No. 81-556 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1382 

JOHN WALLINDER, 

Plaintiff and Respondent, 

-vsGLENN LAGERQUIST, et al., 

Defendants and Appellants. 

Appeal fron: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellants: 

Paul G Paul; John P. Paul, Great Falls, Montana 

For Respondent : 

Asselstine & Cruikshank, Great Falls, Montana 

Submitted on Briefs: July 2, 1982 

Decided: November 10, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the order of the District Court of the 

Eighth Judicial District for the County of Cascade in which the 

court concluded that defendant, Grace Marchwick, had been personally served so the court had personal jurisdiction over her, 

and in which the court denied defendants' Rule 60(b) motion to 

vacate default judgment because of mistake, inadvertence, 

surprise and/or excusable neglect, because the court lacked 

jurisdiction. We affirm the District Court. 

John Wallinder (plaintiff) filed an original complaint 

which alleged that he was employed as a truck driver by the 

defendant, Glenn Lagerquist, either individually or as an 

authorized agent of one or more of the named defendant corporations. The defendants, Donald Marchwick and Grace Marchwick 

(Marchwicks), were not named as parties defendant in the original 

complaint. The original complaint alleged that plaintiff was to 

be paid 20 percent of the amount received by various of the 

defendants plus expenses incurred in the operation of a truck. 

Plaintiff also alleged a demand for payment and refusal to pay. 

In response to the original complaint, Lagerquist, pro se, filed 

an answer in behalf of all of the defendants (not including 

Marchwicks ) . The answer contained denials, allegations of 

payments, and ultimately concluded by claiming a balance due 

plaintiff of $75.09. Plaintiff then made a motion for judgment 

on the pleadings but did not call that motion up for consideration, so it was not ruled upon by the court. 

On April 24, 1982, plaintiff filed an amended complaint with 

allegations substantially identical to those in the original 

complaint, with the exception that it added the Marchwicks as 

parties defendant and added the following paragraph: 

"That Donald Marchwick and Grace Marchwick, 

either individually or as joint tenants, or as 

tenants in common, own 49 percent of the 

issued and outstanding capital shares of 

Western Automotive Sales and Service, Inc . [one of named defendants] ." 
By order dated May 13, 1981, the District Court authorized the 

filing of the amended complaint. Service was made personally on 

the Marchwicks on May 26, 1981, although Grace Marchwick contested the personal service. Request to enter default was filed 

on June 17, 1981. Default judgment was entered against only 

defendants Marchwicks on June 18, 1981, in the amount of 

$5,572.20, plaintiff's costs and disbursements of $112, and 

attorney's fees of $1,142.50, making a total of $6,826.70. No 

judgment was entered as to any of the other named defendants. 

On June 25, 1981, seven days after the entry of default 

judgment, defendants Marchwicks, moved the court for an order 

vacating the default judgment under Rule 60(b)(l)r M.R.Civ.P., 

for the reasons of mistake, inadvertence, surprise and/or excusable neglect, and also moved for an order setting aside the 

judgment against Grace Marchwick for the reason that she was not 

properly served. By order dated June 26, 1981, the District 

Court set the motion for hearing on July 6, 1981. Rule 60(c) 

provides that motions under Rule 60 (b) are to be heard and determined within the times provided by Rule 59. Rule 59 requires a 

hearing on a motion to be had in ten days after it has been 

served. In this case, the tenth day from June 26, 1981, fell on 

a Sunday so that July 6, 1981, was proper under Rule 6 (a). By 

stipulation, the court entered its order of July 6, 1981, continuing the hearing on Marchwicks' motion to July 17, 1981. By 

order dated July 17, 1981, the District Court stated that the 

motion had been previously set for hearing on July 17, but there 

being a conflict in the court's calendar, the matter was vacated 

and reset for October 7, 1981. On October 7, a hearing was held 

with testimony being presented and by order dated October 20, 

1981, the District Court found that Grace Marchwick was personally served with a copy of the summons and complaint. The 

court further ordered that the motion of the Marchwicks for 

relief under Rule 60(b) was denied as the court lacked jurisdiction to grant such relief because the time for hearing pursuant 
to Rule 59 had passed prior to the hearing date. By notice of 

appeal dated November 12, 1981, Marchwicks appealed the October 

20, 1981, order. 

The issues are: 

(1) Did the District Court err in denying Marchwicks1 Rule 

60(b) motion to vacate the default judgment? 

(2) Did the District Court err in finding that Grace 

Marchwick had been personally served and that the court had personal jurisdiction over her? 

Unfortunately, neither counsel for the parties nor the lower 

court complied with the express requirements of Rules 60(b) and 

59. The result is that the default judgment will stand without 

trial on the merits. The motion of the Marchwicks under Rule 

60(b) was sufficient in form. In pertinent part, Rule 60(b) 

provides : 

"On motion and upon such terms as are just, 

the court may relieve a party . . . from a 

final judgment . . . for the following 

reasons : 

" (1) mistake, inadvertence , surprise, or 

excusable neglect . . ." 

The time requirements are set forth in Rule 60 (c) which provides : 

"Motions provided by subdivisions (a) and (b) 

of this rule shall be heard and determined 

within the times provided by Rule 59 in the 

case of motions for new trials . . ." 

The key provisions on time as to this case, are set forth in Rule 

59(d) as follows: 

"Hearing on the motion shall be had within 10 

days after it has been served . . . except 

that at any time after the notice of hearing 

on the motion has been served the court may 

issue an order continuing the hearing - for -- not 

- to exceed 30 days. In case the hearing is -- -- continued by the court, it shall be the duty 

of the court to hear the same at the earliest 

practicable date thereafter . . , If the 

court shall fail to rule upon the motion 

within said time, the motion shall, at the 

expiration of said period, be deemed denied. 

"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." 

(Underscoring added. ) 

In this case, the Marchwicks properly made their motion and 

served the same, with hearing initially set for July 6. That 

hearing was continued to July 17 , using eleven of the thirty days 

allowed under Rule 59 for a continuance. On July 17, the 

District Court had the power under Rule 59 to continue again for 

a maximum of nineteen days, but instead continued the hearing to 

October 7. By waiting until October 7, counsel and the District 

Court placed the motion beyond the jurisdiction of the court. 

This case is similar to Oster v. Oster (1980)r Mont . 

-- , 606 P.2d 1075, 37 St.Rep. 264. In Oster a hearing was set 

for February 7. Due to weather, the District Court was unable to 

get to the hearing and the matter was continued to March 19, at 

which time the hearing was held. In holding that the motion 

could not be granted (in the Oster case the motion was for a new 

trial , but was controlled by Rule 59) this Court said: 

"Rule 59(d) says that a hearing on a motion 

for a new trial shall be had within ten days 

after the motion has been served, except that 

the court may continue the hearing not to 

exceed 30 days. If the court fails to rule 

upon the motion within the time given under 

Rule 59(d) then the motion shall be deemed 

denied. In the present case, the motion was 

made on January 25, but the hearing was not 

had until March 19. This is more than the 

time allowed under the rule. 

"In Cain v. Harrington (1973), 161 Mont. 401, 

506 P.2d 1375, this Court considered Rule 59 

in a similar context. We stated: 

i"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. (Citation omitted. ) 

"The District Court in the present case was 

correct in ruling as it did. The District 

Court - had -- no - jurisdiction to grant a new trial 

under Rule 59. " (Underscoring added. ) 606 

P.2d at 1078, 37 St.Rep. at 267-268. 

In this case we find a directly comparable fact situation. 

The District Court here continued the hearing to October 7 and 

counsel concurred in that order. When the time allowed for a 

continuance under Rule 59 expired, the District Court lost its 
jurisdiction to grant the motion, regardless of its view of the 

validity of the reasons urged. In another recent case of difficulty with these rules, Winn v. Winn (1982), Mont . I 

-- P.2d , 39 St.Rep. 1831, 1835-1836, this Court stated 

with regard to the matter of jurisdiction: 

"That the parties may have stipulated the 

jurisdiction of the District Court, or may 

have agreed not to raise the question of lack 

of jurisdiction, does not confer jurisdiction 

on the District Court to decide a case beyond 

the time limitations expressly provided by 

Rule 59, M.R.Civ.P. Marvel Brute Steel 

Building v. Bass (1980), Mont . , 616 

P.2d 380, 37 St.Rep. 1 A courtwhich 

lacks jurisdiction cannot acquire it by consent of the parties. Corban v. Corban (1972), 

161 Mont. 93, 504 P.2d 985." 

In the present case, following the improper order continuing 

the motion to October 7 , the hearing was held and the court did 

make its order denying the motion dated October 20, 1981. That 

is comparable to -- Marvel Brute Steel Bldg. where the court stated: 

"Even though the trial court issued an order 

on May 15, 1979 denying the defendants1 

motion for a new trial, the order was a 

nullity because it was issued after the time 

had expired under Rule 59, within which to 

rule on a motion for new trial. We have 

repeatedly held that the time and procedural 

limitations for post-judgment motions under 

Rule 59 are mandatory (citations omitted)." 

616 P.2d at 382, 37 St.Rep. at 1672. 

In a similar fashion, the order of October 20, 1981, also was a 

nullity, as it was beyond the jurisdictional power of the court 

to make that order. 

We therefore find in the present case that on July 6, the 

District Court had the authorization to continue the hearing for 

a period not to exceed thirty days. As a result, when the thirty 

day period ended on August 5, 1981, under Rule 59(d), as 

interpreted by this Court, the motion was deemed denied. At that 

point, Rule 5, Mont .R.App.Civ.P. applies. Rule 5 states : 

"The time within which an appeal from a 

judgment or an order must be taken shall be 

30 days from the entry thereof . . . "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: . . . (3) granting or denying a motion under 

Rule 59 to alter or amend the judgment ." 

As pointed out by this Court in -- Marvel Brute Steel Bldg. a motion - 

for new trial or a motion to vacate a default judgment under Rule 

60(b) made pursuant to Rule 59(d) stops the running of the thirty 

day period for an appeal. The thirty day period starts running 

after the trial court has entered its order denying the motion 

after hearing. In the absence of a determination by the court 

within the time periods involved, the motion is considered or 

deemed denied, and the appeal time starts running. Here the 

appeal time started running on August 5 and terminated thirty 

days thereafter. The result is that the appeal was not filed 

within the allowable time period and this Court does not have 

jurisdiction to hear the appeal. 

-- 

Warning. We renew the warning previously stated in recent 

cases by this Court. Attorneys and ~istrict Courts must keep in 

mind the very real risks involved in the application of Rules 59 

and 60, M.R.Civ,P. These rules are significantly different from 

the companion rules in the Federal Rules of Civil Procedure. The 

Montana Rules are much stricter. As demonstrated here, a failure 

to comply results in a loss of jurisdiction and inability of the 

trial court and this Court to consider questions raised on the 

merits. 

This case demonstrates the possibly inequitable results from 

a failure to comply with these rules: The complaint against the 

Marchwicks in substance stated only that they were 49 percent 

stockholders in a defendant corporation, but otherwise failed to 

state a claim for relief against the Marchwicks; the affidavits 

filed in behalf of the Marchwicks indicated that Mr. Marchwick 

had advised Lagerquist promptly upon service of summons and 

complaint, and Lagerquist had advised Mr. Marchwick that he would 

take care of handling all of the matters required; and further 
that both Mr. and Mrs. Marchwick signed an answer prepared by 

Lagerquist which was not filed in this case, but which led the 

Marchwicks to believe that everything had been taken care of; 

default judgment was entered only against the Marchwicks and not 

the other defendants, raising a question as to the equity of this 

action; and finally the District Court obviously thought it had 

the power to continue the hearing to October and having done so 

without opposition by counsel, the jurisdiction of the court was 

eliminated. 

In the second issue plaintiff argues that the evidence in 

behalf of Grace Marchwick shows that she had not been personally 

served and that as a result the District Court did not gain personal jurisdiction over her. The District Court reached its 

conclusion that Grace Marchwick had been properly served only 

after a hearing in which the District Court acted as the finder 

of fact, following the presentation of testimony and other evidence in behalf of both sets of parties. The standard of review 

is set forth in Rule 52(a), M.R.Civ,P., as follows: 

"Findings of fact shall not be set aside 

unless clearly erroneous, and due regard shall 

be given to the opportunity of the trial court 

to judge of the credibility of the witnesses ." 

The transcript does disclose a direct contradiction in the evidence on the question of service. However, there is substantial 

evidence in the record to support the finding of personal service. As a result, we conclude that this finding of fact on the 

part of the District Court cannot be set aside because it is not 

clearly erroneous. 

We therefore close with the warning that Rules 59 and 60 must 

be carefully followed by counsel and the trial courts, otherwise 

additional cases will be dismissed without trial on the merits. 

Af f irmed. 
We Concur: 

Chief Justice