No. 80-182 

IN THE SUP-ME COURT OF THE STATE OF MONTANA 

1981 

F. W. WOOLWORTH COMPANY, INC., 

a New York Corporation, 

Petitioner and Appellant, 

EMPLOYMENT SECURITY DIVISION OF THE 

MONTANA STATE DEPARTMENT OF LABOR AND 

INDUSTRY et al., 

-- 

Respondents. 

No. 80-183 

J. C. PENNEY COMPANY, INC., a 

Delaware Corporation, 

Petitioner and Appellant, 

VS . 

EMPLOYMENT SECURITY DIVISION OF THE 

MONTANA. STATE DEPARTMENT OF LABOR AND 

INDUSTRY et al., 

Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Hill. 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants: 

Poore, Roth, Robischon and Robinson, Butte, Montana 

Donald Robertson argued and Douglas A. Buxbaum argued, 

Butte, Montana 

For Respondents: 

Robert J. Campbell argued, Helena, Montana 

For Intervenor: 

D. Patrick McKittrick argued, Great Falls, Montana 

Submitted: March 27, 1981 

Decided: May 6, 1981 

Filed: MAY -6 1981 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

F.W. Woolworth Co., Inc., and J.C. Penney Company, Inc., 

appeal from a summary judgment of the District Court for the 

Twelfth Judicial District. The appeals originate from claims 

filed July 18, 1976, by members of retail clerks' union, 

local no. 57, for unemployment benefits claimed during a 

strike. 

The issue during the administrative process was whether 

a work stoppage occurred under section 39-51-2305, MCA. 

Benefits are denied during a period of strike if unemployment 

results from a "stoppage of work" existing because of the 

labor dispute. A deputy of the Employment Security Division 

(Division) of the Montana State Department of Labor and 

Industry found the claimants to be disqualified from benefits. 

Claiming strikers then brought appeal before an appeals 

referee of the Employment Security Division of the Department. 

The referee sustained denial of benefits. Claimants then 

appealed to the Board of Labor Appeals (Board) which reversed the referee and held claimants were entitled to 

unemployment compensation benefits. 

The Board of Labor Appeals served notice of its decision 

on January 10, 1978. On February 3, 1978, appellants filed 

petitions for review with the District Court of the Twelfth 

Judicial District. The petitions named as respondents, the 

Board of Labor Appeals, Montana State Department of Labor 

and Industry and the members of the Board. Following a 

motion to dismiss the petition, the appellants and counsel 

for the Employment Security Division entered into a stipulation to substitute the Employment Security Division of the 

Montana State Department of Labor and Industry for the Board 
of Labor Appeals. This stipulation was followed by a court 

order accomplishing such substitution. 

Neither the individual claimants nor the union were 

made parties to the review sought in District Court. Appellants, at time service was made upon the Board of Labor 

Appeals, did not provide sufficient copies to serve all 

persons whom might have been made parties. 

On March 20, 1978, the union moved to intervene in the 

proceedings. The answer alleged that the District Court had 

no jurisdiction because appellants had not joined the proper 

parties as designated by statute. Intervention was granted and 

thereafter both appellants and intervenor moved for summary 

judgment. The lower court concluded that failure to name all 

parties, together with failure to provide a sufficient 

number of copies of the petition for service upon all parties, 

were fatal jurisdictional flaws. Appellants' petitions for 

review were dismissed, and this appeal follows. 

The controlling statute is section 39-51-2410, MCA, 

which provides in pertinent part as follows: 

"(1) Any decision of the board in the absence of 

an appeal therefrom as herein provided shall become 

final 30 days after the date of notification or 

mailing thereof . . . The division shall be deemed 

to be a party to any judicial action involving any 

such decision and may be represented in any such 

action by an attorney employed by the division or 

at the division' s request, by the attorney general. 

" (2) Within 30 days after the date of notification 

or mailing of the decision of the board, any party 

aggrieved thereby may secure judicial review thereof 

by commencing an action in the district court of the 

county in which said party resides and in which action any other party to the proceeding before the 

board shall be made a defendant. In such action a 

petition, which need not be verified but which shall 

state the grounds upon which a review is sought, 

shall be served upon the administrator of the division or the administrator's designee and such service 

shall be deemed completed service on all parties, but 

there shall be left with the party so served as 

many copies of the petition as there are defendants 

and the division shall forthwith mail one such copy 

to each such defendant." 
Appellants made the Board of Labor Appeals of the 

Department a party instead of the Employment Security ~ivision of the same Department. Prior to July 1, 1977, the 

Board was the proper party, section 87-108 (2) (c) and - (d) , 

R.C.M., 1947, but on that date an amendment became effective 

which designated the Division as the proper party. 

The above quoted statute requires that in addition to 

the Division, any parties to the Board proceeding shall be 

made defendants. Though the claiming strikers were parties 

to the Board decision they were not named in the petition 

seeking review in the District Court. 

The issues presented in this appeal are: (1) Whether 

the petition for review "commenced" an action within the 

meaning of section 39-51-2410, MCA, when the Board of Labor 

Appeals was named as a party instead of the Employment 

Security Division. (2) Whether intervention by the union 

conferred jurisdiction over the individual claimants. (3) 

Whether, if intervention did not confer jurisdiction, the 

District Court can add parties after the 30-day period has 

run. (4) Whether review could be had against the Employment 

Security Division in the absence of the individual claimants. 

Respondent urges us to find appellants' timely filing 

void because the wrong party in the Department of Labor and 

Industry was originally named. Respondent contends that 

this technical approach is necessary to honor the literal 

statutory requirements for judicial review. We feel that to 

hold such a technical error defeated jurisdiction would be 

unconscionable elevation of form over substance. 

The position of respondent would be more sound if the 

Employment Security Division were a stranger to the Board of 

Labor Appeals. Of course, they are not. They are each 
housed within the same department of state government. The 

only entity is the State of Montana. Within the Department 

of Labor and Industry of that state government are located 

doors designated Board of Labor Appeals and Employment 

Security Division. The legislature determines which personnel 

can best deal with process. In point of fact, both the 

Board of Labor Appeals and the Employment Security Division 

were represented by the same counsel, Moody Brickett. ~rickett 

filed a motion to dismiss the petition for review in District 

Court appearing as counsel for the Board of Labor Appeals. 

The same Brickett entered into a stipulation on behalf of 

the Employment Security Division to substitute that Division 

as a party in place of the Board of Labor Appeals. Brickett 

further filed an answer on behalf of the Employment Security 

Division. 

Professor Moore articulates the need for avoiding 

hypertechnical judicial approaches: 

"As the Advisory Committee commented, hardships arising 

from mechanical applications of the Rules had arisen 

most acutely in suits by private parties against officers or agencies of the United States . . . where 

the claimants' need is often great, the applicable 

statutes or limitations relatively short, and 

choice of the proper individual defendant, who appears 

only as an official representative, is largely formal. 

With the potential for technical pleading errors growing along with the size and complexity of the bureaucracy 

itself, it was important to set up a definite, generous 

standard - - for handlins relation-back of corrective amendments . . f iculties 

a federal - 

Practice, 

. these amgndments --- to Rule 15 alleviate P dif- 

- 

in commencing or continuing an action against 

offnery . . ." ~oze's Federal 

Vol. 3, m5.15[4.2], pages 15-233, 234. 

(Emphasis added.) 

If this Court were to hold that appellants failed to 

name an adverse party under these circumstances, we would 

place Montana outside the philosophy of modern legal practice. 

Justice Benjamin Cardozo said, ". . . The law has outgrown 

its primitive stage of formalism when the precise word was 
the sovereign talisman, and every slip was fatal. It takes 

a broader view today . . ." Wood v. Lucy, Lady Duff-Gordon 

(1917), 222 N.Y. 88, 91, 118 N.E. 214, 214. The spirit of 

Cardozo lives in our procedural rules. We hold that the 

technical error was not fatal. 

It should also be noted that section 39-51-2410(1), MCA, 

states that the Division shall be deemed a party for judicial 

review. This occurs automatically by virtue of the statute 

so that it is a party whether or not named. Subsection (2) 

of that statute states that all parties to the Board proceeding 

shall be made parties to judicial review by the aggrieved 

party. The Division is not a party before the Board but 

becomes a party, for purposes of judicial review, by operation 

of law. 

The Employment Security Division itself consented to 

replace the misnamed Board of Labor Appeals. Under Rule 

15 (c) , R.R.Civ.P., the amendment to the petition for judicial 

review related back. 

We must confront the remaining questions in this appeal. 

Can unnamed parties be added after 30 days? Can this appeal 

proceed without those parties? 

Appellants argue that intervention by the union conferred 

jurisdiction. It did not. The answer raised lack of jurisdiction. The question presented is: Where a court acquires 

jurisdiction over one party to an appeal, can other parties 

be later added? 

Appellants argue the applicability of Rule 21, M.R.Civ.P., 

which provides that parties may be added or dropped at any 

stage of the proceeding. This rule presupposes - in personam 

jurisdiction. The rule does not confer that jurisdiction. 

Under section 39-51-2410, MCA, the decision of the 

Board became final as to claimants 30 days after notification 
of the decision. The District Court thereafter had no 

jurisdiction over claimants and could acquire none. 

The parties to the proceeding before the Board of Labor 

Appeals have separate and distinct identities. An appeal 

against one cannot affect the lower court's finding in favor 

of another against whom no appeal is taken. Surely, if five 

plaintiffs recover damage awards against a defendant, and 

that defendant timely appeals to the Supreme Court against 

only one, the remaining four cannot be added after expiration 

of time for filing a notice of appeal. Likewise, the individual claimants, against whom no review was timely 

sought, cannot later be added. 

If the presence of these absent claimants is indispensable 

to review, then appellants' petition must be dismissed. 

Provident Tradesmen B & T Co. v. Lumbermans Mut. Cas. Co. 

(3rd Cir. 1966), 365 F.2d 802. Oral argument devel-oped that 

claimants have been paid all benefits to which they are 

entitled by virtue of the Board decision. Appellants' 

petition for review seeks (1) a legal determination that 

there was a "work stoppage" and (2) reinstatement of the 

decision of the appeals referee. The presence of claimants 

would, of course, be necessary to any finding which could 

prejudice their previously paid benefits. Hanson v. ~enckla 

(1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. However, these same parties are not indispensable to a determination of the legal questions involved. 

Section 39-51-2410 (2), MCA, requires that all parties 

to the Board proceeding be made parties for purposes of 

review. This requirement presupposes issues on judicial 

review which could affect those parties. Under this holding, 

claimants' benefits cannot adversely be affected and, there- 
fore, claimants are not indispensable to a review of the 

legal questions by the District Court. 

A determination of the work stoppage issue under the 

facts of this case is important to the parties which remain 

in the review proceeding. The Employment Security Division 

filed an answer in the District Court denying petitioner's 

alleged "work stoppage" and asking that the decision of the 

Board of Labor Appeals be upheld. There is a sufficient 

justiciable controversy between appellants and the Employment 

Security Division to allow the review to go forward. 

We have rendered moot the question of service of copies. 

Sufficient copies were provided for service upon the Employment Security Division which is the only adverse party to 

appellant remaining in the judicial proceeding. 

We hold that the District Court may review the legal 

question of whether there was a "work stoppage" within the 

meaning of section 39-51-2410, MCA. The District Court can 

make no determination which could in any way jeopardize the 

benefits previously paid to claimants. 

We remand the case to the District Court for such hearing as is necessary to determine whether there was a work 

stoppage. 

We concur: 

Chief Justice 

Justice 
Justices 
Mr. Justice John C. Sheehy concurring and dissenting: 

I agree that the District Court acquired no jurisdiction. 

I .disagree there is anything left in the case to litigate on 

remand. 

My careful reading of the majority opinion does not 

disclose clearly what the majority Is up to. The apparent 

result, which may seem preposterous, is that the cause is 

remanded to the District Court on the issue of work stoppage 

without an adversary party, the claimants. Moreover, the 

work stoppage issue on remand is to be litigated between the 

agency on the one side and the appellafits on the other. Yet, 

these two parties, at all stages subject to review, agreed 

that a work stoppage due to a labor dispute had occurred. 

The agency twice has held against the claimants on that 

issue. There is no dispute between the appellants and the 

agency to litigate on remand. 

In addition, the issues stated and discussed in the 

majority opinion are not precisely the issues that were 

raised by the appellants in their briefs and oral argument. I 

This is true particularly of the majority opinion's fourth 

issue: whether review could be had against the Employment 

Security Division (Division) in the absence of the individual 

claimants. This issue, if it is an issue, arises because of 

an untutored answer made by appellants' counsel to a question 

posed by a justice during the oral argument of this cause. 

When counsel was asked if he was seeking to continue the 

case against the Division, counsel replied that litigation 

against the Division might help with respect to the retrospective 

rating of the appellants on their unemployment compensation 

contributions. That answer was incorrect since the claimants 

here already received their benefits, and the payment of 
those benefits determines the appellants "experience factor" 

and are now chargeable to the appellants' accounts. Section 

39-51-1215, MCA. 

Because the issues raised and discussed in the majority 

opinion differ from those raised in the appellants' briefs, 

it is worthwhile to discuss the appellants' issues here. 

The issues raised by the appellants are: 

1. Whether the District Court had jurisdiction to 

review the actions of the Board of Labor Appeals (Board); 

2. Whether the intervening union had standing to move 

to dismiss the petitioner's appeals; 

3. Whether the District Court abused its discretion by 

failing to relax the statutory directives on appeal in this 

instance. 

The appellants contend that the District Court erred in 

misinterpreting section 39-51-2410, MCA, the judicial review 

statute, quoted above in the court's memorandum. They 

contend that by "commencing an action" for review, the 

District Court became vested with jurisdiction. They emphasize 

the language of the review statute that "any party may 

secure review by commencing an action" within 30 days of a 

Board decision. Appellants argue the statute's requirement 

that the unemployment compensation claimants be named as 

respondents in the review petition is not a jurisdiction 

requisite but only procedural. They argue the claimant 

strikers can be made party defendants under the joinder 

provisions of the Montana Rules of Civil Procedure. They 

cite cases decided by United States Supreme Court to indicate 

that a reviewing court must be presented with clear and 

convincing evidence of no jurisdiction to justify a dismissal 

of a review petition on jurisdiction grounds. See, Abbott 
Laboratories v. Gardner (19671, 387 U.S. 136, 87 S.Ct. 

1507, 18 L.Ed.2d 681. The appellants contend that a timely 

petition was filed in the District Court; that judicial 

review is favored in this instance and that joinder of 

claimants or intervenor is possible under Rules 19 and 21, 

M.R.Civ.P. 

On the other hand, the union argues that the District 

Court had no choice but to dismiss for lack of jurisdiction. 

It contends that the failure to name and serve the claimants 

with a copy of the petition constitutes a failure by appellants 

to assert the District Court's jurisdiction over the claimants. 

It asserts that failure to join the claimants as indispensable 

parties in an action for review of an agency proceeding 

requires dismissal. Cissell v. Colorado State Bd. of 

Assessment App. (1977), 38 Colo.App. 560, 564 P.2d 124. The 

union further argues that the appellants may not now amend 

their review petition to add the claimants as parties because 

the 30-day time limit for naming claimants as respondents 

has expired. 

The major issue here is whether the District Court had 

jurisdiction to review the decisions of the Board. The 

District Court held that the statutorily-imposed conditions 

for jurisdiction were not satisfied by petitioning parties, 

and therefore, the court had no power to review the agency's 

decisions. The court was correct. 

Jurisdiction should not be assumed lightly. The enablement of the District Courts to adjudicate controversies is 

delimited by the sovereign grant of power to the courts found 

in our state constitution and in statutory law. "Jurisdiction" 

means the right and authority of a court to adjudicate the 

subject matter of the case and to make binding decisions 
thereon. State v. Bonner (1950), 123 Mont. 414, 214 P.2d 

747. The essential elements of jurisdiction are that the 

court have authority to take cognizance of the class of 

cases to which the adjudged case belongs; that proper parties 

be present, and that the point decided be within the issue 

presented. Deich v. Deich (1958), 136 Mont. 566, 323 P.2d 

35. In that sense, courts are mere creations and instruments 

of the law; independent of the law, they have no adjudicatory 

existence. The law precedes and governs a court. Bond v. 

Birk (1952), 126 Mont. 250, 247 P.2d 199. 

The 1972 Mont. Const., Art. VII, § 4, provides that the 

legislature may provide for a direct review by District 

Courts of decisions of administrative agencies. Section 39- 

51-2410, MCA, was enacted under that constitutional grant, 

and operates to give statutory power to District Courts to 

hear cases of the nature involved here. The District Court 

here has the judicial power to adjucate such petitions for 

review. Without such statutory grant, the District Court 

would be without subject matter jurisdiction, which even 

consent could not confer. Stanton Trust & Savings Bank v. 

Johnson (1937), 104 Mont. 235, 65 P.2d 1188. 

A court having jurisdiction of the subject matter must 

further acquire jurisdiction of the parties. Jurisdiction 

of the court over persons may be compelled by the plaintiff's 

(or petitioner's) action or may be voluntarily conferred by 

the defendant's (or respondent's) consent and submission to 

the court. Haggarty v. Sherburne Mercantile Co. (1947), 

120 Mont. 386, 186 P.2d 884. 

The power to review decisions of the Board is governed 

by the particular provisions of section 39-51-2410, MCA, 

which must be followed in seeking review, especially those 
particulars which are jurisdictional or mandatory. This 

means that in seeking judicial review by commencing an 

action, "any other party to the proceeding before the Board 

shall be made a defendant" is a jurisdictional element. 

This is consistent with the ordinary perception of jurisdiction 

not only of this Court, but all courts. 

We would not contend, in these days of omnipresent 

office copying machines, the failure to provide the Board 

with enough copies of the petition to serve all the defendants 

is essential, but any fair reading of section 39-51-2410(2), 

MCA, must lead to the conclusion that making "any other 

party" a defendant to the action before the Board is a 

mandatory elemental step to secure the right of review. 

As we have noted, one of the elements of jurisdiction 

is the power to make binding orders over proper parties present 

and subject to the court. Here, the unemployment compensation 

benefits claimants, the en:ployees, were not before the 

District Court. The appellants could have compelled their 

submission to the power of the District Court, on review, by 

naming them as respondents under section 39-51-2410, MCA, but 

did not do so. The claimants have not consented to the 

jurisdiction of the District Court. Therefore, the District 

Court further lacked jurisdiction of the claimants, the very 

persons the adjudication was bound to affect. 

The appellants next contend that the intervenor union 

lacked standing to raise the jurisdiction defense. They 

contend that the intervenor must accept all prior court orders 

at the time of intervention, which in this case, included 

the stipulation between the appellants and the Division providing 

that issuance and service of process upon the Division had 

been made pursuant to the judicial review statute. Appellants 
also contend that the intervention by the union constituted 

a general appearance which cured any jurisdiction defect in 

their failing to name the c1ai:mants as party defendants to 

the action for review. 

As the first caption of the petitions for review disclose, the appellants did not make the intervenor or the 

claimants parties to the actions; nor in fact did the appellants 

make the Division a party to the action. The answers to the 

appellants' contentions regarding the union's standing to 

raise the jurisdiction issue lie to some extent in our 

foregoing discussion of the elements of jurisdiction. At 

the time that the order for intervention was granted, the 

District Court was without jurisdiction because the procedural 

steps necessary to vest the District Court with jurisdiction 

to review had not been followed. A party contesting jurisdiction 

may do so under our rules without filing a special appearance. 

With regard to - in personam jurisdiction, we stated in Knoepke 

v. Southwestern R:?. Co. (1980), - Mon t . - , 620 P.2d 1185, 

37 St.Rep. 1910, the following: 

"If a party to a lawsuit plans to appear in 

court to attack the court's personal jurisdiction, a special appearance of the party, 

as opposed to a general appearance, is no 

longer required. Rule 12, M.R.Civ.P., abolished 

the distinction between special and general 

appearances. Following service of process 

a party can attack the court's personal jurisdiction simply by raising the jurisdiction issue 

in an initial response to plaintiff's claim 

by motion before answering the claim or in an 

answer to the claim. If the party's initial 

response to the opponent's claim raises a 

personal jurisdiction issue, then the party 

is not subject to the general power of the 

court solely because of the response. See, 

2A Moore's Federal Practice 1 12.12. " 

In its initial response to the petition for review, the 

union, by means of affirmative defenses, raised the jurisdiction issue. It did not waive the right to raise such an 
issue by moving to intervene in the action, or securing an 

order permitting intervention. The stipulation entered into 

between the Division and the appellants, and the court order 

approving that stipulation, which affected only the Division, 

was not in any way binding on either the union or the claimants 

who were not parties to the stipulation. Neither the stipulation 

nor the court order approving the same cured the jurisdiction 

defect that the elemental procedures required under section 

39-51-2410, MCA, had not been followed. 

The third issue raised by appellants is that the District 

Court abused its discretion by failing to relax the statutory 

directives necessary to perfect the appeals in this instance. 

The appellants did not, by raising this issue admit the 

propriety of the summary judgments by the District Court, 

but raised the issue arguendo. 

The appellants submit that section 39-51-2410, MCA, 

grants them the right to an appellate review and that the 

District Court should have considered the willfulness and 

the extent of the Rules violation and the possible injustice 

that might result from the summary judgment order. The 

appellants further contend that although this Court has not 

yet considered the relaxation of such judicial review requirements in an administrative setting, this Court has consistently 

exercised its inherent judicial discretion to relax jurisdiction 

requirements in appeals from the District Courts to the 

Supreme Court. 

In support of the contention on relaxation of rules for 

appeals the appellants cite State ex rel. Helena Adjustment 

Company v. District Court of Lewis and Clark County (19321, 

92 Mont. 587, 19 P.2d 226; Krause v. Insurance Co. of North 

America (1925), 73 Mont. 169, 235 P. 406; Lewis v. Lambros 
(1922), 65 Mont. 366, 211 P. 212; and Stephens v. Conley 

(1914), 48 Mont. 352, 138 P. 189. 

In those cases will be found language that does indicate 

support for the claim of the appellants. For example, in 

S&phens v. Conley, supra, this Court stated that a notice of 

appeal does not serve any higher purpose than a summons, and 

its entire absence can be waived. In Krause v. Insurance 

Company of North America, supra, it was held that substantial 

compliance with appeals statutes is all that is required; 

moreover, the law favors the right of appeal. 

It should be recognized by practitioners in this State, 

particularly since the adoption of the Montana Rules of 

Appellate Civil Procedure in 1965, that this Court has 

strongly stated that a timely filing of a notice of appeal 

is mandatory to vest this Court with jurisdiction. 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 the 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." 

In recent years, we have regarded the taking of that 

step, the timely filing of a notice of appeal, as the sine 

-- qua non to our jurisdiction. We have dismissed appeals 

where the notice of appeal has not been timely filed. See, 

Snyder v. Gommenginger (1979), - Mont. - , 600 P.2d 171, 

36 St.Rep. 1426; Flathead Hay Cubing, Inc. v. Moore (19781, 

- Mont . -1 - P.2d - , 35 St.Rep. 1260; First Nat. 

Bank of Lewistown v. Fry, (1978), Mont. - , 575 P.2d 1325, 

35 St-Rep. 276; Zell v. Zell (1977), 172 Mont. 496, 565 

P.2d 311. In Snyder, we quoted from Payne v. Mountain 
States Tel. and Tel. Company (1963), 142 Mont. 406, 385 

P.2d 100, to the following effect: 

"In our view, these statutes do not have 

reference to the notice of appeal which is 

jurisdictional. In such cases as Creek v. 

Bozeman Water Works Co., 22 Mont. 327, 56 

P. 362, and In Re Malick's Estate, 124 Mont. 

585, 228 P.2d 963, we have held that the 

appellant is charged with the duty of perfecting 

his appeal in the manner and within the time 

provided by law and unless such mandatory statutory 

provisions are complied with this court acquires 

no jurisdiction to entertain and determine the 

appeal. We are of the opinion that the 'amending 

provisions' contained in sections 93-8019 and 

93-8021 apply only when this court has acquired 

jurisdiction. Were it otherwise, our mandatory 

provisions regarding appellate procedure would be 

meaningless." 

(Sections 83-8019 and 93-8021, R.C.M. 1947, above referred 

to, were superseded by the adoption of the Montana Rules of 

Appellate Civil Procedure in 1965. Those sections related 

to defects in the record which could be cured by an amendment 

following the notice of appeal, under the former statutory 

appellate practice.) 

In a recent case involving the perfection of an appeal 

to the District Court from an administrative agency, Rierson 

v. State (1980), Mont. - , 614 P.2d 1020, 37 St.Rep. 

627, we had before us an appeal from an administrative 

agency under the general provision for judicial review from 

administrative agencies, section 2-4-702, MCA. That statute 

provides that in seeking review, the party must file a 

petition in the District Court within 30 days from the 

service of the final decision of the agency and it further 

provides that "copies of the petition shall be promptly 

served upon the agency and all parties of record." In 

Rierson, the decision hinged upon whether Rierson had "promptly" 

served copies of his petition for review. The decision of 

the majority of this Court against Rierson was based largely 
upon his laches in not serving the copy of the petition for 

review promptly, but inherent in the decision of the court 

is the sense that compliance with the review provisions 

necessary to vest jurisdiction in the District Court is 

mandatory. 

The appellants contend that under Rule 61, M.R. Civ.P., 

the court had the power to disregard any error or defect in 

the proceeding which does not affect the substantial rights 

of the parties. Appellants argue that since the union 

intervened, and was before the District Court, no substantial 

prejudice resulted to the unnamed parties arising out of the 

failure to name them as party defendants and so the District 

Court in the exercise of its discretion could disregard 

defects in the steps taken by the appellants to seek judicial 

review. The appellants also contend that the court could 

have required the joinder of the unnamed parties under Rule 

19, M.R.Civ,P., and that the pleadings thereafter could 

relate back to the commencement of the action under Rule 

15(c), 1fl.R.Civ.P. 

The appellants cite Professor Moore's treatise with 

respect to the reasonableness of the relation-back of corrective 

amendments under Rule 15. 3 Moore's Federal Practice, 11 

15.15 [4.1] . We disagree. 

This is a case where we must put aside our personal 

inclinations respecting our preference for decisions on the 

merits, in the interest of consistency with respect to previous 

decisions regarding appellate jurisdiction both from ~istrict 

Courts to this Court, and from administrative agencies to 

the District Courts. When statutes provide for review from 

an administrative agency, or from a lower court, and set forth 

the procedures necessary to obtain such review; including the 
essential steps with respect to the notice to be given, the 

time for such notice and the parties to be named or served; 

the statutory procedure constitutes jurisdiction guides whic3 

must be followed to vest authority in the reviewing or 

appellate tribunal. Indeed, the presence of the requirements in the statutes gives us no other choice, because it 

is only by virtue of statutes that the appellate adjudicatory 

power or reviewing power vests in the other tribunal, as we 

have indicated foregoing in our discussion of jurisdiction. 

The District Court in these cases, after examining 

carefully the defects in the procedure taken for review, 

as is shown from its memorandum aforementioned, had no 

discretion to overlook the defects. The court had no jurisdiction 

to act, and no discretion to waive the jurisdiction 

defects. 

My final observation is that the Division may be surprised 

to find itself still in the case on remand to the District 

Court. On September 29, 1980, it had filed its written 

notice with this Court that it was not taking a position on 

the jurisdiction dispute between the appellants and the 

intervenor union, and that it would continue in such position 

and not submit a brief on the jurisdiction question presented 

here. 

I would affirm the dismissal by the District Court of 

the petitions for review. 

u Justice v 
We concur in the foregoing concurring and dissenting 

opinion. 

Chief Justice \ 

Justice