No. 12282 INTHE SUPREME COURT OF THE STATE OF MONTANA

HAROLD H

# .LEITHEISER

## , Claimant and Respondent,

MONTANA STATE PRISON, Employer, and INDUSTRIAL ACCIDENT BOARD, Defendant and Appellant.

Appeal from: District Court of the Third JudicialDistrict, Honorable Sid G. Stewart, Judge presiding. Counsel of Record: For Appellant: 

### Harris, Jackson and Utick, Helena, Montana. Andrew J. Utick argued, Helena, Montana. Hon. Robert L. Woodahl, Attorney General, Helena,

Montana. For Respondent: Jardine, Stephenson, Blewett & Weaver, Great Falls,

Montana. Jack L. Lewis argued, Great Falls, Montana.

Submitted: December 1, 1972PER CURIAM:

In this cause a motion to dismiss the appeal was filed by respondent on the ground that appellants failed toperfect their appeal within the time permitted by statute. The record discloses: On February 

### 3, 1972, the district court of Powell County enteredjudgment in favor of the claimant and respondent, Harold H. Leitheiser, reversing an order denying compensation the Industrial Accident Board. February 

### 7, 1972, notice of entry of judgment was mailed to counsel for defendants and appellants, Montana State Prison and the Industrial Accident Board (hereinafter called appellants). On February 

### 7, 1972, appellants filed exceptions to the district court's findings of fact and conclusions of law. On February 

### 8, 1972, appellants mailed a motion for a new trial to the opposing attorneys and to the district court, which motion was filed on February 9, 1972. Under Rule 5(b), M. R.Civ.P., the service of the motion for a new trialwas complete upon mailing. The motion for a new trialdid not contain a notice of hearing and no hearing was held. March 2, 1972, the district court clerkmailed a notice to appellants that their motion for a new trialwas denied. On April 20, 1972, appellants mailed notice of appeal to the districtcourt for filing. This notice of appeal was received and filedby the districtcourt clerk on April 21, 1972. The briefs of the litigants indicate a conflict intheir interpretation and application of the Montana Rules of Appellate Civil Procedure, We willtherefore discuss briefly the pertinent code provisions and precedent applicable in this case. Rule 4(a), M.R.App.Civ.P., provides: "(a) FILING THE NOTICE OF APPEAL, An appeal shallbe taken by filinga notice of appeal in che district court. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal-,but isground only for such action as the supreme court deems appropriate, which may include dismissal of the appeal. IrThe final sentence of Rule 4(a), M.R..App.Civ.P., 

### is identical toa provision of Rule 3(a) of the Federal Rules of Appellate Procedure. 9~oore's Federal Practice 

### 5 203.10, summarizes the application given this provision. It states inpart:

### h he notice of appeal isfiledwith the clerk when it 

### isreceived intohis custody and control. Since timely filingof the notice isheld tobe essential to thejurisdiction of the court of appeals, the precise time that thenoticewas filed can be of overwhelming importance." 

### 9 ~oore's Federal Practice 

### 5 204.02, states inpart: "Discussion of the time for appeal must begin by directing attentiontoa host of cases holding with unanimity that unless an appeal is timely taken the reviewing court lacksjurisdiction to hear it. Although that holding 

### isnot as logically compelling as it once was, the necessity for providing a precisely ascertainable point of time at which litigationcomes to an end strongly militates against 

### its overthrow. 

### As the Committee Note accompanying Rule 3 admonishes: "'~ule 3 and Rule 4 combine torequire that a notice of appealbe filedwith the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal 

### is "mandatory and jurisdictional", United Statesv. Robinson, 361U.S. 220,224 (1960), compliance with the provisions of those rules is of the utmost importance. t 11 This application of the filingrulehas been followed consistentlyby this Court. Statev. Wibaux County Bank, 85 Mont. Reid v. District Court

## , Mont

# . 693; McVay v. McVay, 128 Mont. 31, 270 P.2d 393; Jackson v. Tinker, Mont

# . Y P.2d 

## , 29 St.Rep. 1070. We therefore find it iswell established inthis state that failure tocomply with the filingrule on appeal creates a jurisdictional defect which this Court will'alteronly on most extenuating circumstances, which do not appear here. Appellants here, from theirbrief, appear tobe inagreement with our holdings

as to thejurisdictional nature of the appellate filingrequirement. Their contention involves the application of Rule 

### 5, M.R. App. Civ. P.,.in light of Rule 59(d), M,R.Civ.P., inarriving at

a determination of:(1) How many days did the appellantshave withinwhich to file? (2) When did this time period begin torun and, consequently, when did it expire? Rule 59(d), M.R.Civ.P., 

### is essentially a reenactment of former section 93-5606, R.C.M. 1947, with a change from fifteen days toten days in the self-executing provision for denial of post judgment motions. In pertinent part, Rule 59(d) provides:

1IIf the motion isnot noticed up forhearing and no hearing isheld thereon, it shallbe deemed denied as of the expiration of the period of time [I0days] withinwhich hearing isrequired tobe held under this Rule 59. " In the instant case the motion for a new trialwas served

on February 8, 1972. That motion did not contain a notice of hearing, and no hearingwas held. Under Rule 59(d), M.R.Civ.P., this motion for a new trialwas automatically denied ten days after service on February 18, 1972. Stateex rel. Sinko v. District Court, 64 Mont. 181, 208 

### P. 952; State ex rel. King,v..District Court, 107 Mont. 476, 86 P.2d 755; Gilreath v. District Court, 127 Mont. 431, 265 P.2d 651; Green v. District Court, 126Mont. 176, 246 P.2d 813. The fact that the district court clerkmailed

a letter dated March 2, 1972, which stated: "Pleased (sic) be advised that the Court on this date denied the Motion forNew Trial filedby you on February 

### 9, 1972." isof no legal effect. The district court was without jurisdiction to grant or deny a motion for a new trial on March 2, 

### - 1972. By operation of the self-executing provision of Rule 59(d), M.R.Civ.P., the motion for a new trialwas "deemed denied" ("deemedf1inthis constructionhas been held tobe synonymous with "consideredr', "determined", or "adjudged") on Febuary 18, 1972. The time inwhich notice of appeal must be filedwith the Jiscrict court is set forth inRule 5, M.R.App.Civ.P. When the appealing party isan agency of the stateof Montana, as are appellants here, sixtydays from service of notice of entry of judgment are allowed inwhich to file. This rule alsomakes provisionfor suspension of the running of the sixty day filing time in the event of filingof various enumerated post judgment motions. Concerning the suspension of filing time, Rule 

### 5, M,R.App.Civ.P., provides inpertinent part:

1'The running of the time for filinga notice of appeal 

### is suspended as to allpartiesby a timely motion filedinthe districtcourt by any party pursuant to theMontana Rules of Civil Procedure hereafter enumerated in this sentence, and the fulltime for appeal fixed by this rule commences torun and 

### istobe computed from mailing by the clerkof notice of the entry of any of the following orders made upon a timely motion under such rules:

# ** 9~ 

### (4) denying a motion for a new trialunder Rule 59.'' Under appellants' proposed interpretation of thisrule their sixtyday allotted period inwhich to filean appeal was suspended by their motion for a new trialand did not commence torun again untilMarch 

### 3, 1972, the day they received the letter from the clerk of the district court, rather than on February 19, 1972, the day after their motion for a new trial

was deemed denied under the self-executing provision of Rule 59(d)

## ,M.R. Civ,P. Appellants' interpretation isnot: correct. ~~pellants' misconstruction of Rule 5, M,R.App.Civ. P., apparently results from a failure to take intoaccount the interacting and applicableprovisions of Rule 

### 59, M.R.Civ.P..

I' The reference inRule 

### 5, M.R.App,Civ.P., to the time being computed from mailing by the clerk of notice" applies incases wherein the court holds a hearing on a motion or acts on a motion prior to the ten day self-executing denial provision of Rule 59(d), M.R,Civ.P. However, once the self-executing denial of a motion under Rule 59(d) becomes effective, any subsequent order by the district court concerning that motion 

### is outside the district court's jurisdiction and, consequently, null, void, and without effect. Appellantsfproposed construction of Rule 5, M.R.App.Civ. P., would result inan untenable situationwherein itwould be possible for an unlimited extension of the time for appeal. District courts would be placed inthe position of being required toissue orders concerning motions over which they no longer had jurisdiction and which were already denied. Judgments of the district courts would not become final and would be subject to appeal until sixtydays after such time, if ever, the district court issued such a null, void, and extrajurisdictional order. This would be contrary to the effect and operation of Rule 59, M.R.Civ.P., and Rule 5, M.R.App.Civ.P., and Montana precedent. Accordingly, we hold appellantsf time for filing this appeal commenced running as of February 18, 1972, and expired sixtydays thereafter, on April 18, 1972. It isregrettable that this Court must impose this rule ina case involving so

narrow a time margin; however, 

### an exception for one would ultimately become an exception for all, and an exception of one day would ultimately become an exception indefinitely. This appeal was not timely taken and is dismissed.