No. 89-049 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN MATTER OF THE ESTATE OF 

LOUIS WARREN STINSON, a/k/a 

LOUIS W. STINSON, Deceased. Z 

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z, t, APPEAL FROM: District Court of the Twelfth Judicial Distimg, 0 

In and for the County of Chouteau, zx s 

The Honorable Chan Ettien, Judge presiding. c W 

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COUNSEL OF RECORD: 

For Appellant: 

~illiam B. Sherman, Conrad, Montana 

For Respondent: 

Gale R. Gustafson, Conrad, Montana 

Filed: 

submitted on ~riefs: Sept. 15, 1989 

Decided: November 15, 1989 

Clerk 
Justice John C. Sheehy delivered the Opinion of the Court. 

Appellants Larry Stinson, Verna Stinson Hudson, and Echo 

Joy Stinson Braff, initiated suit in the District Court of 

the Twelfth ~udicial District, Choteau County, to contest the 

will of their late father, Louis Warren Stinson. Personal 

Representative and respondent, Grace C. Stinson, successfully 

moved to dismiss the action for failure to prosecute, and 

summary judgment was entered. Appellants moved to alter or 

amend the judgment pursuant to Rule 59(g), M.R.Civ.P., and 

the previous order of September 22, 1988, dismissing the 

action was nullified and revoked. Appellants now appeal the 

initial order of dismissal to protect their rights, in the 

event the District Court order of November 21, 1988 was made 

at a time when the Court lacked jurisdiction. We dismiss the 

appeal for lack of jurisdiction. 

The central issue in this case is whether the ~istrict 

Court had jurisdiction to nullify and revoke its September 

22, 1988 order dismissing the action for failure to 

prosecute. 

~ouis Warren Stinson died on April 15, 1984. Respondent 

Grace Stinson, his wife of 23 years, applied for and was 

appointed Personal Representative of the estate, pursuant to 

the deceased's Will of April 18, 1970. The Will devised all 

of his estate to Grace Stinson, except for $100 to each of 

~ouis Stinson's children from a previous marriage 

(contestants/appellants). 

Grace Stinson initiated informal probate proceedings on 

May 3, 1984. Contestants filed petitions for revocation of 

appointment of the Personal Representative and to deny 

probate on February 28, 1985. 
Grace Stinson filed her petition for determination of 

testacy, determination of heirs, and for settlement and 

distribution of the estate on November 11, 1984. Hearing on 

the matter was set for March 26, 1985, but was continued 

indefinitely on that date. In that order, the court 

commanded counsel to "get together and work up a 

pre-pre-trial agreement as to deadlines, exchange of 

exhibits, agreed facts, trial dates available and other 

matters agreeable." 

Correspondence between counsel included in the record 

indicates that contestants sought a settlement of $105,000, 

to be divided between them. Counsel for Grace Stinson 

indicated her refusal to such a settlement, and advised that 

a motion for summary judgment was forthcoming if contestants 

did not take some action in the matter. 

Grace Stinson filed a motion for summary judgment on 

March 31, 1986. Contestants moved to vacate the hearing on 

the motion, and moved for a pretrial hearing. 

The hearing on the motion for summary judgment was set 

and subsequently continued on three occasions. These 

extensions of time were granted to accommodate the production 

of telephone records of contestant Joy Stinson Braff. These 

records had been requested to substantiate claims of Joy 

Braff that she had, over the years, attempted to maintain 

contact with her father. 

From the August 4, 1987 order enlarging time, until July 

18, 1988, no motions were filed and no hearings on the matter 

were held. On July 18, 1988, Grace Stinson moved to dismiss 

the contest for failure to prosecute. Memoranda were 

submitted, and on September 22, 1988, the court granted Grace 

Stinson's motion to dismiss for lack of prosecution. Notice 

of entry of judgment of dismissal was filed on September 30, 

1988. 
Contestants filed their petition for reconsideration 

(hereinafter referred to as a Rule 59 (g) , M.R.civ.P. motion 

to alter or amend a judgment) on October 17, 1988. 

Contestants stated in an accompanying memorandum that they 

had not been sleeping on their rights, that the motion for 

dismissal was filed on July 18, 1988, less than two years 

after the August 20, 1986 affidavit of Joy Stinson Braff. 

The court concurred with the contestants and granted the 

motion to alter or amend the dismissal order of September 22, 

1988, thereby nullifying and revoking that order. 

Contestants now appeal the September 22, 1988 order of 

dismissal "to protect the rights of contestants in the event 

the ~istrict Court order of November 21, 1988 denying the 

motion for dismissal was made at a time when the Court did 

not have jurisdiction." 

Rule 59(g), M.R.Civ.P., states in part: 

Motion to alter or amend a judgment. A motion to 

alter or amend a judgment shall be served not later 

then 10 days after the service of the notice of 

entry of the judgment . . .. 

This Court has steadfastly held the district courts to a 

strict interpretation of this rule and "no judge may 

disregard the requirement as set forth in Rule 59." ~ain v. 

~arrington (1973), 161 Mont. 401, 506 P.2d 1375. Proper 

application of Rule 59(g) clearly prohibits the granting of 

requested relief when the motion is not timely served. 

McDonald v. McDonald (1979), 183 Mont. 312, 599 P.2d 356. 

The ~istrict Court issued the order of dismissal on 

September 22, 1988. Notice of entry of judgment was served 

on September 30, 1988. Contestants did not file their Rule 

59(g) motion to alter or amend judgment until October 17, 

1988. Even adding an additional three days as provided by 

Rule 6(e), M.R.Civ.P., the motion should have been filed by 
October 13, 1988. Because it was filed too late, the trial 

court did not have jurisdiction to hear or determine the 

motion to amend the judgment. ~ccordingly, the ~istrict 

Court's order of November 21, 1988 is a nullity and cannot 

stand. O'Connell v. ~eisdorf (19821, 202 Mont. 89, 656 P.2d 

199; Matter of Estate of Gordon (Mont. 1981), 628 P.2d 1117, 

38 St.Rep. 887. 

In addition, because the motion to amend the judgment 

was filed too late, the time for filing notice of appeal was 

not suspended. ~otice of appeal was filed on November 29, 

1988, two months after entry of judgment, well beyond the 30 

day time limit provided in Rule 5, M.R.App.Civ.P. Absent a 

timely notice of appeal, this Court does not acquire 

jurisdiction to determine an appeal on the merits. price v. 

Zunchich (1980), 188 Mont. 230, 612 P.2d 1296; O1Connell, 

supra. The order of September 22, 1988 dismissing for 

failure to prosecute therefore remains in effect and is no 

longer appealable. 

Appeal dismissed. 

( L.L-4- -4. /2i2L.tdV 

Justice 

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