                                      NO.       92-119
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1993


WILLIAM A. MANLEY and
MARGARET H. MANLEY,
            Plaintiffs         and Respondents,
     -vs-
WILLIAM GRIMES and HILDRETH GRIMES,
and R. V. BOTTOMLY and IRENE BOTTOMLY,
            Defendants         and Appellants.



APPEAL FROM:         District  Court of the              First   Judicial    District,
                     In and for the County               of Lewis and Clark,
                     The Honorable   Dorothy             McCarter,     Judge presiding.


COUNSEL OF RECORD:
            For    Appellants:
                     Monte D. Beck, Attorney               at    Law, Bozeman,        Montana
                     Donald Ostrem;   Graybill,                 Ostrem, Warner        & Crotty,
                     Great Falls,   Montana
            For    Respondents:
                     Robert      J.   Sewell,       Jr.:        Smith   Law   Firm,       Helena
                     Montana


                                       Submitted         on Briefs:      January       28,   1993
Justice         John Conway Harrison                     delivered           the Opinion              of the Court.

          This     is an action              for     the partition                of recreational                  property
located         near      the     community          of Lincoln,               Montana.             Appeal          is     taken
from a December 13, 1991 order                              of the District                  Court         for    the First
Judicial         District,          Lewis and Clark                  County.           We dismiss                the appeal
because we conclude                   that         the   order        from which              appeal         is    taken       is
not an appealable                  order.
          In view of our holding                     that     the December 13, 1991 order                                  is not
an appealable              order      under        Rule 1, M.R.App.P.,                       we will         not discuss
the other          issues         raised.
          The record              evidences          a dispute             between           former          friends          and
neighbors          who had been co-tenants                            on a tract               of         land     for       over
thirty         years.        R.V.     and Irene             Bottomly           initially            owned the entire
parcel.           They conveyed              an undivided                 one-half           interest            to William
and Margaret              Manley        in     1958 and,             in      1980,          a one-half             of      their
undivided          half      interest          to William             and Hildreth                 Grimes.           A cabin
located          on the         property       was jointly                utilized           by all          the     parties
over      a number of years.
          In     May 1986,           the     Manleys          filed         this          action        to       enjoin       the
Grimeses          from       building          another            cabin         on the         property              and      for
partition          of      the      property.               The matter               was set              for      trial       in
November          of      1987.         Immediately                 before         trial,           the      parties          met
outside         the court          and discussed              a resolution                  of the case.
          Counsel         advised       the court            that     a settlement                  had been reached
and      that      appropriate               papers         would         be      filed        at     a later              date.
Although         the      specifics          of the agreement                   were not entered                    into      the


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court       record,          the     trial          was vacated.                Despite        numerous        efforts
since       that      time,        the parties              have never          submitted        to the court               a
settlement            agreement         signed            by all         of them.
        On May 3,               1991,          the        Bottomlys          and    the     Grimeses          filed         a
"Petition           for    an Order"          in which they asserted                    that    judgment           should
be   entered              pursuant       to         an attached             "Stipulation           for      entry        of
judgment           and decree            of         partition"            based     on the       oral       agreement
reached         by the         parties              in    November         1987.      The stipulation                 was

executed           by the      Bottomlys                 and the     Grimeses        and their           counsel      but
not by the Manleys                   or their             counsel.
        Argument             on the          "Petition             for     an Order"        was heard              by the
District           Court      on September                5, 1991.          After    receiving           briefs,      the
District           Court      entered         its        decision        on December 13, 1991, ordering
as follows:
        IT IS HEREBY ORDEREDthat the motion to enforce the oral
        settlement      agreement and to enter a decree of partition
        is DENIED.       The parties     are hereby given until   January
        31, 1992, to resolve the controversy.          If this Court does
        not receive        a notice      of settlement    by that   date,
        partition     proceedings    will be ordered in accordance with
        Title     70, Chapter 29, of the Montana Code Annotated.
From this           order,         the Bottomlys              and the Grimeses              appeal.


           Is   the       District           Court's         December 13,           1991 order            appealable
under       Rule 1, M.R.App.P.?
        Rule        1, M.R.App.P.,                  provides         in part:
            (b) In civil cases a party aggrieved may appeal from a
           judgment or order,    except when expressly made final by
           law, in the following    cases:
           (1) From a final                  judgment            . . . .
           (2) . . . from such interlocutory                                judgments      or orders,          in

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          actions   for    partition    as determine     the    rights       and
          interests   of the respective    parties   and direct    partition
          to be made.

In this         case,          the      December                       13,        1991 order                     of    the          District            Court          is

not     a final             judgment.                  Nor is                it     an interlocutory                                judgment            or order

which       determines                 the        rights                 of the              parties             and directs                   partition              to

be made.               The      Bottomlys                         and the                Grimeses                 illogically                   assert           that

the     order          determines                  the             rights               of        the      parties            because              it     rejects

their        offered             stipulation.                                The             court's              order             merely            gives          the

parties           an extension                         of         time            "to        resolve              the         controversy."                          The

court       stated            that,          if        the             matter            was not                resolved               within           the      time
allowed,               then           the          court                   would                  order           partition                    proceedings.

Partition           will         not        occur                until            after            the         referees             file       their          report

with      the      court             and      the                court            decides                 to     confirm,                  modify,         or        set

aside       the        report           or        to             appoint            new referees.                             Section              70-29-212,

MCA.        We hold             that         the            December                    13,        1991          order         is      not      appealable.

          The      Bottomlys                  and                the      Grimeses                      claim         that          the        issue       of        the

appealability                   of      the            December                    13,            1991         order          is      moot         because             of

this      Court's            previous                  denial              of the                 Manleys'            motion               to dismiss            this

appeal.             An         issue          is            moot           when              it         has      ceased              to      exist.              This

Court's           summary               order                    denying                 the            motion           to          dismiss             did         not

obliterate              this          issue;                it     merely               postponed                  our        consideration                     of     it

until       a full            review              of        the          record              was made.

          IT      IS        ORDERED that                            this           matter                 is      dismissed                  and        shall          be

returned               to       the          District                        Court                  for          further                  proceedings                  in

compliance              with          that         court's                   December                     13,     1991         order.




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We concur:




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Justice          William            E.         Hunt,        Sr.,         dissenting.

           I     dissent.                 If        the      oral            agreement                   in      Hetherington                      v.         Ford
Motor          Company         (1993),               Montana             Supreme            Court                Cause         No.        91-602,              was

a      binding             contract,                  as         concluded                 by            the      majority,                      then          the

stipulation                agreed              to    by the             parties            in       this          case         is        even      more          of

a binding              contract                because            all        of     the     parties                   were      present                 at     the

time       the       stipulation                    was made,            and all            of the               parties            orally              agreed

to     execute          the    contract.                     In Hetherinaton,                             it     was the             attorneys                 who
spoke          for      the     plaintiffs                       and         agreed            to         a contract                     that,           in      my

opinion,             was      not        fully            determined,                    while            here,         it      was        clear              that
the     parties             reached                 an oral             agreement                   in         each     other's              presence,

which          was subsequently                       reduced            to writing                      by the         Manleys'             attorney.

The document                was executed                     by the           Bottomlys                   and Grimeses,                     but         not      by

the     Manleys.              The District                       Court        order         does               determine             the         rights          of
the      parties            because                 the      Bottomlys                   and        Grimeses                  are        entitled                to

enforce           their        contract                   with         the        Manleys                for      the        partition                  of     the

property,              based         on the               rationale                 in     Hetherinqton.                             I     would              hold
that       the        order         was         final            and     appealable                      and       I would               reverse               the

District             Court.




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