                                               No.    84-442

                   I N THE SUPREME COURT OF THE STATE O F MONTANA

                                                      1985




CITY OF B I L L I N G S ,   STATE O F
MONTANA,

                                 P l a i n t i f f and R e s p o n d e n t ,

            -vs-

JOHNNY S E I F F E R T ,

                                 D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:         D i s t r i c t C o u r t of t h e T h i r t e e n t h 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 C o u n t y of Y e l l o w s t o n e ,
                     T h e H o n o r a b l e W i l l i a m J . Speare, J u d g e p r e s i d i n g .



COUNSEL OF RECORD:


      For Appellant:

                     T e r r y L.   Seiffert, B i l l i n g s , Montana


      F o r Respondent:

                     B o n n i e J. Sutherland, A s s t .            City Attorney,            Billings,
                     Montana




                                               S u b m i t t e d on ~ r i e f s : D e c .     20,    1984

                                                                    Decided:        A p r i l 8, 1985



Filed:




                                               Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
      Defendant Johnny Seiffert appeals from the dismissal by
the Yellowstone County District Court of his appeal from
Billings City Court.      The District Court dismissed the appeal
on grounds that the defendant failed to see that the City
Court record was transferred within the statutory period.           We
vacate a.nd remand for further proceedings.
      The issue is whether the District Court erred in dis-
missing defendant's appeal from the City Court to the Dis-
trict Court because of the defendant's failure to secure
transmission of the record to the District Court within the
statutory 30-day period.
      On May 10, 1984, the defendant was convicted in Billings
City Court of the offense of driving while under the influ-
ence of alcohol.        On the same date, defendant forwarded his
notice of appeal to the City Court clerk.          The entire record
of the City Court proceedings was filed with the District
Court on June 14, 1984, 35 days after the judgment was en-
tered and the notice of appeal filed.        Upon the motion of the
City, the District Court dismissed the defendant's appeal on
September 12, 1984, on the ground that the defendant failed
to perfect his appeal by actually seeing that the records of
the City Court were in transit within the 30-day statutory
period.
      The controlling statute on appeal from the City Court is
§   46-17-311,   MCA,    which   in   pertinent   part   provides   as
follows :


      "(3) Within 30 days, the entire record of the
      justice's or city court proceedings must be trans-
      ferred to the district court or the appeal must be
      dismissed.   It is the duty of the defendant to
      perfect the appeal."
This section must be applied in this case consistent with the
holdings of this Court in State v. Main           (Mont. 1981), 623
P.2d 1382, 38 St.Rep. 205, and State v. Dubray (Mont. 1982),


       In Main, the defendant's only request for transmission
of the record was made by defense counsel after expiration of
the 30-day statutory period.         This Court noted that the
defendant alleged but failed to substantiate a telephone call
to the City Court requesting transmission of            the record
within the 30-day statutory period.       Main, 623 P.2d at 1383,


       In Dubrav. this Court held that where the defendant
requested transmission of the record within the 30-day statu-
tory    period   and   fulfilled    the   other   requirements   of
5 46-17-311, MCA, the appeal had been perfected.       Dubray, 654
P.2d   at 971-72, 39 St.Rep.       at 2144-45.     The distinction
between Main and Dubray lies in the defendant's request or
failure to request transmission of the record within the
30-day statutory period.    Dubray, 654 P.2d at 972, 39 St.Rep.
at 2144-45 (distinguishing Main based upon failure to request
transmission of the record before expiration of the 30-day
period)   .
       Here, the District Court made no finding as to whether
defense counsel requested transmission of the record within
the 30-day statutory period.         The District Court's order
dismissing the appeal noted the parties' allegations on this
factual point and stated that the parties dispute whether
defense counsel requested transmission of the record within
the 30-day period.     The District Court concluded that regard-
less of when defendant initially requested transmission of
the record, he had failed to perfect the appeal because he
failed to see that the record was actually transferred.          In
light     of   Main and   Dubray,    this   was    an     erroneous   legal
conclusion.
     The record shows that defense counsel alleges he called
the City Court regarding the appeal on May 24, 1980, and was
"assured that there was no problem with the appeal."                   The
record also shows that jn a letter to the City Court dated
                        .
June 4, 1984, within the 30-day statutory period, defense
counsel asked that he be advised whether or not the appeal
had been perfected.       However, this letter did not request or
mention transmission of the record.              A second letter, dated
June 12, 1.984, after expiration of the 30-day period, again
asks that defense counsel be advised whether the appeal has
been perfected.       The letter also states, "I am assuming that
[the appeal] has been perfected as the notice has been filed
some time ago."               The City   Court    clerk    stated in her
affidavit that defense counsel did not appear personally to
request the record for transmission to the District Court nor
inform her of the 30-day time period for transmission of the
record.        The   record    is unclear whether         defense counsel
actually requested transmission of the record.              Resolution of
this factual issue is necessary to a determination of whether
defendant's appeal was perfected under             §   46-17-311, MCA, as
required by Main and Dubray.
    We vacate the District Court's order dismissing defen-
dant's appeal and remand for further proceedings consistent
with this opinion.
