                                No. 89-299

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



DENNIS MURNION and KIMBERLY MURNION,
                 Plaintiffs and Appellants,
         -vs-
HEBERLE FORD COMPANY, a Montana business
organization,                                                  I!'          -7
                                                               -'."   . .   -2


                 Defendant and Respondent.




APPEAL FROM:  District Court of the Thirteenth Judicial District,
              In and for the County of Yellowstone,
              The Honorable b,              Judge presiding.
                            Tu*\\ R\\ae9
COUNSEL OF RECORD:
         For Appellant:
                  Roy W. Johnson, Stephens Law Firm, Billings, Montana
         For Respondent :
                   Guy Rogers; Anderson, Brown Law Firm, Billings, Montana



                                    Submitted on Briefs:   Nov. 21, 1989
                                      Decided:   Rebruary 5, 1990
                                           *
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.

     Dennis and Kimberly Murnion, plaintiffs, filed a motion under
Rule 60 (b), M.R.Civ.P.,     in the District Court of the Thirteenth
Judicial District, Yellowstone County.     The plaintiffst requested
that the court relieve them of the order granting defendant Heberle
Ford's motion for summary judgment on the basis of newly discovered
evidence.    The District Court denied plaintiffs' motion and the
plaintiffs appealed.    We affirm.
     On February 5, 1983, Dennis Murnion was riding as a passenger
in a 1962 truck owned and driven by his brother, Mark Murnion.
Dennis was injured when the truck collided with a Burlington
Northern train at an interchange under construction on a state
highway, approximately fifteen miles north of Colstrip, Montana.
Mark had purchased the truck on December 4, 1982 from Heberle Ford,
located in Forsyth, Montana.
     Dennis Murnion and his wife, Kimberly Murnion, subsequently
filed   suit on   February    4, 1986 against several defendants,
including Heberle Ford. The Murnions alleged that Heberle Ford was
negligent, careless and reckless in failing to inspect, test and
service the brake system of the 1962 truck.        On May 15, 1987,
Heberle Ford filed a motion for summary judgment against Murnions'
claims.     After briefing by the parties, the motion was argued
before the District Court. The court subsequently granted Heberle
Ford's motion for summary judgment. The summary judgment order was
entered on July 13, 1987 and the notice of entry of judgment was
served July 14, 1987.
                                   2
     On August 26, 1988, nearly fourteen months after the District
Court granted summary judgment in favor of Heberle Ford, the
Murnions filed a motion in limine or, alternatively, a motion to
reconsider the prior summary judgment order. The motion in limine
requested the court to preclude the defendants from introducing
evidence or offering testimony of any kind showing or attempting
to show that one of the causal factors in the collision was
attributable to a product's failure in connection with the truck's
brake system.   The Murnions alternative motion to reconsider the
prior summary judgment order does not exist as a post-judgment
motion under the Montana Rules of Civil Procedure.         Murnionsl
motion, however, was based upon alleged newly discovered evidence.
We will therefore equate Murnions' motion with a motion pursuant
to Rule 60(b), M.R.Civ.P., so as to allow it to be properly before
this Court.
     The Murnions offered the affidavit of their expert witness,
F. Denman Lee, dated and filed October 17, 1988, as the newly
discovered evidence.     The District Court denied the Murnionsl
motion, stating that the Murnions had not exercised due diligence
in presenting the court with their alleged newly discovered
evidence. The notice of entry of judgment for this order was filed
April 12, 1989.   The Murnions then filed their notice of appeal
from this order on April 17, 1989.
     The sole issue raised on appeal is whether the District Court
erred in denying Murnionst motion under Rule 60 (b), M.R. Civ. P., to
relieve them of the order granting Heberle Ford's motion for
summary judgment on the basis of newly discovered evidence.
     The law is well settled regarding a party seeking relief from
a judgment because of newly discovered evidence.        Before a court
will grant a new trial or relief from a judgment, the moving party
must demonstrate reasonable due diligence in procuring the newly
discovered evidence within the specified statutory time periods.
The pertinent part of Rule 60(b),         M.R.Civ.P.,   for this case
provides :
             On motion and upon such terms as are just, the
             court may relieve a party or his legal
             representative from a final judgment, order,
             or proceeding for the following reasons:
             . . .  (2) newly discovered evidence which by
             due diligence could not have been discovered
             in time to move for a new trial under Rule
             59(b) ; . . . The motion shall be made within
             a reasonable time, and for reasons (I), ( 2 ) ,
             and (3) when a defendant has been personally
             served .  . . not more than 60 days after the
             judsment, order or proceedinq was entered or
             taken   ...  (Emphasis added.)
     The notice of entry of judgment granting Heberle Ford's motion
for summary judgment was served to the Murnions on July 14, 1987.
The Murnions therefore had sixty days to bring forth their alleged
newly discovered evidence and to demonstrate that they exercised
reasonable due diligence in procuring this newly            discovered
evidence.     The Murnions, however, did not file their Rule 60 (b)
motion until August 26, 1988--nearly twelve months after the
statute of limitations expired for filing such a motion.       In light
of the above, the District Court did not err in denying the
Murnions' motion under Rule 60(b), M.R.Civ.P., to relieve them of
the order granting Heberle Ford's motion for summary judgment
because of the Murnions' alleged newly discovered evidence.
     Affirmed.




We concur:




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             Justices
