See 

generally Karell v. Amer. Cancer Society, 46 St.Rep. 1593, 779 P. 2d 

506 (Mont. 1989). 

In this case, the default judgment against appellant was 

rendered by the Justice Court on July 28, 1989. Appellant then 

filed a motion to set aside the judgment. This motion suspended 

the commencement of the 30 day time set for appeal. The Justice 

Court rendered judgment upon the motion to set aside on August 28, 

1989. Based upon $3 25-33-102, MCA, appellant had 30 days from 

August 28, 1989, to file his notice of appeal. The 30th day was 

September 27, 1989. Appellant filed his appeal on September 29, 

1989, 32 days after the date the judgment was rendered, and two 

days late. 

Appellant argues that Rule 6(e), M.R.Civ.P., and Rule 6C, 

M. J. C.R. Civ. P., are applicable to this case. Appellant is 

mistaken. As indicated above, $38 25-33-101 and 25-33-102, MCA, 

exclusively govern the time for filing the notice of appeal from 

justice court to district court. 

The time for appeal in this case commenced with the 

llrenditionll of the judgment of the justice court as provided in 9 

25-33-102, MCA. Because appellant filed his notice of appeal 32 

days after judgment was rendered, the District Court properly 

dismissed appellantls appeal. 

The second issue, whether the security posted by appellant and 

released to respondent should be reinstated pending this appeal and 
until a final determination of this case, need not be discussed due 

to the resolution of the first issue. 

Affirmed . 

Justice 

We Concur: