In Re the Estate of Stinson , 240 Mont. 1 ( 1989 )

No. 8 9 - 0 4 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN MATTER OF THE ESTATE OF
LOUIS WARREN STINSON, a/k/a
LOUIS W. STINSON, Deceased. Z
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APPEAL FROM:
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District Court of the Twelfth Judicial Distimg, 0
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In and for the County of Chouteau, zx
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The Honorable Chan Ettien, Judge presiding. c W
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COUNSEL OF RECORD:
For Appellant:
~ i l l i a mB. Sherman, Conrad, Montana
For Respondent:
Gale R. Gustafson, Conrad, Montana
submitted on ~riefs:Sept. 1 5 , 1 9 8 9
Decided: November 15, 1 9 8 9
Filed:
Clerk
Justice John C. Sheehy delivered the Opinion of the Court.
Appellants Larry Stinson, Verna Stinson Hudson, and Echo
Joy Stinson Braff, initiated suit in the District Court of
the Twelfth ~udicialDistrict, Choteau County, to contest the
will of their late father, Louis Warren Stinson. Personal
Representative and respondent, Grace C. Stinson, successfully
moved to dismiss the action for failure to prosecute, and
summary judgment was entered. Appellants moved to alter or
amend the judgment pursuant to Rule 59(g), M.R.Civ.P., and
the previous order of September 22, 1988, dismissing the
action was nullified and revoked. Appellants now appeal the
initial order of dismissal to protect their rights, in the
event the District Court order of November 21, 1988 was made
at a time when the Court lacked jurisdiction. We dismiss the
appeal for lack of jurisdiction.
The central issue in this case is whether the ~istrict
Court had jurisdiction to nullify and revoke its September
22, 1988 order dismissing the action for failure to
prosecute.
~ouis Warren Stinson died on April 15, 1984. Respondent
Grace Stinson, his wife of 23 years, applied for and was
appointed Personal Representative of the estate, pursuant to
the deceased's Will of April 18, 1970. The Will devised all
of his estate to Grace Stinson, except for $100 to each of
~ o u i s Stinson's children from a previous marriage
(contestants/appellants).
Grace Stinson initiated informal probate proceedings on
May 3, 1984. Contestants filed petitions for revocation of
appointment of the Personal Representative and to deny
probate on February 28, 1985.
Grace Stinson filed her petition for determination of
testacy, determination of heirs, and for settlement and
distribution of the estate on November 11, 1984. Hearing on
the matter was set for March 26, 1985, but was continued
indefinitely on that date. In that order, the court
commanded counsel to "get together and work up a
pre-pre-trial agreement as to deadlines, exchange of
exhibits, agreed facts, trial dates available and other
matters agreeable."
Correspondence between counsel included in the record
indicates that contestants sought a settlement of $105,000,
to be divided between them. Counsel for Grace Stinson
indicated her refusal to such a settlement, and advised that
a motion for summary judgment was forthcoming if contestants
did not take some action in the matter.
Grace Stinson filed a motion for summary judgment on
March 31, 1986. Contestants moved to vacate the hearing on
the motion, and moved for a pretrial hearing.
The hearing on the motion for summary judgment was set
and subsequently continued on three occasions. These
extensions of time were granted to accommodate the production
of telephone records of contestant Joy Stinson Braff. These
records had been requested to substantiate claims of Joy
Braff that she had, over the years, attempted to maintain
contact with her father.
From the August 4, 1987 order enlarging time, until July
18, 1988, no motions were filed and no hearings on the matter
were held. On July 18, 1988, Grace Stinson moved to dismiss
the contest for failure to prosecute. Memoranda were
submitted, and on September 22, 1988, the court granted Grace
Stinson's motion to dismiss for lack of prosecution. Notice
of entry of judgment of dismissal was filed on September 30,
1988.
Contestants filed their petition for reconsideration
(hereinafter referred to as a Rule 59 (g), M.R.civ.P. motion
to alter or amend a judgment) on October 17, 1988.
Contestants stated in an accompanying memorandum that they
had not been sleeping on their rights, that the motion for
dismissal was filed on July 18, 1988, less than two years
after the August 20, 1986 affidavit of Joy Stinson Braff.
The court concurred with the contestants and granted the
motion to alter or amend the dismissal order of September 22,
1988, thereby nullifying and revoking that order.
Contestants now appeal the September 22, 1988 order of
dismissal "to protect the rights of contestants in the event
the ~ i s t r i c t Court order of November 21, 1988 denying the
motion for dismissal was made at a time when the Court did
not have jurisdiction."
Rule 59(g), M.R.Civ.P., states in part:
Motion to alter or amend a judgment. A motion to
alter or amend a judgment shall be served not later
then 10 days after the service of the notice of
entry of the judgment . . ..
This Court has steadfastly held the district courts to a
strict interpretation of this rule and "no judge may
disregard the requirement as set forth in Rule 59." ~ a i nv.
~arrington (1973), 161 Mont. 401, 506 P.2d 1375. Proper
application of Rule 59(g) clearly prohibits the granting of
requested relief when the motion is not timely served.
McDonald v. McDonald (1979), 183 Mont. 312, 599 P.2d 356.
The ~ i s t r i c t Court issued the order of dismissal on
September 22, 1988. Notice of entry of judgment was served
on September 30, 1988. Contestants did not file their Rule
59(g) motion to alter or amend judgment until October 17,
1988. Even adding an additional three days as provided by
Rule 6(e), M.R.Civ.P., the motion should have been filed by
October 13, 1988. Because it was filed too late, the trial
court did not have jurisdiction to hear or determine the
motion to amend the judgment. ~ccordingly, the ~istrict
Court's order of November 21, 1988 is a nullity and cannot
stand. O'Connell v. ~eisdorf (19821, 202 Mont. 89, 656 P.2d
199; Matter of Estate of Gordon (Mont. 1981), 628 P.2d 1117,
38 St.Rep. 887.
In addition, because the motion to amend the judgment
was filed too late, the time for filing notice of appeal was
not suspended. ~ o t i c eof appeal was filed on November 29,
1988, two months after entry of judgment, well beyond the 30
day time limit provided in Rule 5, M.R.App.Civ.P. Absent a
timely notice of appeal, this Court does not acquire
jurisdiction to determine an appeal on the merits. price v.
Zunchich (1980), 188 Mont. 230, 612 P.2d 1296; O1Connell,
supra. The order of September 22, 1988 dismissing for
failure to prosecute therefore remains in effect and is no
longer appealable.
Appeal dismissed.
( L.L-4- -4. /2i2L.tdV
Justice
we/ Concur : I //