NO. l4262

II\I'I'I~IESUPRHVIECOLIRI‘OF'I'IIESTA'I'EOFMONI‘ANA

1978

RICIHARDF. WD§|'I‘ERaIKiLD]DALEEW]_`L\]'I'ER,
husband and wife,

Plajntiffs and Respondents,

JUNE RHODES, DON DIEIIL, and
DELBERI‘ GRIE`F`IN,

Defendants and Appellants .

Appeal franz District Court of the Fourth Judicial District,
Honorable Edward T. Dussault, Judge presiding.

Counsel of Record:
For Appella.nts:

Garlington, I_ohn and Robinson, Missoula, Nbntana
Gary L. Graham argued, Missoula, Nbntana

F0r Respondents:

Murray and Holt, Missoula, Nbntana
Harold L. Holt argued, Missoula, Nbntarxa

Suhnitted: OCtOber ].3, 1978
Decided:   

Fil@d, w z 1913

Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.

This negligence action was commenced on March 8, l974.
Defendants' motion for summary judgment was granted on February
l8, 1975. On February 3, l978, plaintiffs moved to set aside
the 1975 summary judgment. On February 21, l978, exactly three
years after summary judgment had been entered in favor of defen-
dants,the District Court for the Fourth Judicial District, the
Honorable Edward Dussau1t presiding, vacated the previous summary
judgment and placed the matter on the court's pretrial conference
calendar. Defendants appealed from this order and plaintiffs have
moved to dismiss the appeal. Oral argument was heard but limited
to the issue raised in plaintiff-respondents' motion to dismiss
this appeal.

Plaintiff Richard Winter was permanently disabled when
defendant Delbert Griffin, employed by defendants June Rhodes and
Don Diehl, knocked a log off Richard Winter's truck while he was
loading it. The log struck Winter, severing his spinal cord.

The District Court granted summary judgment on the author-
ity of Fiscus v. Beartooth (l974), 164 Mont. 3l9, 522 P.2d 87. On
January 8, l978, the Fiscus decision was overruled by this Court's
decision in Piper v. Lockwood (l978), ____Mont.__g_, 573 P.2d
646, 35 St.Rep. 9. Subsequently, the District Court vacated the
previous summary judgment and defendants appealed.

This motion to dismiss concerns the appealability of the
February 21 order. More specifically, the issue presented in
p1aintiffS' motion to dismiss is whether an order vacating summary
judgment is appealable as an order entered after final judgment.

Plaintiffs, the moving party, argue that the decision in
Stensvad v. Montana National Bank (l975), 168 Mont. l67, 541 P.2d
768, controls this situation. In Stensvad this Court found an

order vacating summary judgment interlocutory in nature and,

therefore, not appealable. Defendants contend the February 2l,
1978 order is an appealable order as a "special order made after
final judgment" as delineated in Rule l(b), M.R.App.Civ.P.

Rule 1, M.R.App.Civ.P., does not specifically mention
an order vacating summary judgment as an appealable order. The
only time this Court has considered whether an order vacating
a summary judgment is appealable was in Stensvad. At that time
we expressly held that it was not.

"The controlling issue before this Court is

whether the order vacating the summary judgment

is an order from which an appeal may be taken.

"Rule l, M.R.App.Civ.P., subsections (b) and

(c), set forth from what orders an aggrieved

party may appeal. The order from which appellant

wishes to appeal is not one of the enumerated

orders contained in Rule 1.

"The district court order is interlocutory in

nature, that is, it is not final. The order

vacates the summary judgment and sets the cause

for trial. The rights of the parties have not

been adjudicated, and will not be until such

trial." Stensvad, 168 Mont. at l68, 541 P.2d

at 768.

The instant case falls within the rule enunciated in
Stensvad.

THEREFORE, IT IS HEREBY 0RDERED that the appeal is dis-

missed but without prejudice to the filing of an application

for a writ of supervisory control.

Chief Justice

We concur:

 

Justices
Mr. Justice John C. Sheehy, deeming himself disqualified, did not
participate in the cause. ' *

