Hamilton v. Rybar , 111 Idaho 396 ( 1986 )

SHEPARD, Justice.

Judgment was entered in favor of defendant Rybar on June 26, 1985. On July 5, 1985 Hamilton filed a motion for a new trial pursuant to I.R.C.P. 59(a), which motion was denied by the trial court on September 10, 1985. On September 27, 1985 Hamilton filed a motion for reconsideration, which motion was denied on October 23, 1985. On December 3, 1985 Hamilton filed a notice of appeal seeking to appeal from the judgment, the order denying Hamilton’s motion for a new trial, and the order denying Hamilton’s motion for reconsideration.

An appeal from a judgment must be perfected by filing a notice of appeal within 42 days of the judgment’s entry. I.A.R. 14. The time for filing such a notice of appeal is terminated by the filing of “a timely motion which, if granted, could affect findings of fact, conclusions of law or judgment (except motions under Rule 60 of the Idaho Rules of Civil Procedure or motions regarding costs or attorney fees), in which the appeal period commences to run upon the date of the filing stamp on the order deciding such motion____” (Emphasis added.) It is sufficient to say that the post-judgment motions at issue here were not taken under I.R.C.P. 60(a), nor do they involve costs or attorney fees.

As demonstrated by the above set forth chronology, Hamilton’s motion for a new trial was filed within ten days of the entry of judgment and hence was a timely motion which terminated the 42-day period of time within which to appeal. The motion for new trial was denied by order dated September 10, 1985, which reinstated the 42-day period within which an appeal should have been filed. The motion for reconsideration was not filed within ten days of the order denying the motion for new trial, and was filed approximately 90 days after the entry of judgment.

As this Court has observed in the past, the Idaho Rules of Civil Procedure do not provide for a petition to reconsider. Nevertheless, such a motion has been treated as a motion to alter or amend judgment pursuant to I.R.C.P. 59(e). Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977).

Even assuming that Hamilton’s motion to reconsider the court’s denial of the motion for reconsideration could be considered by the court as a motion to alter or amend the judgment under Rule 59(e), the motion was untimely since not filed within the ten days specified by I.R.C.P. 59(e). “Since the motion was not filed within ten days of entry of judgment, the court had no power to grant the requested relief____ The motion was properly denied.” Wheeler v. MacIntyre, 100 Idaho 286, 596 P.2d 798 (1979). See also Spivey v. District Court, 37 Idaho 774, 219 Pac. 203 (1923); Turner v. Evers, 726 F.2d 112 (3rd Cir. 1984); American Sec. Bank v. Harrison Realty, 670 F.2d 317 (D.C.App.1982).

We hold, therefore, that the portion of this cause purporting to be an appeal from the judgment or from the denial of the motion for new trial is hereby dismissed as being untimely filed. As to that portion seeking to appeal from the denial of the motion for reconsideration, we summarily affirm the order denying the motion for reconsideration since even if it be considered as a motion to alter or amend the judgment, the motion was not timely filed.

Dismissed in part; affirmed in part.

DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.