                                         No. 8 6 - 5 8 8
                   IN THE SUPREME COURT OF THE STATE OF MONTANA
                                              1987




RICHARD GOLDSMITH, d/b/a RICHARD
GOLDSMITH'S PREMIUM ICE CREAM,
                     Plaintiff and Respondent,
         -vs-
MAX LANE, d/b/a G         &   R REFRIGERATION,
                     Defendant and Appellant.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula,
                     The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                     Datsopoulos, MacDonald          &     Lind; Edward A. Murphy,
                     Missoula, Montana
         For Respondent:
                     Knight    &   Maclay; Gregory Gould, Missoula, Montana



                                             Submitted on Briefs: Feb. 26, 1 9 8 7
                                                Decided :        A p r i l 7, 1987

Filed:V> P, 7
     -1         - '1987

                                             Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       Appellant Max Lane appeals the order of the District
Court in the Fourth Judicial District in and for Missoula,
Montana, dismissing his appeal from a judgment of the
Missoula Municipal Court. We affirm.
       Richard Goldsmith, d/b/a Richard Goldsmith Premium Ice
Cream, filed suit in Missoula Municipal Court against Max
Lane, d/b/a G & R Refrigeration, for damages suffered as a
result of Lane's alleged defective installation and repair of
refrigeration and ice-making equipment. After a bench trial,
municipal judge, the Honorable Wallace N. Clark, entered
judgment for Goldsmith in the amount of $2,837.72.
       Lane filed a notice of appeal in municipal court within
thirty days of notice of entry of judgment, but he did not
file an undertaking. Nor did he serve notice of appeal on
either Goldsmith or his attorney. Goldsmith's attorney was
advised that an appeal had been filed when he contacted the
court to inquire whether Lane had objected to the memorandum
of costs filed by Goldsmith. The clerk was asked to and did
mail a copy of the notice of appeal to Goldsmith's attorney.
       Thirty-four days after Lane filed his notice of appeal,
Goldsmith filed a motion to dismiss on the grounds that no
undertaking had been filed and notice of appeal had not been
served. A supporting brief was filed. Lane did not respond
to the motion or file a brief within ten days.       Goldsmith
then requested summary disposition pursuant to local court
rules.      "Every court of record may make rules, not
inconsistent with the laws of this state, for its own
government and the government of its officers.    'I   Section
3-1-112, MCA. The rules apparently provide that the District
Court may dispose of a motion summarily, if the opposing
party does not file and serve the required answering
memorandum within ten days after service of a motion and
supporting memorandum. Goldsmith moved to dismiss and filed
and served a supporting memorandum on Lane August 6, 1986.
No answering memorandum had been filed by August 19, and a
request for summary disposition was filed and served on Lane
August 20. The following day Lane filed a motion for leave
to deposit cash in lieu of an undertaking and a memorandum in
opposition to Goldsmith's motion to dismiss.      He did not
request a hearing on the motion to dismiss. He delivered a
cashier's check to the clerk of the District Court in the
amount of $2,881.55, the amount of the judgment plus $43.83.
      The District Court dismissed Lane's appeal on the
grounds it had no jurisdiction because Lane had not filed an
undertaking within thirty days of judgment. His motion for
leave to deposit cash in lieu of an undertaking was denied.
Lane appeals.
      Appeal from a civil action in city court may be taken
within thirty days after judgment is rendered.        Section
25-33-102, MCA. 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 judge. It is
not material whether service or filing is accomplished first.
Section 25-33-103, MCA.        However, an appeal is not
effectuated for any purpose unless an undertaking is filed in
accordance with the statutory requirements of 5 25-33-201,
MCA, except that a deposit of money in lieu of undertaking in
the amount of the judgment plus $300 is equivalent to filing
the undertaking. Section 25-33-205, MCA.
      Unless the undertaking on appeal complies with the
statute, the District Court has no jurisdiction to hear the
appeal.   "[Ilf such undertaking is not filed, or is totally
defective, the appeal is a mere nullity."      State ex rel.
Gregory v. District Court (1930), 86 Mont. 396, 398, 284 P.
537, 537; Adams v. Crismore (Mont. 1984), 683 P.2d 497, 499,
41 St.Rep. 1338, 1340. However,
           [wlhen 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.
Pirrie v. Moule (1905), 33 Mont. 1, 6, 81 P. 390, 392. While
" [a] void undertaking is nothing--a mere nullity,"    Pirrie,
supra at 3, 81 P. at 391, the term "insufficient" means
merely defective and not void. Pirrie at 5, 81 P. at 392.
We noted in Pirrie an undertaking which is void is not
amendable while an insufficient or defective undertaking may
be amended. Although the undertaking in Pirrie was void for
ambiguity, because     it was void, the court had no
jurisdiction.      A void undertaking is the functional
equivalent of no undertaking.          The question of the
sufficiency or insufficiency of an undertaking cannot arise
until the undertaking has been filed.
       Lane failed to meet the statutory deadline essential to
perfect the appeal.     Therefore, the order of the District
Court is affirmed.




We concur:
