No. 12337 

IN THE 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 the Eighteenth Judicial 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 1 37.3 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from the district court of Gallatin 

County. Plaintiffs brought this action to recover possession 

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. Plaintiffs moved 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 the money judgment had been satisf ied? 

In regard to the first issue, the motion made by plaintiffs' 

counsel in this matter was in the alternative in that the motion 

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 fifteen days after the motion 

is submitted. 

The record discloses that the judgment was entered on the 

jury verdict on May 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 that day the hearing 
was had, the motions were argued and the court granted to June 

19, 1972, to submit briefs. 

Plaintiffs1 brief was not filed until July 10, 1972, 

and on that same day the court granted a new trial. 

Plaintiffs contend that due to the fact that the judge 

of the district court from whose order granting a new trial 

this appeal was taken, made a certificate on October 12, 1972, 

filed in this Court on October 20, 1972, to the effect that 

some time subsequent to May 30, 1972, and before June 19, 1972, 

on telephonic request of Robert M. Holter, attorney for plaintiffs, 

who stated that he wished to append to his 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 to work until July 5, 

1972. Accordingly, the court orally extended time for filing 

of such brief and time for submission until ten days after return of the court reporter. No notice of this telephonic extension was given to defendant until service of copy of the court's 

certificate on October 19, 1972, being the day before it was 

filed in this Court 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 court may continue the hearing for not to exceed thirty 

days. In case it is continued it shall be the duty of the court 

to hear the same at the earliest practicable date thereafter, 

and the court shall rule upon and decide the motion within £ifteen days after it is submitted. If the court fails to rule upon 

the motion within that time the motion shall be deemed denied. 

The Advisory Committee's note to this section refers to 

the confusion by reason of ambiguous language in the previous 

statute, the necessity of researching the case decisions under 
the statute spelling out the jurisdictional time limits, the 

effect thereof, and that it was 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 shown by the court minutes of May 30, 1972, the motion 

for new trial came on regularly to be heard that day, the motion 

was made, resisted by counsel for defendant and fully argued. 

This hearing was had some twenty days after the motion 

for new trial was filed on May 10, 1972. 

Further, on May 30, 1972, the trial court made an order 

that briefs were to be submitted Monday, June 19, 1972, at which 

time the minutes show as follows: 

"The matter will then be deemed submitted to 

the Court and by the Court taken under advisement." 

The time to which the court continued the matter 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 

fifteen days 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 the motion 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 

time within 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 conversation mentioned 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 certificate of the judge has been made and the brief as 

filed by plaintiffs was completely outside the time permitted 

for the determination of the motion and contains no 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 judge may disregard the requirements as 

set forth in Rule 59. 

In view of our holding on the first issue there is no 

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& / !