### No. 81-556 INTHE SUPREMECOURTOF 

### THE STATEOFMONTANA 1382

JOHNWALLINDER, Plaintiffand Respondent,

-vsGLENNLAGERQUIST,etal., Defendants andAppellants.

Appeal fron: DistrictCourtof the Eighth Judicial District, Inand for the Countyof Cascade, TheHonorable H. William Coder, Judgepresiding.

Counselof Record: ForAppellants: Paul G 

### Paul; John

### P. Paul,Great Falls,Montana For Respondent: 

### Asselstine & 

### Cruikshank, Great Falls,Montana

SubmittedonBriefs: July 2, 1982 Decided: November 10,1982Mr. JusticeFred J. Weber delivered theOpinion of the Court.

This is an appeal from the orderof the District Court of the Eighth Judicial District for the County of Cascade inwhich 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. Weaffirmthe 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 inthe original complaint. The original complaint alleged thatplaintiff 

### 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 forpayment and refusal to pay. Inresponse 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, eitherindividuallyor asjoint tenants, 

### or as tenants 

### in common, own 49 percent of the issued and outstanding capital shares of Western Automotive Sales and Service, Inc

# .

[oneof named defendants]

# ."By order dated May 13, 1981, the District Court authorized the filingof 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)rM.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 thatmotions 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, fellon


### 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 forhearing on July 17, but there being a conflict in the court's calendar, the matter was vacated and reset forOctober 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 pursuantto 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 DistrictCourt err in denying Marchwicks1 Rule 60(b)motion tovacate the defaultjudgment? (2) Did the District Court 

### err in finding that Grace Marchwick had been personally served and that the court had personaljurisdiction overher? 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 excusableneglect

# ..

# ."

The timerequirements 

### are set forth inRule 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 fornew trials

# .

# .." The keyprovisions on timeas tothis

### case, are set forthinRule 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 expirationof saidperiod, 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 

### isrequired to be held under this Rule 59." (Underscoringadded.) In this case, the Marchwicks properly made their motion and served the 

### same, with hearing initially set for July 6. That hearingwascontinued toJuly17

## ,using eleven of the thirtydays allowed under Rule 59 for a continuance. On July 17, the District Court had thepower under Rule 59 

### to continue again for

a maximum of nineteen days, but instead continued the hearing to October 7. By waiting untilOctober 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. InOstera hearing 

### was set forFebruary7. Due toweather, theDistrict Courtwasunable 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 (inthe Oster 

### case the motion 

### was for a new trial

## ,but

### was controlledby Rule 59) thisCourt 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. "InCain v. Harrington (1973), 161Mont. 401, 506 P.2d 1375, this Court considered Rule 59 ina similar context. We stated: i"We believe thepurpose of the rule shouldbe adhered to and while 

### we do not wish to be technical, at the 

### same time 

### we cannot permit deviations. (Citationomitted.) "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. at267-268. 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 itsjurisdiction to grant the motion, regardless of its view of the validity of the reasons urged. In another recent case of difficultywith these rules, Winn v. Winn (1982), Mont

# . I

-- P.2d 

## , 39 St.Rep. 1831, 1835-1836, thisCourt stated withregard tothe

### matter of jurisdiction: "That the parties may have stipulated the jurisdiction of the District Court, or may have agreed not 

### to raise the questionof lack of jurisdiction, does not confer jurisdiction on the District Court todecide 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 consentof the parties. Corban v. Corban (1972), 161Mont. 93, 504 P.2d 985." In the present case, following the improper order continuing themotion toOctober 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 SteelBldg. 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 at382, 37 St.Rep. at1672. In a 

### similar fashion, the order of October 20, 1981, 

### also 

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

### tomake thatorder. 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 thirtydays. Asa result, when the thirty day period ended on August 5, 1981, under Rule 59(d), as interpreted by thisCourt, themotion wasdeemed denied. Atthat 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 30days from the entrythereof 

# .

# .. "The running of the 

### time for filing a notice of appeal is suspended as to allparties by 

### a timely motion filed in the district court by any party pursuant 

### to the Montana Rules ofCivil 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 alteroramend the judgment

# ."

Aspointed outby thisCourt inMarvel Brute SteelBldg. amotion -- - fornew trialoramotion tovacate a defaultjudgment under Rule 60(b)made pursuant toRule 59(d)stopsthe running of the thirty day period for an appeal. The thirty day period startsrunning 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 tohear the appeal. Warning. We renew the warning previously stated in recent -- cases by thisCourt. Attorneys and ~istrict Courtsmust keep in mind the very real risks involved in the applicationof Rules 59 and 60, M.R.Civ,P. These rules are significantlydifferent from the companion rules in the Federal Rules of CivilProcedure. The Montana Rules aremuch 

### stricter. Asdemonstrated here, a failure tocomply results in a lossof 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 Lagerquisthad advised Mr. Marchwick thathe would take care of handling all of the matters required; and furtherthat 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; defaultjudgment was entered onlyagainst the Marchwicks and not theotherdefendants, raising a questionas 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 gainpersonal jurisdiction over her. The District Court reached its conclusion that Grace Marchwick had been properly served only after a hearing inwhich the District Court acted as the finder of fact, following the presentation of testimony and other evidence inbehalf 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 clearlyerroneous, and due regard shall be given to the opportunity of the trial court tojudge of the credibilityof 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 thatthis finding of fact on the part of the District Court cannot be set asidebecause it is not clearlyerroneous. Wetherefore close with thewarning thatRules 59 and 60must be carefully followed by counsel and the trial courts, otherwise additional cases will be dismissed without trial on the 

### merits. Affirmed.We Concur:



### Chief Justice