Beach v. Destination Enterprises I ( 1974 )

No. 12637
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1974
REX F. BEACH,
P l a i n t i f f and A p p e l l a n t ,
DESTINATION ENTERPRISES, I N C . ,
Defendant and Respondent.
Appeal from: District Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
A l l e n L. McAlear a r g u e d , Bozeman, Montana
F o r Respondent :
Berg, Angel, A n d r i o l o and Morgan, Bozeman, Montana
Brown and G i l b e r t , Bozeman, Montana
Gene I. Brown a r g u e d , Bozeman, Montana
Submitted: September 9 , 1974
~ e c i d e: qct
d 4 1934
Filed : xtt I974
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from an order of the eighteenth
judicial district, in and for Gallatin County, denying appellant's
motion for reinstatement.
The facts of this appeal involve two lawsuits filed at
approximately the same time. The first suit, titled ~estination
Enterprises v. Beach, Gallatin County cause No. 19073, was filed
on August 5, 1970. This suit was to establish title to the land
in question as well as for money damages for reasonable rental
of the real property and for an injunction. Beach was represented
in this action by the law firm of Morrow, Nash & Sedivy of Bozeman.
The present suit, from which this appeal arises, Beach v.
Destination Enterprises, cause No. 19079, was filed on August 10,
1970. This suit was also to establish title to the real property
but was also for money damages for certain labor, expenses and
certain promissory notes. Although the two cases duplicated each
other, cause No. 19079 was for additional claims for money due.
Beach was represented in this action by the law firms of St. Clair,
St. Clair, Hiller & Benjamin of Idaho Falls, Idaho, and the law
firm of Berg, Angel, Andriolo & Morgan of Bozeman as local counsel.
An answer and cross-claim was filed in cause No. 19073.
The cross-claim was for title to the real property or in the al-
ternative, for a money judgment for money expended on the real
property.
In cause No. 19079, summons was issued and served on
Destination Enterprises on August 11, 1970. Destination appeared
by its attorney and filed a motion to dismiss on September 23,
1970. On October 5, 1970, the motion to dismiss was overruled and
Destination was allowed twenty days within which to answer or
further plea.
The trial of cause No. 19073 was held on March 29, 1972.
Beach was present in open court together with his attorney in
cause No. 19073, James H. Morrow. At the trial, in open court,
the attorney for Destination moved to dismiss cause No. 19079
for failure to prosecute. This motion was granted without ob-
jection from Beach or Mr. Morrow. All parties and the court
relied on the fact that cause No. 19079 was abandoned by Beach.
He elected to pursue cause No. 19073.
A minute entry of the dismissal was sent to the attorneys
of record in cause No. 19079 on March 29, 1972.
The next action on cause No. 19079 was on August 16, 1973,
when Allen L. McAlear of Bozeman was added as counsel of record
for Beach. On August 21, 1973, a motion for reinstatement of the
cause was filed. This motion was denied on September 6, 1973.
This appeal is taken from the order denying the motion for rein-
statement.
Beach has presented four issues to this Court on appeal.
We resolve this appeal, however, by holding that a timely appeal
was not taken from the order dismissing the case and, as such,
this Court is without jurisdiction to hear the appellant's case
on the merits.
An analysis of the appellant's brief clearly shows that
his objection is to the dismissal of the case. The appellant's
legal position is that the case should not have been dismissed
for the various reasons stated in his brief. Yet the order dis-
missing the case stood unchallenged for over seventeen months.
The order granting the motion to dismiss was an appeal-
able order. In the case of Prentice Lumber Company, Inc. v.
Hukill, 161 Mont. 8, 504 P.2d 277, 279, 29 St.Rep. 1029, where
a motion to dismiss was granted, but judgment was not entered
pursuant to the order, this Court stated:
" * * * Accordingly, we hold that an order dis-
missing a complaint and denying leave to amend
is equivalent to a final judgment for pur-
poses of appeal."
Appellant had a right to appeal the order dismissing
his lawsuit. That right was lost through inaction. He cannot
now revive his right to an appeal by his motion for reinstate-
ment.
It should be noted that this was not an involuntary
dismissal granted without notice. The motion for dismissal was
made in open court during the trial of the companion suit. Beach
and his attorney in the companion suit were present. The order
was granted without objection. Notice of the order of dismissal
was immediately given to the attorneys of record in this suit.
The facts support the conclusion that this was done as part of
the strategy in the trial of the companion case and that there
was an intentional abandonment of this lawsuit. This conclusion
is supported by the fact that it was seventeen months later,
when a new attorney entered the case, before any action was taken
to avoid the dismissal.
The appeal is dismissed.
u Justice
We concur:
Justices I