Grimes Motors, Inc. v. Nascimento , 244 Mont. 147 ( 1990 )

No. 90-049
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
GRIMES MOTORS, INC. ,
Plaintiff and Respondent,
-v-
JOSEPH F. NASCIMENTO,
Defendant and Appellant.
rs
.I
.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dennis G. Loveless, Helena, Montana
For Respondent:
Robert J. Sewell, Jr., Smith Law Firm, Helena,
Montana
submitted: June 20, 1990
Decided: August 20, 1990
Filed:
I
Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant Joseph I?. Nascimento appeals from the order of the
District Court of the First Judicial District, Lewis and Clark
County, State of Montana, dismissing his appeal from the Justice
Court order, which dismissed his motion for relief from judgment.
We affirm.
The determinative issue on appeal is whether Rule 6(e),
M.R.Civ.P., and Rule 6C, M.J.C.R.Civ.P., apply to an appeal from
justice court to district court.
On February 22, 1989, appellant tendered a check for $518.90
to respondent for repairs to his pickup. The bank allegedly
returned the check for nonsufficient funds. Appellant asserts that
he stopped payment on the check because he felt that the repairs
should be covered under his new vehicle warranty.
Respondent filed a complaint in the Justice Court of Lewis and
Clark County, State of Montana, on April 24, 1989. The complaint
named ''Manuel A. (Joe) Nascimentol' as defendant. Appellant was
served with summons and complaint. Appellant then moved to dismiss
for lack of service because appellant was incorrectly named in the
complaint. On June 8, 1989, respondent amended the complaint, this
time naming ''Joseph F. Nascimentol'as defendant. On June 27, 1989,
the Justice Court denied the motion to dismiss and allowed
appellant five days from that date to answer the amended complaint.
Defendant failed to file an answer. After the five day
period, respondent filed a request for default due to defendant's
failure to answer. On July 28, 1989, the Justice Court granted the
default. That same day, the Justice Court entered a judgment in
favor of respondent and against appellant in the amount of
$1,081.90, with 10% interest, and costs of $35.00, for a total of
$1,116.90.
On August 4, 1989, appellant moved the Justice Court to set
the default aside. Appellant's motion was supported by an
affidavit which stated that appellant had filed another lawsuit in
District Court which was essentially a counterclaim, and that
appellant's counterclaim, when combined with the original amount
in the complaint, exceeded the dollar amount under the Justice
Court's jurisdiction. Appellant further alleged that he had been
told by the Justice Court staff that the filing of the counterclaim
would automatically transfer the case file to District Court
without any additional action on his part. From this conversation,
appellant understood that the entire case would be transferred to
District Court.
On August 28, 1989, the Justice Court denied appellant's
motion to set aside. On September 29, 1989, 32 days after the
denial of appellant's motion, appellant filed a notice of appeal
with the Justice Court.
After a briefing and oral argument schedule, the District
Court entered an order on January 12, 1990, dismissing the appeal
as untimely and granting respondent $50.00 in costs. On January
19, 1990, the District Court entered an order directing the Clerk
of Court to disburse $1,262.89 of the appeal security to respondent
and remit the balance to appellant. This appeal followed.
The first issue is whether Rule 6(e), M.R.Civ.P., and Rule 6C,
M.J.C.R.Civ.P., apply to an appeal from justice court to district
court.
The right of appeal from justice court to district court is
purely statutory. Electric Coop. Inc. v. Anhalt, 127 Mont. 71, 257
P.2d 889 (1953). Generally, unless an appeal from justice court
is taken within the time and effectuated in accordance with the
regulations prescribed by law, the district court has no
jurisdiction. See Davis v. Bell Boy Gold Min. Co., 101 Mont. 534,
54 P.2d 563 (1936) .
Section 25-33-101 through 104, MCA, exclusively governs
appeals from justice and city courts to district court. Section
25-33-102, MCA, provides that a party may appeal the judgment in
a civil action in justice court to district court "within 30 days
after the rendition of the judqment."
Although not specifically defined by the Montana courts,
numerous other jurisdictions have defined the rendition of a
judgment as the judicial act of the court in pronouncing the
sentence of the law, as opposed to entry of a judgment which is a
ministerial act performed by the clerk of court, such as docketing,
entering, or recording the judgment. See Valley Natll Bank of
Arizona v. Meneghin, 634 P.2d 570 (Ariz. 1981); Casati v. Aero
Marine Management Co., Inc., 356 N.E.2d 826 (Ill. Ct. App. 1976);
Carter v. Board of Zoning Appeals, 377 S.W.2d 914 (Tenn. 1964).
See State v. Mortenson, 175 Mont. 403, 574 P.2d 581 (1978), where,
in a criminal case, the time for an appeal from justice court to
district court commenced from judgment rendered in open court. See
generally Karell v. Amer. Cancer Society, 46 St.Rep. 1593, 779 P.2d
506 (Mont. 1989).
In this case, the default judgment against appellant was
rendered by the Justice Court on July 28, 1989. Appellant then
filed a motion to set aside the judgment. This motion suspended
the commencement of the 30 day time set for appeal. The Justice
Court rendered judgment upon the motion to set aside on August 28,
1989. Based upon $3 25-33-102, MCA, appellant had 30 days from
August 28, 1989, to file his notice of appeal. The 30th day was
September 27, 1989. Appellant filed his appeal on September 29,
1989, 32 days after the date the judgment was rendered, and two
days late.
Appellant argues that Rule 6(e), M.R.Civ.P., and Rule 6C,
M.J.C.R. Civ.P., are applicable to this case. Appellant is
mistaken. As indicated above, $38 25-33-101 and 25-33-102, MCA,
exclusively govern the time for filing the notice of appeal from
justice court to district court.
The time for appeal in this case commenced with the
llrenditionll the judgment of the justice court as provided in 9
of
25-33-102, MCA. Because appellant filed his notice of appeal 32
days after judgment was rendered, the District Court properly
dismissed appellantls appeal.
The second issue, whether the security posted by appellant and
released to respondent should be reinstated pending this appeal and
until a final determination of this case, need not be discussed due
to the resolution of the first issue.
Affirmed .
Justice
We Concur: