Preview:

NO. 96-287

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

2

DIME INSURANCE AGENCY, THOMAS D. BERRY, ... .' .i".f
Defendants and Appellants

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Thane P. Jc )hnson, Werner, Epstein & Johnson, Cut Bank, Montana
For Respondents:

Joseph T. Swindlehurst, Huppert & Swindlehurst, Livingston, Montana
Submitted on Briefs:  August 22, 1996  
Decided:  November 7, 1996  
Filed:  

Justice Terry N. Trieweiler delivered the opinion of the Court.

On January 23, 1996, the Gallatin County Justice Court entered
judgment in the amount of $2809 in favor of the plaintiff, Dime
Insurance Agency, against the defendant, ISC Distributors. ISC
filed a notice of appeal to the District Court. However, Dime
Insurance moved to dismiss the appeal because the undertaking on
appeal was not filed within thirty days of the date on which
judgment was rendered in Justice Court. The District Court granted
Dime Insurance's motion. ISC appeals the order of the District
Court which dismissed its appeal. We reverse the order of the
District Court and remand to that court for consideration of the
merits of ISC's appeal.

The issue on appeal is whether the District Court erred when
it dismissed ISC's appeal for failure to file an undertaking within
thirty days of the date on which judgment was rendered in Justice
Court.

FACTUAL BACKGROUND

In 1995, Dime Insurance Agency brought suit against ISC
Distributors in Justice Court in Gallatin County to recover
insurance premiums due for a business insurance policy. Following
a hearing on January 19, 1996, the Justice Court entered a judgment
in favor of Dime Insurance Company in the amount of $2809.

On February 1, 1996, ISC filed a notice of appeal in Justice
Court. Within one week, the Justice Court transmitted its record
to the District Court for the Eighteenth Judicial District in

Gallatin County. On March 7, 1996, ISC deposited an undertaking on appeal in the amount of $2809 with the Clerk of the District Court.
On March 14, 1996, Dime Insurance moved to dismiss ISC's appeal. Dime Insurance maintained that ISC's appeal was not properly perfected because, pursuant to 5 25-33-201, MCA, ISC had not filed an undertaking on appeal within thirty days from the date on which judgment was rendered in Justice Court. On March 29, 1996, the District Court granted Dime Insurance's motion and dismissed ISC's appeal.
DISCUSSION

Did the District Court err when it dismissed ISC's appeal for
failure to file an undertaking within thirty days of the date on
which judgment was rendered in Justice Court?

We review a district court's grant or denial of a motion to dismiss to determine whether the court was correct. Boreen v. Christensen
(1994), 267 Mont. 405, 408, 884 P.2d 761, 762.

A party may appeal from a civil action in justice court at any time within thirty days after the judgment is rendered. Section 25-33-102, MCA. The procedure for appealing a justice court judgment is set forth in

Download f7aeedf1-9f1a-450e-9b6a-b133493d4d1b.pdf

Montana Law