Boles v. Ler

No. 84-111
IN THE SUPREME COUR!ilOF THE STATE OF MONTANA
1984
LEONARD AND BONNIE BOLES,
Plaintiffs and Appellants,
-vs-
VERA LER,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable R. C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Lloyd E. Hartford, Billings, Montana
For Respondent :
Koch & Carter, Sidney, Montana
Submitted on Briefs: July 19, 1984
Decided: November 14, 1984
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.-
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Plaintiffs Leonard and Bonnie Roles, as the contract
purchasers of land, appeal an order of the Richland County
District Court 9ranting summary judgment to the contract
seller of the land, Vera Ler. The plaintiffs claim issues of
fact remain on the question of whether the seller properly
invoked the forfeiture provisions of the contract. The
plaintiffs also claim the court erred in awarding attorney
fees to the seller based on the seller's counterclaim relying
on a separate security agreement signed by the purchasers.
Because the appeal-is not properly before us at this time, we
must remand for further proceedings. This Court does not
have before us an appealable order. It is a non-certified
partial summary judgment.
On October 19, 1983, the trial court entered judgment
against the purchasers on the summary judgment question, and
further ordered the seller was entitled to attorney fees.
The court ordered another hearing on October 28 to determine
the amount of the attorney fees. Before that date, however,
the purchasers moved to amend the findings and for the court
to find each party must bear its own costs and attorney fees.
Tn a later order on November 21, the trial court amended its
judgment and provided further it would not rule on the
attorney fees question until there were additional pleadings
and. motions regarding the basis for the claimed fee. The
same day, November 21, 1983, the purchasers filed their
notice of appeal-.
While the appeal was before this Court, the parties
signed and filed a stipulation in District Court that claimed
to withdraw the appeal and attempted to give the District
Court jurisdiction to decide the attorney fees issue. A
motion to dismiss the appeal was not filed before this Court
and this Court did not enter an order dismissing the appeal.
Therefore, this Court has always had jurisdiction. The
District Court did not have jurisdiction to rule further on
the substantive issues.
Nonetheless, the District Court, on the basis of the
parties ' stipulation withdrawing the appeal and request that
the District Court decide the attorney fees question, entered
an order on February 22, 1984, deciding the attorney fees
question in favor of the seller. The purchasers then filed a
second notice of appeal, this time apparently attempting to
get both issues before this Court. Strangely enough, the
purchasers now contend as one of their issues that the trial
court had no jurisdiction to hear the attorney fees question
because too much time had elapsed after the original judgment
entered on October 19, 1983.
We hold the November 19, 1983 judgment was not final
because the attorney fees question still remained and because
the purchasers, if they desired to appeal before a final
judgment on all issues, were required to get the issue
properly certified based on Rule 54, M.R.Civ.P., and the
rules we set forth in Roy v. Neibeuer (Mont. 1980), 610 P.2d
1187. This was not done. We further hold that the trial
court, once the appeal from the November 19, 1983 judgment
was filed in this Court, had no jurisdiction to proceed on
any remaining substantive issues unless and until there was
an order from this Court dismissing the appeal. This Court
never did dismiss the appeal and was never requested to
dismiss the appeal. The parties could not, by their own
action, affree that the appeal be dismissed and that the
District Court again have jurisdiction. Jurisdiction of the
District Court required an order from this Court again
investing jurisdiction in the District Court. This was never
done.
Unfortunately, much time, effort and expense could have
been avoided if the parties heeded the rules of civil
procedure governing appellate jurisdiction. The only appeal
before us is the November 19, 1983 judgment, a non-certified
partial judgment. We therefore remand to the District Court
for further proceedings consistent with this opinion. The
a.ppea1 is dismissed without prejudice.
We Concur:
3~4d\.Ca/,
Chief Justic&