No. 80-239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN THE MATTER OF THE ESTATE OF 

FRANCIS A. GORDON, a/k/a 

FRANCIS GORDON, a protected person. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, The Honorable 

Frank Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hooks and Budewitz, Townsend, Montana 

For Respondent : 

Richard J. Llewellyn, Helena, Montana 

W. G. Gilbert, 111, Dillon, Montana 

Submitted on Briefs: March 25, 1981 

Decided : Jubl 4 1981 

Filed : dy# 4 198; 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This case involves appeals by all parties involved in 

these proceedings. Albert and Emily Gordon, parents of 

Francis Gordon and one time conservators of his estate, 

appeal from a finding and order of contempt entered by the 

Beaverhead County District Court (Gordon appeal). An 

attorney, W. G. Gilbert 111, acting in behalf of Francis 

Gordon, appeals the court's order of a new trial to 

redetermine the amount of attorney fees due from his 

representation of Francis Gordon (Gilbert appeal). A third 

appeal has been filed by Richard Llewellyn, the current 

conservator of Francis Gordon's estate. This appeal is 

explained in the conservator's brief as being brought in 

opposition to the order for a new trial regarding Gilbert's 

attorney fees and in support of the court's contempt order. 

In 1976 Albert and Emily Gordon were appointed by the 

District Court to act as conservators of the estate of their 

son, Francis Gordon. In March 1978 Francis Gordon 

petitioned the District Court and demanded that Albert and 

Emily, as conservators, file a sworn accounting showing all 

receipts and disbursements of the conservatorship. Albert 

and Emily failed to appear at the hearing on the petition 

whereupon the court ordered the accounting be filed within 

ten days and that the conservators appear before the court 

and show cause why they should not be removed from their 

position. 

A show cause hearing was held on July 25, 1978. 

Subsequently, the District Court, on September 26, 1978, 

entered findings of fact, conclusions of law and an order 

removing Albert and Emily as conservators. The court 
further ordered the Gordons to file a full, complete and 

accurate accounting of all monies received during their 

conservatorship; to pay the clerk of the court (interim 

conservator) within ten days certain sums of money 

improperly withheld from or charged to Francis Gordon; and 

to pay attorney fees to W. G. Gilbert 111, attorney for 

Francis Gordon. The amount of attorney fees were to be 

determined at a later hearing. 

On December 18, 1978, Gilbert filed two claims 

against the estate of Francis Gordon for legal services 

rendered and expenses incurred in the representation of 

Francis Gordon. These claims totaled $4,721.17. Failing to 

have the claims satisfied within sixty days, Gilbert filed a. 

motion on June 18, 1979, to compel payment by the newly 

appointed temporary conservator, Irene Newlon. Hearing on 

the motion was scheduled for July 10, 1979, and the court 

directed that notice of the hearing be given to Albert and 

Emily Gordon. A copy of the motion to compel and order 

directing notice to be given were duly served on June 19, 

1979. 

At the scheduled hearing, Gilbert appeared personally 

and Irene Newlon's attorney appeared on her behalf. Neither 

the Gordons nor their attorney made an appearance. The 

parties present at the hearing did not question or contest 

the claim for attorney fees. As a. result, the District 

Court entered an order on July 17, 1979, approving Gilbert's 

claim and directing the conservator to obtain the monies for 

payment from Albert and Emily Gordon in accordance with its 

order of September 26, 1978. A notice of entry of judgment 

was prepared, signed and filed by Gilbert. On July 25, 
1979, the clerk of the court served by mail the notice and a 

copy of the order on all parties, including Albert and 

Emily Gordon. 

Richard Llewellyn was appointed special conservator 

of the estate of Francis Gordon in September 1979. In early 

January 1980, he filed a petition requesting that Albert and 

Emily Gordon be held in contempt of court for their alleged 

failure to comply with the District Court's order of 

September 26, 1978. An order to show cause was duly issued 

to the Gordons and their current attorney of record. In 

response to the petition, the Gordons, on January 31, 1980, 

filed a notion to quash the order to show cause. At the 

same time, they filed a motion for a new trial with respect 

to the District Court's order of July 17, 1979, wherein the 

court upheld Gilbert's claim for $4,721.17 in attorney fees. 

A hearing on the motions was held on February 26, 

1980. On March 13, 1980, the District Court granted the 

Gordons' motion for a new trial and entered an order setting 

aside the award of attorney fees to Gilbert. The court 

stated the award was to be vacated because the judgment was 

rendered under a "mistake of fact, inadvertence and 

excusable neglect in the absence of said former conservators 

[Albert and Emily Gordon] . . . and because of a frail 

notice to them scarcely advising them of anything to be 

heard except 'payment of bills.'" 

On April 8, 1980, the trial judge held the Gordons in 

contempt of court for failing to comply with its September 

26, 1978, order. The court further directed the Gordons to 

pay $6,858.90 to the clerk of the court in accordance with 

the September 1978 order. From these orders, Gilbert, 
Llewellyn and the Gordons appeal. 

Concerning the "Gilbert" appeal, the sole issue 

raised is whether the District Court erred in granting the 

motion for a new trial. In this regard, Gilbert contends 

the court was in error because the Gordons, in bringing the 

motion for new trial, failed to comply with the following 

requirements of Rule 59(b), M.R.Civ.P.: 

"Time for motion. A motion for a new trial 

shall be served not later than 10 days after 

service of notice of the entry of the 

judgment . " 

Here, the notice of entry of judgment, although 

prepared and signed by Gilbert, was served on the Gordons by 

the clerk of the court on July 25, 1979. The motion for a 

new trial, however, was not filed or served on opposing 

counsel until January 1980, some six months later. 

Certainly, this period is far in excess of the rule 

limitation of ten days. 

The Gordons contend their motion was timely filed. 

In support of this contention, they argue that since Gilbert 

prepared, signed and gave the notice of entry of judgment to 

the clerk for service, the notice is deficient and cannot 

serve to start the limitation period contained in Rule 59, 

M.R.Civ.P. We must disagree. 

There is no requirement in the Montana Rules of Civil 

Procedure that the notice of entry of judgment be signed by 

the clerk of the court or that the notice be prepared and 

given to the clerk by the "prevailing party" as asserted by 

the Gordons in their brief. The only requirement is that 

upon entry of the order or judgment by the court, the clerk 

shall serve by mail notice of the entry upon each party to 

the proceeding and shall make note in the docket of the 
mailing. See Rule 77 (d) , M.R.Civ.P. This requirement was 

satisfied, and we find no deficiencies in the notice 

received by the Gordons. 

This Court has strictly enforced the time limitations 

set forth in Rule 59, M.R.Civ.P. See Pierce Packing Company 

v. District Court of the Thirteenth Judicial District 

-SQ-l 1 Se9 1 

(1978), 177 Mont. 50, 579 P.2d 760; Kelly v. Ehe3+ & he4A 

Paint Contractors (1978), 175 Mont. 440, 574 P.2d 1002; 

Armstrong v. High Crest Oil, Inc. (1974), 164 Mont. 187, 520 

P.2d 1081. We will not disregard those requirements and 

must now find that the District Court erred in granting the 

Gordonsl motion and ordering a new trial. 

In regard to the Gordon appeal, we note that it is 

solely the result of the April 1980 judgment finding the 

Gordons in contempt for failing to abide by the directives 

of a court order entered on September 26, 1978. In defense 

of the contempt charge, Albert and Emily Gordon contend that 

certain findings and conclusions of the District Court made 

in conjunction with the prior court order are not supported 

by substantial credible evidence. The Gordons further 

assert that during the hearing on the contempt petition, the 

District Court failed to consider various agreements which 

purported to release all rights, claims and causes of action 

Francis Gordon had against them. The Gordons then conclude 

that the contempt order should not have issued and this 

Court should now modify that order and the September 26, 

1978, order so as to be in accordance with the submitted 

record. 

We acknowledge the Gordons' contentions but conclude 

that they have been improperly presented on appeal. Section 
3-1-523, MCA, is pertinent in this regard and specifically 

provides: 

"Judgment and orders in contempt cases final. 

The judgment and orders of the court or judqe - - made in cases of contempt are final and 

conclusive. There is no appeal, but the 

actions of a district court or judge can be 

reviewed on a writ of certiorari by the 

supreme court or a judge thereof and the 

action of a justice of the peace or other 

court of limited jurisdiction by the district 

court or judge of the county in which such 

justice or judge of such court of limited 

jurisdiction resides." 

If the Gordons wish this Court to consider the 

propriety of the District Court's action regarding the 

contempt proceedings and to review any underlying supportive 

findings, conclusions or orders, it will be necessary to 

file an appropriate writ of review. 

For the reasons stated herein the Gordon appeal, 

challenging the District Court's order of contempt, is 

dismissed. Furthermore, the order granting the Gordons a 

new trial is vacated, and the judgment entered on July 17, 

1979, approving Gilbert's claim fgr attorney fees is // 

aff irmed. 

We concur: 

J