State Ex Rel. Department of Highways v. Helehan , 171 Mont. 473 ( 1977 )

No. 13554
IN THE SUPREllE COURT OF THE STATE OF MONTANA
1977
THE STATE OF MONTANA, ACTING BY
AND THROUGH THE DEPARTMENT OF
HIGHWAYS OF THE STATE OF MONTANA,
Plaintiff and Appellant,
TIlOr4AS J. HELEBAN,
Defendant and Respondent.
Appeal from: District Court of the Second Judicial
District
Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellant:
Daniel J. Sullivan argued, Helena, Montana
For Respondent:
Stimatz and Engel, Butte, Montana
Joseph C. Engel argued, Butte, Montana
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Submitted: January 11, 1977
& & 8 1177
Filed.! :G..
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
In a highway condemnation action, the district court
of Silver Bow County entered judgment for the property owner
in the amount of $87,742.04. The State of Montana appeals from
the judgment and denial of its motion to alter or amend the
judgment .
The action was originally filed by the State in 1965
against multiple defendants owning fractional interests in the
property sought to be condemned. By 1976 the only remaining
defendant was Thomas Helehan who owned a 1/8 interest in the
property.
Commissioners were appointed to determine the value of
Helehan's interest in the property. On June 15, 1976, the com-
missioners' report was filed with the clerk of the district court
and copies were mailed to the respective attorneys. A copy of
the commissioners' report was received by the State on June 16.
On July 16 the State mailed its notice of appeal from
the commissioners' award to the clerk of court and to the attor-
ney for the property owners. On July 19 judgment was entered on
the commissioners' report which included the amount of the award,
survey costs, appraisal fees, interest, attorney fees and costs.
On the same date the State's notice of appeal from the commission-
ers' award was received by the clerk of the district court and
filed.
Thereafter the State moved to alter or amend the judgment
which, in effect, was a motion to vacate the judgment. Follow-
ing hearing, the district court denied this motion and entered
findings of fact, conclusions of law and an opinion. The State
then filed its notice of appeal from the judgment and order of
the district court denying its motion.
The gist of the district court's decision was that the
State's notice of appeal was filed too late. The district court
held the controlling statute, section 93-9915, R.C.M. 1947,
required the notice of appeal to be served on the property
owner's attorney - filed with the clerk of court within 30
and
days after service of notice of the commissioners' award on the
State's attorney and filing with the clerk of court. The dis-
trict court held that such service was completed on June 15
and the time for appeal expired on July 15 at 5:00 p.m.
The controlling issue on appeal is the timeliness of
the State's appeal from the commissioners' award.
The statutory procedure (section 93-9915) for an appeal
from a commissioners' award provides in pertinent part:
"An appeal from any assessment made by the comrnis-
sioners may be taken and prosecuted in the court
where the report of said commissioners is filed
by any party interested. Such appeal must be taken
within the period of thirty (30) days after the
service upon appellant of the notice of the filing
of the award by the service of notice of such appeal
upon the opposing party or his attorney in such
proceedings and the filing of the same in the dis-
trict court wherein the action is pending * * *."
Here the commissioners' report was served on the State
on June 15. Service by mail is complete upon mailing. Rule 5(b),
M.R.Civ.P. See Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 and
Herdegen v. Oxarart, 141 Mont. 464, 378 P.2d 655, decided under
section 93-8504, R.C.M. 1947, the statutory predecessor of Rules
5 and 6, M.R.Civ.P.
However, service did not become effective until June 18
for the purpose of calculating the 30 day appeal period. Rule
6 (e), M.R.Civ.P., states:
"(e) Additional Time After Service by Mail. When-
ever 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 him and the notice or paper is served upon
him by mail, 3 days shall be added to the prescribed
period. "
In accord: Lewistown Propane Co. v. Utility Builders Inc.,
- 3 -
Mont. , 552 P.2d 1 1 0 0 , 33 St.Rep. 745.
Thus, t h e 30 day a p p e a l p e r i o d would n o r m a l l y end on
J u l y 18. But h e r e J u l y 1 8 , 1976, f e l l on a Sunday s o t h e a p p e a l
p e r i o d d i d n o t e x p i r e u n t i l t h e end o f t h e n e x t d a y , J u l y 1 9 .
Rule 6 ( a ), M.R.Civ.P. provides i n r e l e v a n t p a r t :
" ( a ) Computation. I n computing any p e r i o d o f t i m e
p r e s c r i b e d o r a l l o w e d * * * by any a p p l i c a b l e
s t a t u t e , t h e day of t h e a c t * * * a f t e r which t h e
d e s i g n a t e d p e r i o d of t i m e b e g i n s t o r u n i s n o t t o
be i n c l u d e d . The l a s t day o f t h e p e r i o d s o com-
p u t e d i s t o be i n c l u d e d , u n l e s s it i s a S a t u r d a y ,
Sunday o r a l e g a l h o l i d a y , i n which e v e n t t h e p e r i o d
r u n s u n t i l t h e end o f t h e n e x t day which i s n e i t h e r
a S a t u r d a y , Sunday n o r a h o l i d a y . * * * "
I n accord: Lewistown Propane Co. v . U t i l i t y B u i l d e r s I n c . , supra;
Grey v . S i l v e r Bow County, 1 4 9 Mont. 213, 425 P.2d 819.
Hence t h e S t a t e ' s n o t i c e o f a p p e a l w a s t i m e l y f i l e d on
Monday, J u l y 19. The judgment of t h e d i s t r i c t c o u r t i s v a c a t e d
and t h i s c a u s e remanded t o t h e d i s t r i c t c o u r t o f S i l v e r Bow County
f o r t r i a l on t h e i s s u e of damages.