                            No.   92-396

          IN THE SUPREME COURT OF THE STATE OF MONTANA




DOUGLAS J. PIERCE,
     Plaintiff, Respondent,
     and Cross-Appellant,


ALSC ARCHITECTS, P.S.,
a Washington professional
service corporation,
     Defendant and Appellant.




APPEAL FROM:   District Court of the Eleventh Judicial ~istrict,
               In and for the County of Flathead,
               The Honorable Michael H. Xeedy, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               I. James Heckathorn, Murphy, Robinson, Heckathorn           &
               Phillips, Kalispell, Montana
          For Respondent:
               Roger M. ~ullivan, McGarvey, Heberling, Sullivan            &
               McGarvey, Kalispell, Montana


                                Submitted on Briefs:   April 30, 1993
                                            Decided:   ~ u l y 0,
                                                             2      1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal by ALSC Architects, P.S., of the Order of
the District Court of the Eleventh Judicial District, Flathead
County,   which     granted     plaintiff's      motion    for    judgment
notwithstanding the verdict and ordered a new trial on the
remaining issues.       We reverse and remand.
     The parties present the following issues for review:
     1.   Did     the    District    Court's   order   granting   judgment
notwithstanding the verdict and ordering a new trial on the
remaining issues have any force or effect?
     2.   Did the plaintiff file a timely notice of appeal?
     Douglas J. Pierce (plaintiff) brought a negligence action
against ALSC Architects, P.S. (defendant) as a result of personal
injuries he received when he fell through a false ceiling in the
Rosauer's store in KaLispell, Montana.         On November 1, 1991, after
a trial, the jury returned a verdict in favor of defendant.             On
November 7, 1991, plaintiff filed timely Rule 50 (b) and 59 (a) post-
trial motions for judgment notwithstanding the verdict and for a
new trial, respectively.            On November 8, 1991, counsel for
defendant presented the District Court with a judgment on the jury
verdict for the court Is signature.        This judgment has never been
signed by the District Court and, thus, never entered for the
defendant.
     The District Court did not rule on plaintifflsmotions within
45 days as required by Rule 59 (d) plaintiff s counsel advised the
                                  ,

District Court by letter dated December 17, 1992, that the court

                                      2
had      not     ruled   on   the       plaintiff's     motion     for    judgment
notwithstanding the verdict or a new trial.                  On January 14, 1992,
plaintiff's counsel again sent a letter to the District Court
advising the court that the motions had not been ruled on and
defendant's proposed judgment had not been signed. On January 17,
1992, the District Court issued an order ruling that "judgment
n.0.v.    be entered for the Plaintiff on the issue of Defendant's
negligence, with a new trial to determine all remaining issues
raised by the pleadings."
      Without knowledge of the District Court's January 17th order,
counsel for plaintiff signed plaintiff's Notice of Appeal and filed
it with the Flathead County Clerk of Court. The notice was stamped
by    the      clerk's   office    at    3:19    p.m.   on    January    21,   1992.
Plaintiff's counsel also requested transmittal of the District
Court record to the Supreme Court, gave a check for the filing fee
to the Clerk of Court's office and requested that the court
reporter prepare a trial transcript.
      On January 22, plaintiff's                counsel was contacted by the
clerk's office and informed that the District Court had issued an
order dated January 17, 1992, granting judgment notwithstanding the
verdict and ordering a new trial on all other issues raised in the
pleadings.       Plaintiff's counsel was asked if he wished to withdraw
the Notice of Appeal.             Plaintiff's counsel advised the clerk's
office the following day, January 23, 1992, that the notice of
appeal could be withdrawn.              No motion for withdrawal, notice of
motion for withdrawal, or order for withdrawal was filed.                        The
original Notice of Appeal and counsel's check were returned by the
clerk's office.    The Notice of Appeal was returned with the Clerk
of Court's "filed" stamp obliterated with correction fluid.
     On January 24, 1992, plaintiff filed a Notice of Entry of
Judgment and filed a Motion for a Scheduling Order. On January 28,
1992, counsel forthe defendant filed defendant's Notice of Appeal.

Subsequently, defense counsel filed a petition for a Writ of
Supervisory Control when the clerk's office scheduled a scheduling
conference after he had filed a notice of appeal.         This was denied
on April. 2, 2992.       Plaintiff's counsel submitted the returned
original Notice of Appeal and check for $75.00 to the Clerk of the
Supreme Court     in his appendix to his brief            in response to
defendant's petition for writ of supervisory control.
                                      I.
     Did   the     District       Court's      order   granting   judgment
notwithstanding the verdict and ordering a new trial on the
remaining issues have any force or effect?
     We begin our journey through this procedural mire by noting
that both a Rule 50(b), motion for judgment notwithstanding the
verdict and a Rule 59(a) motion for a new trial are subject to the
45-day time limit allowed the district court for ruling on these
motions by Rule 59 (d), M.R. C ~ V P. The 45-day period is mandatory.
                                   .

See, In re the Marriage of Miller (1989), 238 Mont. 108, 111, 776
P.2d 1218, 1220.     Moreover, the 45-day period begins to run from
the date the motion is filed whether or not the judgment has been
entered.   ~ i l l e r ,7 7 6 P. 2d at 1220.   The ~istrictCourt ruled on
plaintiff's motions 71 days after they were filed,            We conclude
that despite the fact that judgment had not been entered, the 45-
day period began to run when plaintiff's motions were filed.
     We hold the plaintiff's motions were denied by operation of
law under Rule 59(d), M.R.Civ.P.,      when the District Court did not
rule within 45 days of filing the motion.
     Our next inquiry is whether or not the District Court's order
dated January 17, 1992 is nonetheless effective under Rule 59(e),
M.R.Civ.P.,   as contended by plaintiff.        Rule 59(e), M.R.Civ.P.,
provides:
          Rule 5 9 (e).O n i n i t i a t i v e of court. Not later than
     10 days after entry of judgment the court of its own
     initiative may order a new trial for any reason for which
     it might have granted a new trial on motion of a party.
     After giving the parties notice and an opportunity to be
     heard on the matter, the court may grant a motion for a
     new trial, timely served, for a reason not stated in the
     motion.
Plaintiff contends that Rule 59(e), M.R.Civ.P.,           vests the court
with jurisdiction until 10 days after entry of judgment. As noted
above, the District Court did not sign the judgment submitted by
defendant.    Defendant contends that by granting the motions after
the 45-day period had expired, the District Court was without
jurisdiction to enter the order and, therefore, the order is of no
force or effect.
     Plaintiff relies on In re Marriage of Kink (1987), 226 Mont.
313, 735 P.2d 311, for his argument that the District Court retains
jurisdiction to order a new trial until 10 days after entry of
judgment.      In   Kink,   the   district   court    ordered    a   further
evidentiary hearing after both parties moved to amend the findings
and conclusions.      The court's order was within the 45-day time
period after filing of both motions. An argument was made that the
court lost jurisdiction to rule on the motions because at the time
the court amended the findings and conclusions, the 45-day period
had expired. This Court concluded that the District Court's order,
issued prior to the expiration of the 45-day period, was in fact an
order for a new trial.    Kink, 735 P.2d at 313.
     Defendant contends that this case is distinguishable from Kink
because here we had passed the 45-days at the time the court
granted plaintiff's motion and that if the Kink district court had
waited until the 45 days expired, it would have lost jurisdiction.
We agree with the defendant that the expiration of the 45-day
period affected the District Court's jurisdiction.         However, the
District Court lost jurisdiction for the issue only; it did not
lose jurisdiction to order a new trial under Rule 59(e).
     The District Court's order here specifically states that it is
based on the plaintiff's motion:
          Upon motion of      the   plaintiff   and    good   cause
     appearing therefor,
          IT IS HEREBY ORDERED that judgment n. O.V. be entered
     for the Plaintiff on the issue of Defendant's negligence,
     with a new trial to determine all remaining issues raised
     by the pleadings.
The District Court was without jurisdiction to grant a new trial
for reasons stated in the plaintiff's motion.       Clearly, the court's
order, as set forth above, grants a new trial based on plaintiff's
motion.   We conclude that the court lost jurisdiction to grant
plaintiff's motion for any of the reasons stated in the motion 45
days after it was filed.
     We   hold   the   District   Court's   Order    granting   judgment
notwithstanding the verdict and granting a new trial to determine
all remaining issues raised by the pleadings is of no force or
effect.
                                11.

     Did the plaintiff file a timely notice of appeal?
     By vacating the District Court's order granting plaintiff's
motion, we reinstate the denial of the same by operation of law.
The question then becomes whether or not this Court will consider
the merits of plaintiff's appeal from the denial of his motion. As
explained below, we decline to rule on this issue.
     The procedural facts of this case, as noted above, are quite
confusing.   Plaintiff's Notice of Appeal was signed and delivered
to the Clerk of Court and stamped by the clerk's office at 3: 19
p.m. on January 21, 1992.     plaintiff's counsel also requested
transmittal of the District Court record to the Supreme Court, gave
a check for the filing fee to the Clerk of Court's office and
requested that the court reporter prepare a trial transcript.
     On January 22, 1992, plaintiff's counsel was contacted by the
Clerk of Court's office and informed that Judge Keedy had issued an
order dated January 17, 1992 in favor of plaintiff and granting
plaintiff's post-trial motion for judgment notwithstanding the
verdict and ordering a new trial on all other issues raised in the
pleadings.   Plaintiff's counsel was asked if he wished to withdraw
plaintiff's Notice of Appeal.     Plaintiff's counsel advised the
Clerk of Court's office the following day that the Notice of Appeal
could be withdrawn.    No entry in the clerk's permanent record
remains to show the appeal was filed. However, the docket contains
a blank space which has been corrected to remove an entry.
     The Notice of Appeal was returned to plaintiff's counsel with
the Clerk of Court's stamps obliterated with correction fluid. The
original Notice of Appeal and counsel's check in the amount of
$75.00 were then returned by the clerk's office.             No motion for
withdrawal,   notice    of   motion    for withdrawal, or        order    for
withdrawal was filed.     Plaintiff's check and Notice of Appeal were
included with documents sent to this Court in March o f 1992 in
response to defendant's application for a writ of supervisory
control. In a document filed with this Court, however, the parties
stipulated for purposes of this appeal, that plaintiff would be
denominated respondent and cross-appellant and defendant would be
denominated appellant and respondent.
     Plaintiff   now    contends      that   his   Notice   of   Appeal   was
effectively filed when delivered to the Clerk of Court and that his
counsel's oral directive to withdraw the Notice of Appeal after it
had been delivered was insufficient.           He further contends that
only a properly withdrawn notice of appeal will divest this Court
of its jurisdiction.
     This Court has jurisdiction after the filing of the notice of
appeal except for the District Court's limited jurisdiction to
dismiss the appeal when it has not been docketed by the Clerk of
the Supreme Court.     Plaintiff's appeal has not been docketed by the
clerk as of the date of this writing.
     Rule 4(a), M.R.App.P., provides in pertinent part:
     Failure of an appellant to take any step other than the
     timely filing of a notice of appeal does not affect the
     validity of the appeal, but is qround only for such
                                        .          -

     action as the supreme court deems appropriate. which may
     include dismissal of the ameal. (Emphasis added.)
Rule 4(a) allows this Court to dismiss an appeal on appropriate
grounds.
     We    conclude   that   dismissal   of    plaintiff's   appeal   is
appropriate in this case.     We do note that the procedural errors
which caused the problems in this case resulted from the conduct of
the District Court Judge and not of either counsel.          Counsel for
defendant presented a proper document to the District Court for
signature.   It was the obligation of the District Court to enter
judgment promptly upon submission.            In addition, plaintiff's
counsel filed timely motions which were not ruled on during the
time allowed for these motions under the Rules of Civil Procedure.
Plaintiff's counsel notified the District Court that the court had
not ruled on the motions and had not entered judgment.                The
subsequent order filed when the court was without jurisdiction
caused needless confusion with all concerned.
     Because we conclude that the District Court's order granting
a new trial was improper and because we direct the entry of
judgment for defendant in accordance with the jury's verdict, we
conclude that either party will then have the amount of time
allowed by law in which to file a notice of appeal from that
judgment. In view of that conclusion, we do not find it necessary
to address the issue of the adequacy of the notice of appeal.
     We vacate the Order of the District Court granting plaintiff Is
motion for judgment notwithstanding the verdict and ordering a new
trial on remaining issues; and remand to the District Court for an


the jury's verdict.
                                                   -
order to enter the judgment in favor of the defendant pursuant to
                                                                 I
                                          July 21, 1993

                                  CERTIFICATE OF SERVICE

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


I. James Heckathorn
Murphy, Robinson, Heckathorn & Phillips
P. 0. Box 759
Kalispell, MT 59903-0759

Roger M. Sullivan
McGarvey, Hebeding, Sullivan & McGarvey
745 S. Main
Kalispell, MT 59901


                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT
