O CONNELL v HEISDORF

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No. 82-72 I N THE SUPREME COURT O THE STATE O MONTANA F F 1982 BRIAN O'CONNELL, P l a i n t i f f and A p p e l l a n t , VS . JOSEPH HEISDOFF, et al, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Powell Honorable R o b e r t Boyd, J u d g e p r e s i d i n g . Counsel o f Record: For P l a i n t i f f : H a r r i s o n , Loendorf and P o s t o n ; Jerome T. Montana L o e n d o r f , EIelena, For Defendant: P o o r e , Rot11 & Robinson; James A. P o o r e , B u t t e , Montana S u b m i t t e d on b r i e f s : Decided: August 1 9 , 1982 December 29, 1982 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The plaintiff, Brian J. O'Connell appeals fran a Powell County District Court judgment quieting title to certain mining properties in favor of the defendants, Joseph Heisdorf, et al. and declaring OIConnell's mining clajms to be void. OfConnell has challenged the sufficiency of the evidence. We dismiss the appeal because the notice of appeal was filed too late, thereby depriving this court of jurisdiction. Our discussion is limited to the procedural defects upon which we base the dismissal. There are three defects, any one of which requires a dismissal for lack of jurisdiction. The original judgment was entered on October 8, 1981 and notice of entry of judqment was given on the same day. The next day, October 9, 1981, the plaintiff filed a motion objecting to defemdants' m r a n d u m of costs and noticed it up for a hearing on October 22, 1981. It does not appear that a hearing was held on October 22, nor is there any indication +bat the trial court entered an order for a different hearing date. For reasons not disclosed by the record, the court did not rule on the objection to the costs. Rather on October 26, 1981, the parties stipulated to the costs. A motion objecting to costs does not, however, stop the judgment from running. Only certain motions will suspend the running of the judgment for the purpose of filing a notice of appeal. M.R.App.Civ.P. Rule 5, lists those motions and includes a Rule 59, M.R.Civ.P. motion to alter or amend judgment. A motion objecting to costs is provided for by section 25-10-502, K!A and is outside the scope of a Rule 59 motion to alter or amend judgment. We find authority for this view i n the Federal Rules of Civil Procedure. Rule 59 (e) F.R.Civ.P. , provides that a motion to alter or amend judgment must be served not later than ten days after entry of the judgment. A comnent to that rule sta-tes that "[wlhere costs are part of the judgment, an a m e n b n t of the bill of costs i s not governed by Rule 59(e)." 6A Moore's Federal Practice $ e 59.12 (1) n. 34. W also note that the l a s t sentence of our own Rule 58, , M.R.Civ.P. expressly provides that, " [ t l h e entry of the judgment s h a l l not be delayed for the taxing of costs." This rule clearly implies t h a t rn 0-t, taxing of costs isAto be considered as part of the judgment insofar a s the running of the for the notice of appeal a f t e r the entry of judgment. Once notice of entry of judgwnt is served by the clerk of court under Rule 77(d), M.R.Civ.P., the clock s t a r t s running regardless of what l a t e r takes place coi~ceming the separate item of costs. The clock began t o run on the judgmnt on October 8, 1981, and Rule 5, M.R.App.Civ.P. provides t h a t an appeal from a judgment must be taken within 30 days from the entry thereof. mil (Rule 6 (e) , M.R.Civ.P.) Including 3 days for service by the l a t e s t date f o r the f i l i n g of this appeal would have been November 8, 1981. The p l a i n t i f f did not f i l e the notice of appeal u n t i l January 26, 1982, long a f t e r the time had lapsed. The time limits for f i l i n g an appeal are mandatory and jurisdictional. Absent compliance, w do not acquire jurisdiction t o determine an appeal e on the merits. Price v. Zunchich (1980), , Mont. 612 P.2d On October 29, 1981, an amended judgment was entered t o r e f l e c t the amount of costs a s stipulated by the parties, and on t h a t s m date the clerk of court mailed another notice of plaintiff. entry of judgment t o the On November 13, 1981, 15 days a f t e r this notice of entry of judgment, the plaintiff f i l e d a motion t o amend the judgment, supported by a brief. The plaintiff did not notice up thj-s motion for a hearing. Rule 59(g), M.R.Civ.P. provides t h a t a motion t o amend a judqme-nt must be f i l e d within ten days of the notice of entry of jud-t. three additional days permitted by Rule 6 (e) , M. R. Civ. P I f w include e . for service of the notice of entry of judgment by mail, the motion t o amend judgment was s t i l l late. Counting from the October 29 notice of entry of judgment, plus tea days, plus the three days allowed for mailing, the motion t o amend judgment should have been f i l e d a t l e a s t by IVovember 11, 1981. Because it was f i l e d too l a t e , the t r i a l court had no jurisdiction t o hear o r determine the motion t o amend the judgrent. This Court w i l l not disregard the ten day time limitation of h l e 59(g). Matter of Estxte of Cardon (1981), Mont . , 628 P.2d 1117, 38 St.Rep. 887. In addition, because the motion t o amend j u d p n t was f i l e d too l a t e , the time for f i l i n g the notice of appeal was not suspended. Assuming t h a t the clock began running on the date of the amended judgment, October 29, 1981, the notice of appeal w s f i l e d January 26, 1982, a h s t three a months l a t e r and w e l l beyond the 30 day time limit. A second defect exists which denies us jurisdiction t o hear the appeal. Assuming now t h a t the p l a i n t i f f ' s motion t o amend the October 29, 1-981 judgment was f i l e d i n t i m e , Rule 59 (dl , M.R.Civ.P. provides t h a t i f a party f i l e s a motion t o amend a judgment without noticing it up for a hearing, the t r i a l court must rule on t h a t motion within 15 days of the f i l i n g date, or the motion is autamatical-ly d e e d denied. (1982), Mont . -P.2d , 39 Winn v. Winn St.Rep. 1831; O s t e r v. O s t e r (1980), -Mont. - 606 P.2d 1075, 37 %.Rep. , 264. Here plaintiff did not notice up the motion t o amend judgment for a hearing. The defendants f i l e d a memorandum i n opposition and the motion w s deemed submitted on November 1 7 , 1981. a The t x i a l court did not rule on the motion u n t i l December 24, 1981, more than a month a f t e r it hFd been deaned submitted. The m t i o n was automatically deemed denied a f t e r 15 days and it was error for the t r i a l court t o rule a f t e r the expiration of the time period measured from the date of submission of the motion. See Kelly v. Sell and Sell Paint Contractors (1978), 175 Mont. 440, 574 P.2d 1002. The motion was d e a d denied on December 2, 1981 and the 30 day time for entering a notice of a p a l would have started running on t h a t date. Again the p l a i n t i f f s did not f i l e t h e i r notice of appeal u n t i l January 26, 1982, well beyond the allowable 30 days. For these reasons, this Court has no jurisdiction to hear the appeal. The appeal is dismissed. We Concur: I Justices

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