No. 12337 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1973



### H, H. CAIN and 

### ISLA CAIN, Plaintiffs and Respondents,
-VS

# - ANDY HARRINGTON

## , Defendant and Appellant

# .
Appeal from: 

### District Court of theEighteenthJudicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record

### : For Appellant: Bennett and Bennett, Bozeman, Montana Lyman Bennett 

### Jr. argued, Bozeman, Montana For Respondents: Holter and Heath, Bozeman, Montana Robert M. Holter argued, Bozeman, Montana

Submitted: January 23, 1973 Decided

## "'EE 2

## 137.3Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from the district court of Gallatin County. Plaintiffsbrought this action to recoverpossession of Lot 123,Rainbow Subdivision,Gallatin County, Montana, and rental. Defendant counterclaimed,claiming a contract to purchase the land in question and asked for specific performance of the contract and a money judgment. The jury verdict
was for defendant and the judgment ordered conveyance and money judgment. Plaintiffsmoved for a new trial or judgment notwithstanding the verdict. The district court ordered a new trial and from that order defendant appeals. Two issues are presented by appealing defendant. First,
can the district court grant plaintiffs' motion for a new trial
or for judgment notwithstanding the verdict after the expiration of the time specified by Rule 59(d), M.R.Civ.P.? Second, did the district court commit error in granting the plaintiffs' motion for a new trial after themoney judgmenthad been satisfied? In regard to the first issue, themotion made by plaintiffs' counsel in thismatter was in the alternative in that themotion asked for judgment notwithstanding the verdict or for a new trial. These two motions are provided for by Rule 50(b) and Rule 59(d), M.R.Civ.P. These rules clearly indicate that the Qourt shall rule and decide a motion for new trial or a motion for judgment notwithstanding the verdict within fifteendays after the motion is submitted. The record discloses that the judgment was entered on the jury verdict onMay 4, 1972. The motions were filed on May 10, 1972,noticed for hearing on May 15, 1972. On May 10 the hearing was continued and set for May 30. On thatday the hearingwas had, themotions were argued and the court granted toJune 19, 1972, to submit briefs. Plaintiffs1brief was not filed until July 10, 1972, and on that same day the court granted a new trial. Plaintiffscontend that due tothe fact that the judge of the districtcourt from whose order granting a new trial this appeal was taken, made a certificate on October 12, 1972, filed inthis Court on October 20, 1972, tothe effect that
some time subsequent toMay 30, 1972, and before June 19, 1972,
on telephonic request of Robert M. Holter, attorney for plaintiffs, who stated that he wished toappend tohis brief a portion of the transcript of Harringtonls testimony and who certified further the transcript was not available because the court reporter was hospitalized and would not return towork until July 5, 1972. Accordingly, the court orally extended timefor filing of such brief and timefor submission until ten days afterreturn of the court reporter. No notice of thistelephonic extensionwas given todefendant until service of copy of the court's certificate on October 19, 1972, being theday before it was filed inthisCourt with the plaintiffs' brief. Rule 59(d),M.R.Civ.P., provides that the hearing shall be had within ten days after the motion has been served, except that the courtmay continue thehearing for not toexceed thirty days. In case it is continued it shallbe the duty of the court tohear the same atthe earliestpracticable date thereafter, and the court shallruleupon and decide themotion within £ifteen days after it is submitted. If the court failstorule upon themotion within that timethemotion shallbe deemed denied. The Advisory Committee's note tothis sectionrefers to the confusion by reason of ambiguous language inthe previous statute, the necessity of researching the case decisions underthe statute spelling out the jurisdictional time limits, the effect thereof, and that itwas felt that by incorporating the practice under this rule that it would be easier for the practitioner to comply. We believe the purpose of the rule should be adhered to and while we do not wish to be technical, at the same time
we cannot permit deviations. In this case the court did,by the order of May 10, 1972, continue the hearing on the plaintiffs' motion for new trial which had been noticed by counsel for plaintiffs to be heard
on May 15, 1972, to the date of May 30, 1972,at 10:OO a.m., as appears from the minutes of the court. As shownby the courtminutes of May 30, 1972, the motion for new trial came on regularly to be heard that day, themotion was made, resisted by counsel for defendant and fully argued. This hearing was had some twenty days after the motion for new trialwas filed onMay 10, 1972. Further,on May 30, 1972, the trial courtmade an order that briefs were to be submitted Monday, June 19, 1972, at which time theminutes showas follows: "Thematter will then be deemed submitted to the Court and by the Court taken under advisement." The time to which the court continued thematter for submission of briefs was beyond the time permitted by Rule 59(d), M.R.Civ.P. The court had already continued the matter for fifteen days by the time the hearing was had on May 30, 1972, that fifteendays being the time beyond the date specified in the notice of motion, and twenty days further until June 19, 1972, would constitute continuance of thirty-five days. The language of the last paragraph of Rule 59(d), M.R.Civ.P. is interesting in this connection and is as follows:"If themotion is not noticed up for hearing and no hearing is held thereon, it shall be deemed denied as of the expiration of the period of timewithin which hearing is required to be held under this Rule 59." The record of the district court contains no indication anywhere as to when the telephone conversationmentioned in the certificate of the judge occurred. No notice was given to counsel for defendant of any such extension of time. No showing of any filing of any portion of the transcript mentioned in the certificateof the judgehas been made and the brief as filed by plaintiffs was completely outside the time permitted for the determination of the motion and containsno reference to any transcript of any evidence that was introduced in the trial of this action. The certificate of the district judge filed with the plaintiffs' brief indicates the judge extended the time for submission of the cause to an indefinite time, i.e., ten days after return of the court reporter. According to the Montana Rules of Civil Procedure,no judgemay disregard the requirementsas set forth in Rule 59. Inview of our holding on the first issue there isno necessity to discuss the second issue presented. The district court being in error in granting plaintiffs1
judgment enter

Chief Justice We concur:

As ociate ~~~tic& 

# / 

# !