No. 12282 

IN THE 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 Judicial District, 

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, 1972 
PER CURIAM: 

In this cause a motion to dismiss the appeal was filed 

by respondent on the ground that appellants failed to perfect 

their appeal within the time permitted by statute. 

The record discloses: On February 3, 1972, the district 

court of Powell County entered judgment 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 

trial was complete upon mailing. The motion for a new trial did 

not contain a notice of hearing and no hearing was held. March 

2, 1972, the district court clerk mailed a notice to appellants 

that their motion for a new trial was denied. On April 20, 1972, 

appellants mailed notice of appeal to the district court for filing. 

This notice of appeal was received and filed by the district court 

clerk on April 21, 1972. 

The briefs of the litigants indicate a conflict in their 

interpretation and application of the Montana Rules of Appellate 

Civil Procedure, We will therefore 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 

shall be taken by filing a 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 is ground only for such action as the 

supreme court deems appropriate, which may include 

dismissal of the appeal. I r 
The final sentence of Rule 4(a), M.R..App.Civ.P., is 

identical to a 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 

in part: 

 h he notice of appeal is filed with the clerk 

when it is received into his custody and control. 

Since timely filing of the notice is held to be 

essential to the jurisdiction of the court of 

appeals, the precise time that the notice was 

filed can be of overwhelming importance." 

9 ~oore's Federal Practice 5 204.02, states in part: 

"Discussion of the time for appeal must begin 

by directing attention to a host of cases holding 

with unanimity that unless an appeal is timely 

taken the reviewing court lacks jurisdiction to 

hear it. Although that holding is not as logically 

compelling as it once was, the necessity for providing a precisely ascertainable point of time at 

which litigation comes to an end strongly militates 

against its overthrow. As the Committee Note accompanying Rule 3 admonishes: 

"'~ule 3 and Rule 4 combine to require that a 

notice of appeal be filed with 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 States v. Robinson, 361 U.S. 220,224 (1960), 

compliance with the provisions of those rules is 

of the utmost importance. t 11 

This application of the filing rule has been followed 

consistently by this Court. State v. Wibaux County Bank, 85 Mont. 

Reid v. District Court , Mon t . 693; McVay v. McVay, 128 Mont. 31, 270 P.2d 393; Jackson v. Tinker, 

Mon t . Y P.2d , 29 St.Rep. 1070. 

We therefore find it is well established in this state 

that failure to comply with the filing rule on appeal creates a 

jurisdictional defect which this Court will'alter only on most 

extenuating circumstances, which do not appear here. Appellants 

here, from their brief, appear to be in agreement with our holdings 

as to the jurisdictional nature of the appellate filing requirement. Their contention involves the application of Rule 5, M.R. 

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

a determination of: 
(1) How many days did the appellants have within which 

to file? 

(2) When did this time period begin to run 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 to ten days in the self-executing provision for denial of 

post judgment motions. In pertinent part, Rule 59(d) provides: 

1 I 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 

[I0 days] within which hearing is required to be 

held under this Rule 59. " 

In the instant case the motion for a new trial was served 

on February 8, 1972. That motion did not contain a notice of 

hearing, and no hearing was held. Under Rule 59(d), M.R.Civ.P., 

this motion for a new trial was automatically denied ten days after 

service on February 18, 1972. State ex 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, 126 Mont. 

176, 246 P.2d 813. The fact that the district court clerk mailed 

a letter dated March 2, 1972, which stated: 

"Pleased (sic) be advised that the Court on 

this date denied the Motion for New Trial 

filed by you on February 9, 1972." 

is of 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 trial was "deemed denied" 

("deemedf1 in this construction has been held to be synonymous with 

"consideredr', "determined", or "adjudged") on Febuary 18, 1972. 

The time in which notice of appeal must be filed with the 

Jiscrict court is set forth in Rule 5, M.R.App.Civ.P. When the 

appealing party is an agency of the state of Montana, as are appellants here, sixty days from service of notice of entry of judgment are allowed in which to file. This rule also makes provision 
for suspension of the running of the sixty day filing time in 

the event of filing of various enumerated post judgment motions. 

Concerning the suspension of filing time, Rule 5, M,R.App.Civ.P., 

provides in pertinent part: 

1' The running of the time for filing a notice 

of appeal is suspended as to all parties by a 

timely motion filed in the district court by 

any party pursuant to the Montana Rules of Civil 

Procedure hereafter enumerated in this sentence, 

and the full time for appeal fixed by this rule 

commences to run and is to be computed from mailing 

by the clerk of 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 

trial under Rule 59.'' 

Under appellants' proposed interpretation of this rule 

their sixty day allotted period in which to file an appeal was 

suspended by their motion for a new trial and did not commence 

to run again until March 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 is not: correct. 

~~pellants' misconstruction of Rule 5, M,R.App.Civ. P., 

apparently results from a failure to take into account the 

interacting and applicable provisions of Rule 59, M.R.Civ.P.. 

I' The reference in Rule 5, M.R.App,Civ.P., to the time being computed from mailing by the clerk of notice" applies in cases 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. 

Appellantsf proposed construction of Rule 5, M.R.App.Civ. 

P., would result in an untenable situation wherein it would be 

possible for an unlimited extension of the time for appeal. District courts would be placed in the position of being required to 
issue 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 sixty days 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 

sixty days thereafter, on April 18, 1972. It is regrettable 

that this Court must impose this rule in a 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.