                                NO.     94-111
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1994



DAVID    DUNKELBERGER,
        Respondent and Petitioner,


BURLINGTON NORTHERN
RAILROAD COMPANY.
        Appellant and Respondent.




APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and for the County of Cascade,
                  The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                  Jeff Hedger, Kroschel & Yerger, Billings, Montana
             For Respondent:
                  Kurt M.     Jackson, Hoyt & Blewett, Great Falls,
                  Montana


                                      Submitted on Briefs:   April 19, 1994
                                                  Decided:   June 2, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

        This action is before the Court on Petitioner Dunkelberger's

motion to dismiss.    We grant Dunkelberger's motion for dismissal of

this appeal.
        We consider the following issue on review:

        Pursuant to Rule 6(a), M.R.Civ.P., were December 24, 1993 and

December 31, 1993, either      "holidays" or "legal holidays*' in 1993
because both Christmas Day and New Year's Day fell on Saturdays?

        Burlington Northern (BN) filed a notice of appeal on March 11,

1994,    seeking to reverse a jury verdict entered on December 14,

1993     in   favor   of   Petitioner    Dunkelberger   (Dunkelberger).
Dunkelberger has petitioned this Court to dismiss BN's appeal

because the notice of appeal was filed too late under the Montana

Rules of Civil Procedure.
        Notice of Entry of Judgment reflecting the jury verdict was

filed and mailed to BN's attorneys on December 15, 1993. BN filed

a motion for extension of time on December 29, 1993, erroneously

believing that it could extend the ten-day time period in which to

serve notice of a motion for new trial pursuant to Rule 59(b),

M.R.Civ.P.     Subsequently,   BN filed its motion for a new trial on

January 4, 1994.      The court ruled on BN's motion for extension of

time to file a post-trial motion for new trial on January 7, 1994,

three days after the motion for extension of time was filed.        The

court never ruled on the January 4, 1994 motion for new trial.

        Dunkelberger contends that BN is limited to ten days in which

to serve a motion for new trial pursuant to Rule 59(b), M.R.Civ.P.

                                     2
Dunkelberger further contends that a party has thirty days to
appeal a judgment according to Rule 5, M.R.Civ.P., unless the party

requests an extension of time, which was not done in this case in
accordance with the rule.      Dunkelberger argues that because RN's

motion for new trial was served after the ten-day limit, the

thirty-day time limit for filing an appeal was not tolled and,

thus, its appeal is untimely and must be dismissed.

     BN contends that interpretation of Rule 6(a)                and   6(e),

M.R.Civ.P.,   concerning   computation   of   time   involving   post-trial

motions,   in addition to appropriate statutes as well as rules

issued by the Department of Administration,            indicate that its

motion for new trial was timely.         According to RN, because its

motion was timely and because the court did not rule on this

motion, the motion was deemed denied forty-five days after filing

or February 22, 1994, pursuant to Rule 59(d). RN contends that the

thirty-day appeal time began to run on February 23, 1994, making
its March 11, 1994, appeal timely.

     In order to understand the procedure and time constraints

required of the parties in this case, we quote the following rules

from the Montana Rules of Civil Procedure:

     Rule 59(b).   Time for motion.   A motion for new trial
     shall be served not later than 10 days after service of
     notice of the entry of the judgment.   (Emphasis added.)

     Rule 59(d).   Time for ruling on motion.    If the court
     shall fail to rule on a motion for new trial within 45
     days from the time the motion is filed, the motion shall,
     at the expiration of said period, be deemed denied.

     Rule 6(a). Computation. In computing any period of time
     prescribed or allowed by these rules, by order of court,
     or by any applicable statute, the day of the act, event,

                                    3
     or default after which the designated period of time
     begins to run is not to be included. The last dav of the
     period so COmDUted is to be included, unless it is a
     Saturday. Sunday or leaal holiday, or, when the act to be
     done is the filing of a paper in court, a day on which
     weather or other conditions have made the office of the
     clerk of the district court inaccessible, in which event
     the period runs until the end of the next day which is
     not one of the aforementioned days. When the DeriOd of
     time urescribed or allowed is less than 11 davs.
     intermediate Saturdavs, Sundays and holidays shall be
     excluded in the commutation. . . . (Emphasis added.)

     Rule 6(b).    Enlargement.  When by these rules or by a
     notice given thereunder or by order of court an act is
     required or allowed to be done at or within a specified
     time, the court for cause shown may at any time in its
     discretion (1) with or without motion or notice order the
     period enlarged if request therefor is made before the
     expiration of the period originally prescribed or as
     extended by a previous order or (2) upon motion made
     after the expiration of the specified period permit the
     act to be done where the failure to act was the result of
     excusable neglect: but it mav not extend the time for
     takins any action under Rules 50(b) and (c)(2), 52(b),
     590, Cd) r (e) and (g) and 60(b), except to the extent
     and under the conditions stated in them.        (Emphasis
     added.)

     Rule 6(e).    Adclitional time after service by mail.
     Whenever a party has the right or is required to do some
     act or take some proceedings within a prescribed period
     after the service of a notice or other paper upon the
     party and the notice or paper is served upon the party &
     mail. 3 davs shall be added to the Drescribed Deriod.
     (Emphasis supplied.)

     We firstnote that Rule 59(b), M.R.Civ.P.,   requires only that

the motion for new trial be "served" within ten days.     The rule
does not state that the motion must be filed. Service on the other

party in an action can be accomplished without the use of the

courts of this State.   Service means providing the other party or

the party's counsel with a copy of the applicable document.      Rule

5(b) t M.R.Civ.P.
     We note that counsel in this case may have orally stipulated

                                 4
to an extension of time in which to bring the motion for a new
trial.     In    its    Motion   for      Extension   of   Time,     BN stated,
"Plaintiff's counsel has been contacted and has no objection to

this motion for extension of time."             Counsel cannot stipulate to

override the effect of the mandatory time constraints contained

within the Montana Rules of Civil Procedure.                We    emphasize   here

that Rule 59(b), M.R.Civ.P., provides that the ten days permitted
for service of a motion for new trial cannot be extended under any

circumstances.

     The legal question which we must answer is whether                       EN's
calculation of the ten days was correct.              Rule 6(e), M.R.Civ.P.,

states that when service of a motion is by mail, three days mailing

time must be counted before the ten days' time for service of

motion   can   begin.    DeTienne      Assoc.   v. Montana Rail Link, Inc.

(1993) I 261 Mont. 238, __,         862   P.2d 1106, 1108.       As discussed in

more detail below, our opinion in DeTienne was intended to clarify
the method for calculating the prescribed period of time when

service of a motion is made by mail if such prescribed period is

less than eleven days.

     In order to accurately calculate the ten-day period, we first

must consider the meaning of the words "holidays" and                     V*leqal

holidays" found in the computation rule, Rule 6(a), M.R.Civ.P. If
BN is correct, its motion for new trial was timely and subject to

the forty-five day automatic denial as well as the tolling of the

thirty days permitted by the rules of appellate procedure for

filing an appeal.


                                           5
        Notice of Entry of judgment was mailed on December 15, 1993.
We do not count the day of mailing, but rather begin counting the

three days on December 16, 1993.         Thus, the three days allowed for

mailing ended on December 18,            1993--a   Saturday.    Rule   6(a),

M.R.Civ.P., provides that when a rule calls for less than eleven

days,    Saturdays and Sundays are not counted.        However, we held in

DeTienne that Saturdays and Sundays would not be excluded from the
initially added three days which are allowed for mailing and that

these days would be counted prior to the counting of the prescribed

period for serving a motion.       DeTienne, 862 P.2d at 1108.

        We must then begin our calculations on December 20, 1993, a

Monday, and include December 21, 22, 23, 24, 27, 28, 29, 30 and 31,

1993.    The tenth and final day for serving was Friday, December 31,

1993.    Under the foregoing calculation, BN's motion was not served

in   time.
        BN argues that December 24 and December 31were legal holidays

because the Department of Administration had so provided in

2.21.620, ARM, and these dates should be excluded.             Dunkelberger

contends that the days before Christmas Day and New Year's Day,

that being December 24 and December 31, are not legal holidays and

should not have been considered as holidays in the calculation of

the ten day period.     Whether these two days are "legal holidays" or

some other kind of holiday because Christmas Day and New Year's Day

fell on Saturdays is the key question.                If they are either

l'holidaysV*   or "legal holidaystl according to the rule, then BN would

have filed and served its January 4, 1994 motion for new trial

                                     6
within the ten-day period.
     Dunkelberger cites § 1-1-216, MCA,   for the proposition that
December 24 and December 31 are not legal holidays.    Section l-l-

216, MCA, in pertinent part provides:

     Legal holidays and business days. (1) The following are
     legal holidays in the state of Montana: . . .
     (b) New Year's Day, January 1;

     ikj 'Christmas Day, December 25;

     i2j 'I; any of the above enumerated holidays . . . fall
     upon a Sunday, the Monday following is a holiday.   All
     other days are business days.

The statute makes no provisions       for the   circumstance   where
Christmas Day and New Year's Day fall on Saturdays.     Nor does it

list December 24 and 31 as "legal holidays."
     BN   attempts to rebut this argument by stating that the
Department of Administration has issued regulations which make this

very determination with regards to holidays that fall on Saturdays.

2.21.620, ARM.   It is true that the Administrative Rules of Montana

make this determination--but only within the context of holidays

for state personnel.

     Dunkelberger would have us       interpret the aforementioned

Administrative Rules within the confines of § 3-l-302, MCA:

     (1) No court may be open nor may any judicial business be
     transacted on legal holidays, as provided in 1-1-216,
     MCA, and on a day appointed by the president of the
     United States or bv the governor of this state for a
     public fast. thankssivins. or holidav . . . . (Emphasis
     added.)

This statute speaks to the issue of the availability of courts.   BN

contends that pursuant to the Administrative Rules of Montana, all

courts in the State of Montana, including the Supreme Court, were
                                  7
closed on December 24, 1993, and December 31, 1993--the          Fridays
preceding the holidays.

     It is true that all state employees and court personnel of the
State of Montana did not work on the Fridays before Christmas Day

and New Year's Day in accordance with 2.21.620, ARM. However, what

we are concerned with is service on a law office which is a private

business.     No evidence exists in the record to indicate that
private businesses were closed in Montana on that date. In

addition, we point out that there is no evidence that the Governor

of the State appointed these days as holidays under the statute.
We conclude that whether the courts were open on December 24 and

December 31 is not decisive because BN's responsibility was to

"serve" notice on Dunkelberger's counsel.       Service does not require

accessibility to the court system of this state.

     No evidence exists to indicate that December 24 and December
31 were V*holidaysV1   or "legal holidayst@   within the meaning of Rule

6(a) I M.R.Civ.P.      Therefore,   BN had until December 31, 1993, in

which to serve notice on Dunkelberger that it was filing a post-

trial motion for a new trial.

     We conclude that BN has miscalculated the time in which to

file its motion for new trial and, therefore, its March 11, 1994

appeal of the underlying judgment was not timely made.        This Court

has no alternative but to dismiss this action due to an untimely

appeal and for lack of jurisdiction to co




                                      8
J &ices
                                             June 2. 1994

                                    CERTIFICATE OF SERVICE

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


  Jeff Hedger, Esq.
  Kroschel & Yerger
  282%3rd Ave. No., Ste. 607
  Billings, MT 59101

  Alexander Blewett, III
  Hoyt & Blewett
  P.O. Box 2807
Great Falls, MT 59403-2807

                                                       ED SMITH
                                                       CLERK OF THE SUPREME COURT
                                                       STATE q MqNTeNA
