                                         No. 14472

               IN THE SUPREME C O W O THE STATE O
                                     F           F                J!42WANA

                                               1979



STATE O MXJTANA,
       F

                             P l a i n t i f f and Appellant,



J M S RICHAIiD JOHNSON,
A E

                             Defendant and Respondent.



Appeal from:        D i s t r i c t Court of the Fourth Judicial D i s t r i c t ,
                    Honorable Jack L. Green, Judge presiding.

Counsel of Record:

   For Appellant:

         Hon. Mike Greely, Attorney General, Helena, Mntana
         R o b e r t L. Deschamps 111, County Attorney, Missoula, Plbntana

   For Respondent:

         E&mrd C h g s , Missoula, Plbntana



                                                Sukdtted on briefs: January 15, 1979


         de,   .'
Filed:                i$!g
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

       Plaintiff, the State of Montana, appeals from an order
of the Missoula County District Court granting defendant's

motion to dismiss proceedings for an evidentiary hearing on
suspension of defendant's driver's license and ordering that
his driving privileges be restored to him.      The motion was
granted without notice or opportunity to be heard and was

further based on a misreading of section 32-2142.2(a),
R.C.M.    1947, now section 61-8-403 MCA.   We reverse and
remand the case for a hearing on the merits.
       Defendant was arrested for driving while intoxicated
and, according to the arresting officer, refused to submit
to a breath test as required by Montana's implied consent
law, section 32-2142.1, R.C.M.      1947, now section 61-8-402

MCA.     Pursuant to this statute the Montana highway patrol
board later requested surrender of defendant's driver's
license for a period of sixty days beginning May 17, 1978.
       On May 31, defendant petitioned the District Court for
a hearing pursuant to section 32-2142.2(a), and on June 1,
obtained an order staying suspension of his license. On July
20, the District Court scheduled the hearing for August 3.

       Cn August 1, defendant filed in the District Court and
served on the county attorney a single page document entitled
"motion to dismiss".    The motion sought dismissal of the
August 3 hearing for the court's failure to set a hearing
within thirty days of written notice to the county attorney
of defendant's petition for a hearing.      At the bottom of
this document, language stating that the motion was granted
and that defendant's driving privileges be reinstated was
typed in for the court's signature.  The next day, August 2,
                                                  combination
the court granted defendant's motion by signing the/motion
and order.     The State appeals.
     The determinative issues on appeal are whether the
District Court erred:   (1) by denying the State an opport-
unity to be heard in resisting the motion and relief sought,
and (2) by granting the motion on the basis of a misinter-
pretation of section 32-2142.2(a), R.C.M. 1947, now section
61-8-403 MCA.
     The court granted defendant's motion only one day after
he filed it in the District Court and served a copy on the
State.    In effect, the court granted an - parte motion to
                                          ex
dismiss, and the adverse party was not given notice or
opportunity to be heard.
     Rule No. II(1) of the Uniform Rules for District Courts
of Montana states:
     ''MOT
         IONS :
     "1. Upon serving and filing a motion under
     Rule 12, M. R. Civ. P., or within five days
     thereafter, the moving party shall serve and
     file a brief. The adverse party shall have
     ten days thereafter within which to serve and
     file an answer brief. A reply brief may be
     served and filed within ten days thereafter.
     Upon the filing of briefs, the motion shall
     be deemed made and submitted and taken under
     advisement by the Court, unless the Court
     orders oral argument of said motion  ...
    "Failure to file briefs within the prescribed
    time shall subject such motion to summary
    ruling, and the failure to file a brief by
    the moving party shall be deemed an admission
    that, in the opinion of counsel, the motion is
    without merit, and such failure to file a
    brief by the adverse party shall be deemed an
    admission that in the opinion of counsel, the
    motion is well taken   . ."
                           .
Although this rule specifically governs procedure for
motions in civil actions, we believe the substance of its
provision for notice and opportunity to be heard by the
adverse party should be observed in criminal proceedings to
ensure fundamental fairness and a fully informed court.
Since the State was given no such notice or opportunity to
be heard in this case, the court erred in granting defendant's
motion.
     This error is compounded by the fact that the order of
dismissal was based on an obvious misconstruction of section
32-2142.2(a), R.C.M.   1947, now section 61-8-403 which
provides :
     ". . . RIGHT TO APPEAL TO COURT. (a) Any
     person whose license or privilege to drive has
     been suspended, as hereinbefore authorized,
     the board shall immediately notify such person
     in writing and such person shall have the right
     to file a petition within thirty (30) days
     thereafter for a hearing in the matter in the
     district court in the county wherein such person
     shall reside and such court is hereby vested
     with jurisdiction - - shall be - duty to
                       and it       - its
     set - matter for hearing upon thirty (30)-
     -   the
     days' written notice - - county attorney of
                          to the
     the county wherein the appeal is filed      . . ."
     (Emphasis added.)
The State contends the phrase "it shall be [the ~istrict
Court's] duty to set the matter for hearing upon thirty days
written notice to the county attorney" requires thirty days
written notice to the county attorney before the hearing is
held, rather than requiring a hearing be set within thirty
days of the filing of a petition.    We agree.    The statute
clearly requires that the county attorney be given at least
thirty days written notice before the matter can be heard.
Dismissal was therefore doubly in error.
     In conclusion, we must add one word of caution.           In
light of the fact that the court order was so manifestly in
error, procedurely and substantively, the State should more
properly have moved for reconsideration by the District
Court, rather than taking an appeal to this Court.        By
seeking all possible resolution of such matters in the
District Court, economy and efficiency of the judicial
process is better achieved.
     The cause is reversed and remanded to the District
Court for a hearing on the merits-
We Concur:




       Chief Justice
     /7




             Justices
