                            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       &    Johnson,
               Cut Bank, Montana
         For Respondents:
               Joseph T. Swindlehurst, Huppert    &     Swindlehurst,
               Livingston, Montana


                            Submitted on Briefs:            August 22, 1996
                                            Decided:        November 7, 1996
Filed:
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 D i s t r i c t 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. ~nclcdinqcoscs, wher. zhe ',~darnenc for che
                                                   is
     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 ( 1 9 1 4 ) , 4 9 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. 2 7 9 , 2 4 Pac. 3 7 7 . ) ( 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.   Therefore, 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 5 5 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 5 5 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.
