                              NO.    93-098
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1993


KEITH SADOWSKY and LINDA
SADOWSKY, husband and wife,
           Plaintiffs and Appellants,
      v.
THE CITY OF GLENDIVE,
MONTANA, a municipal corporation,
           Defendant and Respondent.



APPEAL FROM:    District Court of the Seventh Judicial District,
                In and for the County of Dawson,
                The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Marvin L. Howe, Esq., Simonton, Howe & Schneider,
                P-C., Glendive, Montana
           For Respondent:
                Gary L. Day, Esq., Lucas & Monaghan, P.C.,
                Miles City, Montana


                                    Submitted on Briefs:   June   1,    1993
                                                Decided:   July   20.   1993
Fil
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Keith and Linda Sadowsky appeal from an order entered by the

District Court for the Seventh Judicial District, Dawson County,
denying their motion for an extension of time to file a notice of
appeal.   We affirm.
     The dispositive issue is whether the District Court erred in
denying the Sadowskys' motion for an extension of time to file a
notice of appeal.      As a preliminary matter, we determine that a
denial of a motion for extension of time to file a notice of appeal
is itself an appealable order.
     In 1988, the Sadowskys brought this action to recover damages
to their property allegedly caused by water leaking from a lawn
sprinkler system owned by the City of Glendive.    In March 1990, the
District Court entered summary judgment for the City based on the
doctrine of sovereign immunity as explained in this Court's opinion
in Eccleston v. Third Judicial Dist. Court (1989), 240 Mont. 44,
783 P.2d 363.
     In January 1991, this Court decided Crowell v. School Dist.
No. 7 (1991), 247 Mont. 38, 805 P.2d 522, holding that the purchase
of liability insurance by a school district operated as a waiver of
sovereign immunity to the extent of the coverage granted by the
insurance policy.      Then, in June 1992, this Court decided Koch v.
Billings School Dist. No. 2 (1992), 253 Mont. 261, 833     P.2d 181,
holding that plaintiff Koch could reopen her case based upon the
Crowell decision and pursuant to Rule 60(b)(6), M.R.Civ.P.



                                    2
     On September 25, 1992, over two years after this case ended in
a summary judgment, the Sadowskys moved for relief from the summary
judgment based on Crowell and Koch.      On November 23, 1992, the
District Court entered an order granting that motion.
     In January 1993, the City pointed out to the District Court
that its November 23, 1992 order was invalid, because motions made
under Rule 60, M.R.Civ.P., are deemed denied if no order is entered
within forty-five days of the motion.       The    forty-five-day   time
limit had expired on November 9, 1992.
     On January 20, 1993, the Sadowskys' attorney moved, pursuant
to Rule 5(a)(5), M.R.App.P., to extend the time in which they might
file an appeal from the deemed denial of their motion for relief
from summary judgment.    Their motion was filed within the time
allowed under Rule 5(a)(5), M.R.App.P.   However, the District Court
denied the motion for extension of time, ruling that there was no
excusable neglect or good cause to justify an extension.            The
Sadowskys then noticed this appeal from the denial of their motion
for an extension of time to file a notice of appeal.
     The City claims that a denial of an extension of time to file
a notice of appeal is not an appealable order.       It relies on Zell
v. Zell (1977), 172 Mont. 496, 498, 565 P.2d 311, 312, in which
this Court stated that "[iIt is well settled in Montana that an
untimely notice of appeal is a jurisdictional defect, which renders
this Court powerless to hear the appeal."         However,   in m the
appellant did not file a motion for extension of time in district
court,   instead asking this Court to extend the time allowed for

                                 3
appeal.      In other words, no timely notice of appeal was filed. In
the present case, in contrast,                 the notice of appeal from the
District Court's order denying an extension was timely filed in the
proper court.             The question here is whether an order denying an
extension of time to file an appeal is appealable.
        The Sadowskys point out that, under the Federal Rules of
Appellate         Procedure, denial of a motion for extension of time to
file an appeal is an appealable order.               While it is true that some
of the Montana Rules of Appellate Procedure are patterned after the
Federal Rules of Appellate Procedure, not all are.                 The Federal
Rules permit appeals only from orders that are made appealable by
statute.      9 MooreUs Federal Practice 9 110.01.           In state courts in
Montana,      appealable orders are delineated not by statute but by
Rule 1, M.R.App.P.             "Rule 1, M.R.App.P.,     defines the   limits   of
appealable        actions."    Continental Ins. Co. v. Bottomly (1988), 233
Mont.      277,     279,    760 P.2d 73, 75.        A denial of a motion for
extension of time to file an appeal is not listed as an appealable
order under Rule 1, M.R.App.P.                 On its face, therefore, Rule 1,
M.R.App.P.,        prohibits this appeal.
        The Sadowskys point out that this Court has reviewed instances
in which district courts have qranted extensions of time for filing
a notice of appeal. E.g., First Security Bank of Havre v. Harmon

(1992) I     255 Mont. 168, 841 P.2d 521; Xizer v. Semitool, Inc.

(1991),     251Mont. 199, 824 P.2d 229; In re Marriage of Bahm (1987),
225 Mont.          331,    732 P.2d 846.        In those cases,   however, the
extensions of time were reviewable in appeals of other, subsequent

                                           4
appealable    orders     or judgments as "intermediate order[s] or
decision[s] excepted or objected to within the meaning of Rule 46
of the Montana Ru:Les         of Civil Procedure, which involve the          merits,

or necessarily affect the judgment[.]"              See Rule 2, M.R.App.P.
     Rule 1,    M.R.App.P.,         allows appeal from "a final judgment
entered in [a] . . . special proceeding commenced in a district
court." The Sadowskys argue that the denial of their motion for an
extension of    time   is such a judgment.         This argument is flawed in
that the order from which they wish to appeal is not a judgment.
     The Sadowskys           also   cite Shields v.         Pirkle Refrigerated
Freightlines (1979),         181 Mont. 37, 591 P.2d 1120.          In that case,
this Court held that an order setting aside a default judgment on
jurisdictional grounds was appealable, because it "in effect,
finally concludes the case and the rights of the parties" and
"amounts to a final judgment."               Shields,    591 P.2d at 1123.      The
Sadowskys maintain the same reasoning applies here.
     We   agree.       The denial of the Sadowskys'              request for an
extension of time to file a notice of appeal concludes this case
just as finally as any final judgment.                  Because the denial of an
extension of       time to   file a notice of appeal is not simply a
ministerial    act, but is a decision within the discretion of the
district court, we conclude that it would be unjust to deny the
right of appeal from such a decision.              We therefore hold that the
denial of a Rule 5(a)(5), M.R.App.P., motion for an extension of
the time allowed for filing a notice of appeal is an appealable
order.

                                         5
        We now    consider whether the    District   court abused   its
discretion in denying the Sadowskys' request for an extension of
time.      Rule 5(a)(5), M.R.App.P.,     allows the district court to
extend the time allowed for filing a notice of appeal "upon a
showing of       excusable neglect or good cause."        The Advisory
Committee Notes to Rule 5(a)(5), M.R.App.P., state that "the
district court should have the authority to extend time in
extraordinary cases where injustice would otherwise result."
        In its order denying the request for the extension, the
District Court stated:
        At all times the Plaintiffs had control of this situa-
        tion.   They knew or should have known the time period
        after which the motion for relief is automatically
        denied. They could have requested a determination sooner
        from the Court. They also knew or should have known that
        the order of November 23 was issued without jurisdiction.
        It has been settled law in Montana for many years that
        once the 45-day time limit has expired the Court is
        without jurisdiction to take any action on the motion.
        In essence, although they argue that they relied upon
        such order, they had no right to.rely upon it. Nothing
        occurred here that was beyond the Plaintiffs' control.
        Therefore, the Court does not find any excusable neglect
        or good cause.
        As the City points out,      this Court has never affirmed a
finding of excusable neglect or good cause under Rule 5(a)(5),
M.R.App.P.,      due to counsel's lack of understanding of the forty-
five-day time limit on rulings on motions under Rules 59 and 60,
M.R.Civ.P.       It was the responsibility of the Sadowskys' counsel to
be aware of and to make sure the District Court was aware of the
forty-five-day rule on the motion for relief from summary judgment.
Lack of knowledge of a clear rule of civil procedure is not an
excuse for relief from the rules.        We conclude that the District
                                     6
Court did not abuse its discretion in ruling that the Sadowskys

have failed to demonstrate excusable neglect or good cause

justifying an extension of time for filing a notice of appeal.

    We affirm the denial by the District Court of the motion for

extension of time for filing a notice of appeal.




                                           Chief Justice



 We Concur:
