NO. 96-287 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

2 

DIME INSURANCE AGENCY, THOMAS D. BERRY, ... .' .i" .f 

Defendants and Appellants 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Thane P. Jc )hnson, Werner, Epstein & 

Cut Bank, Montana 

For Respondents: 

Johnson, 

Joseph T. Swindlehurst, Huppert & Swindlehurst, 

Livingston, Montana 

Filed: 

Submitted on Briefs: August 22, 1996 

Decided: November 7, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On January 23, 1996, the Gallatin County Justice Court entered 

judgment in the amount of $2809 in favor of the plaintiff, Dime 

Insurance Agency, against the defendant, ISC Distributors. ISC 

filed a notice of appeal to the District Court. However, Dime 

Insurance moved to dismiss the appeal because the undertaking on 

appeal was not filed within thirty days of the date on which 

judgment was rendered in Justice Court. The District Court granted 

Dime Insurance's motion. ISC appeals the order of the District 

Court which dismissed its appeal. We reverse the order of the 

District Court and remand to that court for consideration of the 

merits of ISC's appeal. 

The issue on appeal is whether the District Court erred when 

it dismissed ISC's appeal for failure to file an undertaking within 

thirty days of the date on which judgment was rendered in Justice 

Court. 

FACTUAL BACKGROUND 

In 1995, Dime Insurance Agency brought suit against ISC 

Distributors in Justice Court in Gallatin County to recover 

insurance premiums due for a business insurance policy. Following 

a hearing on January 19, 1996, the Justice Court entered a judgment 

in favor of Dime Insurance Company in the amount of $2809. 

On February 1, 1996, ISC filed a notice of appeal in Justice 

Court. Within one week, the Justice Court transmitted its record 

to the District Court for the Eighteenth Judicial District in 
Gallatin County. On March 7, 1996, ISC deposited an undertaking on 

appeal in the amount of $2809 with the Clerk of the District Court. 

On March 14, 1996, Dime Insurance moved to dismiss ISC's 

appeal. Dime Insurance maintained that ISC's appeal was not 

properly perfected because, pursuant to 5 25-33-201, MCA, ISC had 

not filed an undertaking on appeal within thirty days from the date 

on which judgment was rendered in Justice Court. On March 29, 

1996, the District Court granted Dime Insurance's motion and 

dismissed ISC's appeal. 

DISCUSSION 

Did the District Court err when it dismissed ISC's appeal for 

failure to file an undertaking within thirty days of the date on 

which judgment was rendered in Justice Court? 

We review a district court's grant or denial of a motion to 

dismiss to determine whether the court was correct. Boreen v. Christensen 

(1994), 267 Mont. 405, 408, 884 P.2d 761, 762. 

A party may appeal from a civil action in justice court at any 

time within thirty days after the judgment is rendered. Section 

25-33-102, MCA. The procedure for appealing a justice court 

judgment is set forth in § 25-33-103, MCA, which provides: 

The appeal is taken by serving a copy of the notice 

of appeal on the adverse party or his attorney and by 

filing the original notice of appeal with the justice or 

judge. The order of serving and filing is immaterial. 

In addition, when the aggrieved party appeals a money judgment from 

the justice court, that party must file an undertaking, with two or 

more sureties, in a sum equal to twice the amount of the judgment, 
or a deposit of money in the sum of the judgment plus $300. 

Sections 25-33-201 (1) and -205, MCA. The undertaking ensures that 

the appellant will pay the amount of the judgment appealed from 

together with all costs if the appeal is withdrawn or dismissed, or 

the amount of any judgment and all costs that may be recovered 

against him in the district court. Section 25-33-201(1), MCA. See 

alsoStateexrel.Gregoryv. DistrictCotrrt (1930), 86 Mont. 396, 399, 284 P. 537, 

538. Section 25-33-207, MCA, provides that an appeal shall not be 

dismissed 

for insufficiency of the undertaking thereon or for any 

defect or irregularity therein if a good and sufficient 

undertaking be filed in the district court at or before 

the hearing of the motion to dismiss the appeal, which 

undertaking must be approved by the district judge. 

In its order dismissing ISC's appeal, the District Court 

interpreted these statutes to require an appellant to file an 

undertaking within thirty days of the judgment rendered in justice 

court. In this case, the court held that since judgment was 

rendered in Justice Court on January 23, 1996, and the Clerk of 

Court deposited ISC's check for the undertaking on March 7, 1996, 

" [ulnder no possible time calculations was the undertaking filed 

within 30 days of the justice court judgment. " The court therefore 

held that it did not have jurisdiction to hear the appeal and 

granted Dime Insurance's motion to dismiss. 

The District Court's conclusion was based on Goldsmith v. Lane 

(1987), 226 Mont. 341, 735 P.2d 306. In Goldsmith, this Court held 

that a party's failure to file an undertaking on appeal from a 
justice court within thirty days of the justice court's judgment 

prevented the appeal from being perfected and deprived the district 

court of jurisdiction to entertain the appeal. Goldsmith, 226 Mont. 

at 343-44, 735 P.2d at 308. Specifically, this Court held that "an 

appeal is not effectuated for any purpose unless an undertaking is 

filed in accordance with the statutory requirements oC Section 

25-33-201, MCA." Goldsmith, 226 Mont. at 343, 735 P.2d at 308. 

Section 25-33-201, MCA, does not, however, require that an 

undertaking be filed within thirty days of the justice court's 

judgment in order to perfect the appeal. That section provides 

only that : 

(1) Except as provided in subsection (4) , an auueal 

from a justice's or city court is not effectual for anv 

purpose unless an undertakinq be filed, with two or more 

surec~es, ln a sum eqcal zc zwlce =he amour.= of c:?e 

iudamenc. ~nclcdinq coscs, wher. zhe ',~darnenc is for che 

pavment of monev. The undertaking must be conditioned, 

when the action is for the recovery of money, that the 

appellant will pay the amount of the judgment appealed 

from and all costs if the appeal be withdrawn or 

dismissed or the amount of any judgment and all costs 

that may be recovered against him in the action in the 

district court. . . . . (4) When the appealing party is determined by the 

court to be indigent, the district court shall waive the 

undertaking requirements of this section. 

(Emphasis added. ) Section 25-33-103, MCA, which sets forth the 

requirements for taking an appeal, requires only that an aggrieved 

party serve a copy of the notice of appeal on the adverse party or 

his attorney and file the original notice of appeal with the 

justice court within a period of thirty days. There is no 

requirement, pursuant to either § 25-33-103 or § 25-33-201, MCA, 
that the undertaking be filed within that thirty-day period in 

order to preserve the parties' right to appeal. 

This Court has, in fact, held that notice of an appeal and the 

filing of an undertaking occur in two different stages and that the 

filing of an undertaking need not occur within the statutory period 

prescribed for taking an appeal. In Thien v. Wiltse (1914) , 49 Mont. 

189, 192-93, 141 P. 146, 147, we reviewed nearly identical 

statutory provisions, and stated: 

The Code provisions touching appeals from justices' 

courts are to the effect, that an appeal lies from a 

judgment, and from a judgment only; it is taken by filing 

a notice of appeal with the justice and serving a copy 

thereof on the adverse party or his attorney; it is not 

effectual for any purpose, unless an undertaking is 

filed; and it must be tried anew in the district court. 

It is not without significance that, under these 

provisions, an appeal from justices' courts presents 

three defined stages: (1) The taking which occurs when 

notice of the proper character is properly filed and 

served . . . . (2) The werfectinq or renderins effectual 

which occurs upon the filins of the undertakinq. That 

this is no wart of the takinq but presuwooses the takinq, 

and is a distinct step bevond it, is clear from the fact 

that the appeal mav be preserved, notwithstandinq the 

undertakins is defective or irreqular, if a qood one be 

substituted at or before the hearinq of the motion to 

dismiss . . . . The distinction between the takinq and 

the perfectins of an appeal under statutes similar to our 

own is clearlv recosnized bv the supreme court of 

California: "It is contended, however, that the appeal 

in this case was not taken within sixtv davs after the 

rendition of the iudsment, because no undertakinq on 

appeal was filed within that period of time. An appeal 

is taken when a notice of appeal is served and filed. 

The filinq of an undertakinq perfects an appeal, but it 

is not wart of the takins in the statutorv sense." 

(Perkins v. Cooper, 3 Cal. Unrep. 279, 24 Pac. 377. ) (3) The 

hearing which occurs when the trial denovo is had in the 

district court. 

(Emphasis added, citations omitted.) 
In Goldsmith v. Lane, this Court neither addressed nor overruled 

the language in Thien. Instead, the Court relied on an earlier 

Montana case, Pirriev. Mode (1905), 33 Mont. 1, 81 P. 390, to reach 

its conclusion that an undertaking not filed within the statutory 

period for the taking of an appeal is void and divests a district 

court of jurisdiction. Specifically, the Court cited Pirrie for the 

proposition that 

iwlhen the undertaking is insufficient a new one may be 

filed, and the appeal, or appeals, be saved; but when the 

one filed is void, the court has not obtained 

jurisdiction and the appeal must fail. 

Goldsmith, 226 Mont. at 343, 735 P.2d at 308 (quoting Pirrie, 33 Mont. 

at 6, 81 P. at 392). In Pirrie, however, the Court was asked to 

determine whether an ambiguous undertaking was void, not whether an 

untimely undertaking was void. Furthermore, had the Court been 

asked to determine the latter question, it would have been bound by 

§ 1724 of the Montana Code of Civil Procedure (1895), which 

provided: 

An appeal is taken by filing with the clerk of the 

court in which the judgment or order appealed from is 

entered, a notice stating the appeal from the same, or 

some specific part thereof, and serving a similar notice 

on the adverse party or his attorney. The order of 

service is immaterial, but the aupeal is ineffectual for 

anv uurpose unless within five davs after service of the 

notice of aupeal, an undertakinq be filed, or a deposit 

of monev be made with the clerk as herein provided, or 

the undertakinq be waived bv the adverse uartv in 

writinq. 

(Emphasis added. ) Although the language of § 1724 did provide that 

an undertaking not filed within five days after service of the 
notice was void, that language is not duplicated in either 

5 25-33-103 or 5 25-33-201, MCA, on which this Court relied in 

Goldsmith. Theref ore, this Court ' s reliance in Goldsmith on Pirrie was 

misplaced. Because Pirrie is inapplicable, and because neither 

§ 25-33-103 nor § 25-33-201, MCA, mandates that an undertaking be 

filed within thirty days of the justice court's judgment, we hold 

that there is no such requirement, and on that basis, we reverse 

our earlier opinion in Goldsmithv. Lane (1987), 226 Mont. 341, 735 P.2d 

306. 

Although 55 25-33-103 and -201, MCA, do not set a period 

within which an undertaking must be filed, § 25-33-207, MCA, 

provides that an insufficient, defective, or irregular undertaking 

may be cured if a good and sufficient undertaking is filed in the 

district court "at or before the hearing of the motion to dismiss 

the appeal." On the basis of § 25-33-207, MCA, we hold that, in 

order to perfect an appeal from justice court, a valid undertaking 

need only be filed at or before the hearing on the motion to 

dismiss. Therefore, as long as an aggrieved party takes an appeal 

within thirty days of the justice court's judgment, pursuant to 

5 25-33-102 and -103, MCA, and files an undertaking at or prior to 

a hearing on a motion to dismiss for failure to file an 

undertaking, pursuant to 55 25-33-201 and -207, MCA, that appeal is 

valid and the district court has jurisdiction to entertain the 

appeal. 
In this case, the Justice Court rendered its judgment on 

January 23, 1996. ISC filed a notice of appeal on February 1, 

1996, within thirty days of the judgment of the Justice Court. In 

addition, ISC deposited an undertaking on March 7, 1996, prior to 

Dime Insurance Agency's motion to dismiss and prior to a hearing on 

that motion. Because ISC instituted its appeal with thirty days, 

pursuant to §§ 25-33-102 and -103, MCA, and filed its undertaking 

prior to the District Court ' s hearing on Dime Insurance ' s motion to 

dismiss, we hold that ISC's appeal was perfected and the District 

Court had jurisdiction to hear the appeal. We therefore hold that 

the District Court erred when it dismissed ISC's appeal on the 

ground that ISC had failed to file its undertaking within thirty 

days of the Justice Court's judgment. We remand this case to the 

District Court for consideration of the merits of ISC's appeal.