                            No.    92-474
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993



RICHARD SALTZKAN, JR. ,
          Plaintiff and Respondent,
     v.
MONTANA DEPARTMENT OF TRANSPORTATION,
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          Defendant and Appellant.                            -
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APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Jack A. Holmstrom, Montana Department of
               Transportation, Helena, Montana
          For Respondent:
               Michael E. Wheat, Cok     &   Wheat,
               Bozeman, Montana


                            Submitted on Briefs:         February 4, 1993
                                             Decided: July 20, 1993
Filed:
J U S ~ Terry
        ~ C ~     N Trieweiler delivered the opinion of the Court.
                   .
       On January 16, 1991, plaintiff Richard Saltzman, Jr., filed
his complaint in the District Court of the First Judicial District,
Lewis and Clark County, to enforce a settlement agreement entered
into with the Montana Department of Transportation. On April 27,
1992, the District Court dismissed his complaint with prejudice
based on his failure to prosecute his claim in a timely fashion.
However, on June 10, 1992, plaintiff moved the District Court,
pursuant to Rule 60(b)(6), M.R.Civ.P., to vacate and set aside its
earlier judgment. That motion was granted on August 14, 1992. The
Department appeals from the District Court's August 14, 1992,
order.    We affirm.
       The issue on appeal is whether, due to the passage of 45 days,
the District Court lost jurisdiction to grant plaintiff's motion to
vacate the court's earlier judgment.
                            FACTUAL BACKGROUND
       On January 16, 1991, plaintiff, through his attorney, filed a
complaint in which he alleged that a settlement agreement entered
into    between    the   Montana   Department   of   Transportation and
plaintiff, on April 2, 1979, had been breached by the Department.
The 1979 settlement agreement resolved an earlier claim by
plaintiff that the Department had discriminated against him as an
employee based upon physical and mental handicap. As part of that
agreement, the Department agreed to reinstate plaintiff as an
employee, and he agreed to dismiss various formal complaints that
had been filed against the Department.
     The Department answered plaintiff's complaint on May 16, 1991,
and a scheduling conference was conducted by the District Court on
July 12, 1991.   As a result of that conference, this case was set
for trial on April 27, 1492, and January 30, 1992, was established
as the date for completion of discovery.      Other dates for the
completion of pretrial matters were also established.
     The Department subsequently submitted written interrogatories
and requests for admissions to plaintiff's attorney.    However, no
responses were ever provided in spite of the District Court's order
compelling plaintiff to respond to the interrogatories.
     The Department attempted to comply with other deadlines
established by the District Court.        However, there was no
compliance by plaintiff's attorney. He failed to provide a witness
list or an exhibit list, and did not attend the pretrial attorney
conference in compliance with the District Court's scheduling
order.
     On March 9, 1992, the Department moved the District Court to
dismiss plaintiff's complaint as a sanction for plaintiff's failure
to provide responses to discovery or otherwise comply with the
District Court's scheduling order.   Plaintiff's attorney did not
respond to this motion, or other earlier motions to dismiss which
had been filed by the Department.
     On April 27, 1992, the District Court entered its order
dismissing plaintiff's claim with prejudice because of his failure
to prosecute that claim in a timely manner.    Notice of entry of
that judgment was filed and mailed to plaintiff's attorney of
record on the following day.
     Norma Saltzman is plaintiff's mother, and due to his handicap
has attempted to assist him with his c a i i In an affidavit filed
                                      lii.
with the District Court, she stated that during the time that
plaintiff's former attorney represented him, he had advised her and
her husband that he was proceeding with discovery and that
everything was under control.   Plaintiff's attorney also told her
that he anticipated that he would be prepared for the original
trial date, but advised her that if he was not prepared, there
would be no problem having that trial date continued.   He did not
advise them of outstanding discovery requests from the Department,
and no copies of any legal documents were ever shown or provided to
them.
     Plaintiff advised the District Court by affidavit that after
the complaint was filed in this case, he had one conversation with
his attorney, but heard nothing further from him and was provided
with no copies of discovery or pleadings in his case.
     In March 1992, plaintiff's parents began looking for other
representation for their son, but were advised to continue with the
services of their original attorney.   Finally, on June 4, Michael
Wheat, an attorney in Bozeman, agreed to represent plaintiff.   He
made several calls to the former attorney's office to discuss the
case, but the calls were not returned.   On June 5, 1992, he wrote
to that attorney and advised him that he had agreed to represent
plaintiff and asked if they could make arrangements to transfer the
file.   On that same date, Wheat also called the attorney for the
Department to notify him that he would be representing plaintiff.
That call was returned en June 8, 1992.              It was during that
telephone     conversation    that   Wheat    was   first   advised    that
plaintiff's complaint had been dismissed with prejudice.          On that
same date, Wheat notified plaintiff and his parents of the
dismissal.    This was their first notice of the dismissal.
     On June 8, and again on June 9, Wheat called the office of
plaintiff's former attorney on severai occasions to arrange for
substitution of counsel.      However, those calls were not returned.
     On June 10, 1992, Wheat filed a motion in the District Court
pursuant to 5 37-61-403, MCA, asking that he be substituted for
plaintiff's    former attorney       as the attorney of       record   for
plaintiff.     On that same date, he filed a motion pursuant to
Rule 60(b) (6), M.R.Civ.P.,     for an order vacating the District
Court's earlier judgment.
     Although there was no objection to plaintiff's motion for
substitution of counsel, that motion was not acted upon by the
District Court until August 14, 1992, when it was granted. On that
same date, the District Court granted plaintiff's motion, over the
objection of the Department, to vacate its earlier judgment.
     On appeal, the Department does not reargue the merits of
plaintiff's Rule 60(b)(6)      motion.       It simply alleges that by
August 14, 1992, 65 days had passed since the motion was filed, and
therefore, pursuant to Rule 60(c] and Rule 59(d), M.R.Civ.P., the
District Court was without jurisdiction to grant plaintiff's
motion.
     Therefore, we limit our review to that issue.
                               DISCUSSION
     Rule 60(c), M.R.Civ.P., provides that:
     Motions provided by subdivision (bj of this rule shall be
     determined within the times provided by Rule 59 in the
     case of motions for new trials and amendment of judgment
     and if the court shall fail to rule on the motion within
     the 45 day period, the motion shall be deemed denied.
     In this case, the District Court did not rule on plaintiff's
motion within 45 days and that is the basis for the Department's
contention that it was without jurisdiction to do so on August 14,
1992. However, plaintiff points out that neither did the District
Court rule on his motion to substitute Michael Wheat for his former
attorney and that until that motion was granted, there was no valid
Rule 60(b) (6) motion pending before the District Court. The motion
for substitution was     not    granted     until   the   date on which
plaintiff's Rule 60(b)(6)      motion was granted, and therefore,
plaintiff contends that the District Court's order was timely.
     The Department responds that Wheat acted as plaintiff's
attorney, and that the motion he filed on plaintiff's behalf should
be deemed effective from the date on which it was filed.             In
support of that argument, the Department refers us to several cases
from other jurisdictions, including Bakerv. Boxu (Cal. App. 2d 1991),

277 Cal. Rptr. 409, and InreGoldrlein (2d Cir. 1930), 43 F.2d 698.
     In support of his position, plaintiff relies on Giacana     v.   Stafe

(Ark. App. 1992), 839 S.W.2d 228.
     Because these decisions are based on statutory rules or
equitable principles that are not present in this case, we find
none of them persuasive. Instead, we conclude that our decision is
controlled by our earlier decision in Endresse v. Van Vleet (1946), 118

Mont. 533, 169 P.2d 719.     In that case, the defendants' attorney
was appointed to the federal bench after the trial.         No formal
substitution of counsel had been filed with the district court and
the defendants resided out of state. The plaintiff filed a notice
of appeal with the clerk of court, along with an affidavit,
pointing out that defendants were unrepresented and there was,
therefore, no attorney upon whom notice of appeal could be served.
This Court held that under those circumstances, the proceedings
were suspended until a new attorney was formally substituted for
the defendants* former attorney, and therefore, the notice of
appeal had not been effectively served.         In arriving at that
conclusion, this Court stated the following relevant rule:
          A party having an attorney of record in an action
     must be heard in court through such attorney and the
     court has no power or authority of law to recognize
     anyone in the conduct or disposition of the case except
     the attorneys of record therein.
            Even death of a party to an action does not revoke
     the authority of his attorney of record in such action,
     "but the authority of the attorney is continued in all
     respects the same and with like effect as it was prior to
     the death of such party, until such attorney shall
     withdraw his appearance in said action  ... or some other
     attorney shall be substituted for him, or his authority
      shall be otherwise terminated, and enDy thereof made to appear in
                                       .           .
      the record of such action or proceediitg '* Sec 89 7 4 Rev. Codes.
           In the absence of any relation of the attorney to
      the subject of the action, other than that arising from
      his employment, the client has the absolute right to
      change his attorney at any stage in the action by
      complying with the provisions of sections 8 9 7 5 and 8976,
      Revised Codes, but such change must be entered upon the
      minutes of the court or be upon order of the court after
      notice (sec. 8 9 7 5 ) and thereafter written notice must be
      given to the adverse party of the change and substitution
      of a new attorney or of the appearance of the party in
      person and, ''Until then he [the adverse party] must
      recognize the former attorney." Sec. 8976, Rev. Codes.
Endresse, 1 6 9 P.2d at 7 2 0 .

      It is clear then from our previous decision that so long as
plaintiff was represented by his original attorney, the court had
no power nor authority to rule upon a motion filed by anyone else
on plaintiff's behalf.        The authority to act on plaintiff's behalf
could only be transferred according to the procedure provided for
by statute. The controlling statute during the time that this case
was decided was 5      37-61-403,   MCA.    It provides as follows:
      The attorney in an action or special proceeding may be
      changed at any time before or after judgment or final
      determination, as follows:
           (1)  Upon consent of both client and attorney, filed
      with the clerk or entered upon the minutes;
           (2)  Upon the order of the court, upon the
      application of either client or attorney, after notice
      from one to the other.
      In    this    case,    consent   of    the       original   attorney   for
substitution of counsel could not be obtained.               That attorney did
not respond to the telephone calls or correspondence which
requested his withdrawal. The only means by which plaintiff could
accomplish a substitution of counsel was by order of the District
Court.   He promptly moved for such an order within two days from
the date on which he discovered that his complaint had been
dismissed.   There is no contention by the Department that the
motion for substitution had to be ruled on within any specified
period of time. That motion was granted on August 14, 1992.   Prior
to that date, the District Court had no power or authority to
recognize the motion which had been filed on plaintiff's behalf
pursuant to Rule 60(b)(6), I4.R.Civ.P.
     Therefore, we conclude that the 45-day period provided for in
Rule 60(c) did not begin to run until plaintiff's motion for
substitution of counsel was granted and there was an authorized
motion for post-judgment relief for the District Court to consider.
     For these reasons, we hold that the District Court had
jurisdiction on August 14, 1992, to grant plaintiff's motion for
relief from the judgment which had been entered on April 27, 1992.
Since that is the only issue we have been asked to address, the
order of the District Court is affirmed.
We concur:
                                      July 20, 1993

                             CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Jack A. Holstrom, Esq.
Montana Department of Transportation
2701 Prospect Ave.
Helena, MT 59620

Michael E. Wheat
Cok & Wheat
P.O. Box 1105
Bozeman, MT 5'9771 -1105


                                                ED SMITH
                                                CLERK O F THE SUPREME COURT
                                                STATE O F M O N T m &
