Opinion
June 16, 1986.
ORDER
The Montana Supreme Court Advisory Commission on the Montana Rules of Civil Procedure and Rules of Appellate Civil Procedure has submitted the following proposals regarding amendments to the Rules of Appellate Civil Procedure to the Montana Supreme Court:
1. Preliminary Draft of Proposed Amendments, dated December 1984. Notice of its contents was given to Montana lawyers and Judges by the Supreme Court.
2. Proposed Amendment, dated July 1985; resulting from comments and suggestions received from bench and bar.
3. Proposed Amendments, dated April 1986.
The Court has examined and discussed the proposed Amendments on several occasions since submission of the same.
IT IS NOW ORDERED:
1. The Proposed Amendments to the Montana Rules of Appellate Civil Procedure, dated April 1986, submitted to this Court by the Montana Supreme Court Advisory Commission on the Montana Rules of Civil Procedure and Rules of Appellate Civil Procedure are hereby approved and adopted, effective on January 19, 1987. A copy of the same is attached hereto, and in accordance with Rule 53 herein adopted, said Rules shall be known as the Montana Rules of Appellate Procedure.
2. The Clerk is directed to give notice hereof by mailing a copy of this order, and a copy of the amended rules, to each District Judge of the State of Montana, to each Clerk of the District Court, to the State Bar of Montana at its office in Helena, Montana, to West Publishing Company, to the Montana State Reporter, and to Diana S. Dowling, Code Commissioner.
We respectfully request that a copy of this order and amended rules be published by the Montana Code Commissioner, and by West Publishing Company in the Pacific Reporter in accordance with its usual custom, and in the State Reporter. We express our thanks and appreciation to the above listed publishers for their aid in making the amended rules available to the profession and the courts.
DATED this 16th day of June, 1986.
s/J.A. Turnage, Chief Justice John Conway Harrison, Justice Frank B. Morrison, Jr., Justice Fred J. Weber, Justice John C. Sheehy, Justice William E. Hunt, Sr., Justice L.C. Gulbrandson, Justice
AMENDMENTS TO THE MONTANA RULES OF APPELLATE CIVIL PROCEDURE
Montana Supreme Court Advisory Commission
on the
Rules of Appellate Civil Procedure
April 1986
Effective Date: January 19, 1987
TABLE OF CONTENTS
Page Amendments to the Montana Rules of Appellate Civil ProcedureI. Applicability of Rules
Rule 1. Scope of rules — from what judgment or order an appeal may be taken ............................................. 5 Rule 2. What the court may review on an appeal from a judgment ........................................................... 6
II. Appeals from Judgments and Orders of District Courts
Rule 4. How taken .................................................... 6 Rule 5. Time for filing notice of appeal ............................. 7 Rule 6. Undertaking for costs on appeal in civil cases ............... 8 Rule 7. Stay of judgment or order pending appeal ..................... 9 Rule 9. The record on appeal ........................................ 10 Rule 10. Transmission of the record ................................. 11 Rule 11. Docketing the appeal — filing of the record .......... 12 Rule 13. Acts of personal representatives or guardians valid when appointment vacated .................................... 12 Rule 14. Ruling against respondent may be reviewed .................. 13 Rule 15. Remedial powers of the supreme court in civil cases ....................................................... 13
IV. Appeals in Forma Pauperis
Rule 18. Applications and manner of proceeding ...................... 13
V. General Provisions
Rule 20. Filing and service ......................................... 14 Rule 21. Computation and extension of time .......................... 14 Rule 22. Motions .................................................... 15 Rule 23. Briefs ..................................................... 16 Rule 25. The appendix to the briefs ................................. 16 Rule 27. Form of briefs and other papers — duplication .............. 17 Rule 30. Entry and notice of orders ................................. 18 Rule 32. Damages for appeal without merit ........................... 18 Rule 33. Costs in civil cases ....................................... 19 Rule 35. Notice and copy of decision — remittitur — mandate from United States supreme court .......................... 19 Rule 36. Voluntary dismissal ........................................ 20 Rule 37. Substitution of parties in civil cases ..................... 20 Rule 39. Calendar — withdrawal of records ..................... 20 Rule 44. Certification of questions of law .......................... 21 Rule 51. Statutes and rules amended ................................. 22 Rule 52. Applicability in general ................................... 23 Rule 53. Title — effective date — statutes superseded ......... 23
Table D ............................................................... 24
MONTANA SUPREME COURT ADVISORY COMMISSION ON THE RULES OF APPELLATE CIVIL PROCEDURE W.H. Bellingham, Chairman I. James Heckathorn, Secretary Thomas F. Joyce Honorable Henry Loble Robert D. Morrison James H. Goetz, Vice Chairman Honorable L.C. Gulbrandson Robert S. Keller Joseph R. Marra Terry Trieweiler AMENDMENTS TO THE MONTANA RULES OF APPELLATE CIVIL PROCEDURE RULES OF APPELLATEThe procedure covering appeals in criminal cases to the Supreme Court of Montana from Montana district courts has heretofore been found in various statutes. It was decided that for convenience the rules governing procedure for appellate practice should be equally applicable to civil and criminal cases, the same as found in the Federal Rules of Appellate Procedure. Many of the proposed amendments are minor, designed to make them applicable to criminal cases as well as civil. In such cases, no further advisory commission notes appear necessary.
I. Applicability of Rules
Rule 1. Scope of rules — from what judgment or order an appeal may be taken.
(a) These rules govern procedure in appeals in civil and criminal cases to the supreme court of Montana from Montana district courts and original proceedings in the supreme court of Montana. The party applying for original relief is known as the petitioner and the adverse party as the defendant. The party appealing is known as the appellant, and the adverse party as the respondent. (b) In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:
(a) (1) From a final judgment entered in an action or special proceeding * * *.
(b) (2) From an order granting a new trial; or refusing to permit an action to be maintained * * *.
(c) (3) From a judgment or order granting or refusing to grant, revoking or refusing * * *.
(c) All questions raised on an order overruling a motion for a new trial or on an order * * *.
(d) Appeals may be taken in criminal cases as provided in sections 46-20-103 and 46-20-104, Montana Code Annotated.
Rule 2. What the court may review on an appeal from a judgment.
(a) Upon appeal from a judgment in a civil case, the court may review the verdict or decision * * *.
(b) The scope of review in criminal cases is governed by sections 46-20-701 and 46-20-702, Montana Code Annotated.
II. Appeals from Judgments and Orders of District Courts
Rule 4. How taken.
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(b) Joint or consolidated appeals. If two or more persons are entitled to appeal from a judgment or order of the a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant.Appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.
(c) Content of the notice of appeal. The notice of appeal shall specify the party or parties taking the appeal; and shall designate the judgment, or order or part thereof appealed from. Form 1 in the the Appendix of Forms is a suggested form of notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal.
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ADVISORY COMMISSION NOTE
The amendments have been adopted in part from Rule 3 of the Federal Rules of Appellate Procedure.
Rule 5. Time for filing notice of appeal.
Delete existing Rule 5 in its entirety and substitute therefor the following:
(a) Appeals in civil cases. (1) In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment; but if the State of Montana, or any political subdivision thereof, or an officer or agency thereof is a party the notice of appeal shall be filed within 60 days from the entry of the judgment or order or 60 days from the service of notice of the entry of judgment. If a notice of appeal is mistakenly filed in the supreme court, the clerk of the supreme court shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted. (2) Except as provided in subsection (a) (4) of this Rule 5, a notice of appeal filed after the announcement of a decision or order but prior to the time that the appeal period begins to run under subsection (a) (1) of this Rule 5, i.e., before the entry of the order or judgment appealed from or the service of the notice of entry of judgment as the case may be, shall be treated as filed after such entry and on the day thereof. (3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 5(a), whichever period last expires. (4) If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion, or if applicable, from the time such motion is deemed denied at the expiration of the 45 day period established by Rule 59(d), Montana Rules of Civil Procedure. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above, or if applicable, from the date of the expiration of the 45 day period established in Rule 59(d), Montana Rules of Civil Procedure. No additional fees shall be required for such filing. (5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 5(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. (b) Appeals in criminal cases. In criminal cases an appeal from a judgment must be taken within 60 days. An appeal from an order or judgment made appealable by Section 46-20-103, Montana Code Annotated must be taken within 14 days.
ADVISORY COMMISSION NOTE
Extensive amendments of the rule have been made, adopting in some cases language similar to Rule 4 of the Federal Rules of Appellate Procedure. Significant changes have been made by the adoption of subsections (2), (4) and (5).
Rule 6. Undertaking for costs on appeal in civil cases.
(a) The district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to insure payment of costs on appeal in a civil case. The provisions of Rule 8(a) apply to a surety upon a bond given pursuant to this rule. [Form of undertaking time for filing.] Within 10 days after service vice of notice of appeal an undertaking for costs on appeal shall be filed in the district court, or a deposit of the money in the amount thereof be made with the clerk of the district court to abide the event of the appeal, or the undertaking be waived by the adverse party in writing. The undertaking must be executed on the part of the appellant by at least 2 sureties, or by a corporate surety as may be authorized by law, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on the dismissal thereof, not exceeding $500. If the undertaking on appeal is not filed within the time specified, or if the undertaking filed is found insufficient, and if the action is not yet docketed with the supreme court, an undertaking may be filed at such time before the action is so docketed as may be fixed by the district court. After the action is so docketed, application for leave to file an undertaking may be made only in the supreme court. The undertaking for costs herein provided may be combined in a single document with a supersedeas bond under Rule 7.
(b) No undertaking for costs is required in appeals in criminal cases.
ADVISORY COMMISSION NOTE
The amendment makes the filing of a bond or providing other security discretionary with the judge, the same as provided in Rule 7 of the Federal Rules of Appellate Procedure, rather than mandatory as provided heretofore.
Rule 7. Stay of judgment or order pending appeal.
(a) [Stay upon entry of judgment — undertaking]. Upon entry of a judgment or order in a civil case a party may apply to the district court on notice or ex parte for a stay of the execution of the judgment or order. The court in its discretion may grant said stay for such period of time and under such conditions as the court deems proper, including restraining the party from disposing of, encumbering, or concealing his property. However, a district court's stay of execution, granted pursuant to this section, shall not be effective for more than 30 days following the district court's disposition of motions made pursuant to Rules 50(b), 52(b), 59 or 60(b) of the Montana Rules of Civil Procedure. (b) Upon service of notice of appeal, if the court has made no such order or if the appellant desires a stay of execution, for a longer period than ordered, he may must, unless the requirement is waived by the opposing party, present to the district court and secure its approval of a supersedeas bond which shall have such surety or sureties as are required for an undertaking for costs on appeal prescribed by Rule 6(a). two sureties or a corporate surety as may be authorized by law. The bond shall be conditioned for the satisfaction of the judgment or order * * *.
(b) (c) [Sale of perishable property]. * * *
(c) (d) [Cases in which stay of proceedings not allowed]. * * *
(e) Stays in criminal cases are governed by sections 46-20-204 and 46-20-205, Montana Code Annotated.
ADVISORY COMMISSION NOTE
The amendments limit the stay of execution to a 30 day period in certain cases and otherwise clarifies the rule.
Rule 9. The record on appeal.
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(b) The transcript of proceedings — duty of appellant to order — notice to respondent if partial transcript is ordered — costs of producing. Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts * * *.
Except as provided in subsection (c) of this rule, the The cost of producing the transcript shall be paid * * *.
The reporter shall certify the correctness of the transcript.
(c) Transcript of proceedings in criminal cases — defendants without financial means — petition in supreme court. (1) Upon imposition of any sentence in a criminal case, a defendant may file in the trial court a petition requesting that he be furnished with a transcript of the proceedings at his trial. The petition shall be verified by the petitioner and shall state facts showing that he is at the time of filing the petition without financial means to pay for the transcript. If the trial judge who imposed sentence or in his absence any judge of the court finds that the defendant is without financial means with which to obtain the transcript of the proceedings at his trial, he shall order the official court reporter to transcribe an original and copy of his notes of the proceedings at the trial. The original of the report of proceedings shall be filed with the clerk of the trial court, and the copy shall be delivered to the defendant without charge. (2) If the petition provided for in subsection (1) is denied by the trial court, a petition so to proceed may be filed in the supreme court within 30 days after entry of the denial. The petition shall be accompanied by a copy of the verification filed in the trial court and a copy of the statement of reasons for denial given by the trial court. (c) (d) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings * * *.
(d) (e) Agreed statement as the record on appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign * * *.
(e) (f) Correction or modification of the record. If any difference arises as to whether the record * * *.
(f) Findings of fact and conclusions of law. In all non jury cases where judgment is rendered on the basis of findings of fact and conclusions of law such findings and conclusions by the district court should be incorporated in the appendix to appellant's brief, along with the district court's opinion, if any.
ADVISORY COMMISSION NOTE
Subdivision 9(c). The amendment authorizes transcripts to be furnished to defendants without financial means and provides for procedure in the supreme court in the case of denial by the trial court.
Subdivision 9(f). This section as it previously appeared in the rules has been deleted because the inclusion of findings of fact and conclusions of law in a brief or appendix is now covered by Rules 23 and 25.
Rule 10. Transmission of the record.
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(c) Extension of time for transmission of the record — reduction of time. The district court may extend the time for transmitting the record. The request for extension must be made within the time originally prescribed or within an extension previously granted, and the district court shall not extend the time to a day more than 90 days from the date of filing of the first notice of appeal. If the district court is without authority to grant the relief sought or has denied a request therefor, the supreme court may on motion extend the time for transmitting the record or may permit the record to be transmitted and filed after the expiration of the time allowed or fixed. A motion for an extension of time for transmitting the record made in either court shall show that the inability of the appellant to cause timely transmission of the record is due to causes beyond his control or to circumstances which may be deemed excusable neglect. If a request for an extension of time for transmitting the record has been previously denied, the motion shall set forth the denial and shall state the reasons therefor, if any were given. Such a motion shall be served upon all other parties to the appeal or review or upon their counsel if represented by such and also upon the district court judge who presided. The motion shall include whether or not previous extensions of time have been granted and if so, the total amount of time extended. If a request has previously been denied, the motion shall set forth the denial and state the reasons therefor, if any were given.
The district court of the supreme court may require the record to be transmitted and the appeal to be docketed at any time within the time otherwise fixed or allowed therefor.
ADVISORY COMMISSION NOTE
The amendment is designed to remove uncertainty as to service and to include additional matter to be included in a motion for an extension of time for transmission of the record.
Rule 11. Docketing the appeal — filing of the record.
(a) Docketing the appeal. Within the time allowed or fixed for transmission of the record, the appellant shall pay to the clerk of the supreme court the fee for filing the record on appeal fixed by Sections 3-2-403 and 3-2-404 of the Montana Code Annotated, and the clerk shall thereupon enter the appeal upon the docket. If In criminal cases and other cases in which an appellant is authorized to prosecute the appeal without prepayment of fees, the clerk shall enter the appeal upon the docket at or before the time of filing the record. An appeal shall be docketed under the title given to the action in the district court with such addition as is necessary to indicate the identity of the appellant.
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Rule 13. Acts of executors, administrators personal representatives or guardians valid when appointment vacated.
When the judgment or order appointing an executor, or administrator, a personal representative or guardian is reversed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate performed by such executor, or administrator, personal representative or guardian, if he have has qualified, are as valid as if such judgment or order had been affirmed.
ADVISORY COMMISSION NOTE
The amendment conforms the rule to the terminology of the Uniform Probate Code.
Rule 14. Ruling against respondent may be reviewed.
Whenever the record on appeal in a civil case shall contain any order, ruling, or proceeding of the trial court against the respondent, affecting his substantial rights on the appeal of said cause, together with any required objection or exception of such respondent, the supreme court on such appeal shall consider such orders, rulings, or proceedings, and the objections and exceptions thereto, and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown upon the record. And no civil cause shall be reversed upon appeal by reason of any error committed by the trial court against the appellant, where the record shows that the same result would have been attained had such trial court not committed an error or errors against the respondent.
ADVISORY COMMISSION NOTE
The foregoing rule does not obviate the necessity of filing appeals. See Johnson v. Tindall, (1981) 195 Mont. 165, 635 P.2d 266, and Converse v. Converse, (1982) 198 Mont. 227, 645 P.2d 413.
Rule 15. Remedial powers of the supreme court in civil cases.
In a civil case when When the judgment or order is reversed or modified, the supreme court * * *.
IV. Appeals in Forma Pauperis
Rule 18. Applications and manner of proceeding.
(a) Application to district court. A party in a civil case who desires to proceed on appeal * * *.
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V. General Provisions
Rule 20. Filing and service.
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(b) Service of all papers required. Copies of all papers, including any transcript, filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by the party or person acting for him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel. In criminal cases appealed by the defendant all transcripts, briefs, motions, and other papers shall be served on both the county attorney and the attorney general.
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(e) Number of copies to be filed. An original and seven copies of all motions (other than procedural motions), petitions for extraordinary writs or other original proceedings, petitions for rehearing, and the answers or responses thereto, shall be filed with the clerk of the supreme court unless otherwise ordered by the court. The original only of procedural motions shall be filed. The number of copies of transcripts shall be in accordance with Rule 10(a) and the number of copies of briefs shall be in accordance with Rule 26(b).
ADVISORY COMMISSION NOTE
Subdivision 20(e). The amendment is intended to clarify the number of copies of various instruments which should be filed. The absence of such a general provision in the past has led to confusion in many cases. The term "procedural motions" is used to describe motions which do not substantially affect the rights of the parties or the ultimate disposition of the appeal. Examples of procedural motions are motions for extensions of time and motions to enlarge length of briefs.
Rule 21. Computation and extension of time.
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(b) Extension of time. The court for good cause shown may upon motion extend the time prescribed by these rules or by its order for doing any act, and may thereby permit an act to be done after the expiration of such time if the failure to act was excusable under the circumstances; but except the court in a civil case may not extend the time for filing a notice of appeal, except as provided in Rule 5. Within the text of each motion requesting an extension of time submitted to the court for its consideration, counsel shall note that opposing counsel has been contacted concerning the motion and whether opposing counsel objects to the motion. All motions and orders for extension of time shall include a date certain on or before which date the act for which an extension of time is requested must be performed.
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ADVISORY COMMISSION NOTE
The amendment is designed to facilitate the handling of motions for extension of time.
Rule 22. Motions.
Unless another form is prescribed by these rules, an application for an order or other relief shall be made by filing a motion in writing for such order or relief. The motion shall state with particularity the grounds therefor and shall set forth the order or relief sought. Counsel shall also note therein that opposing counsel has been contacted concerning the motion and whether opposing counsel objects to the motion. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Motions for procedural orders may be determined ex parte. The supreme court may authorize disposition of motions for procedural orders by a single judge. If a motion seeks dismissal of the appeal or other substantial relief, any party may file an answer in opposition within 7 days after service of the motion, or within such time as the court may direct. Motions, supporting papers and any response thereto may be typewritten.
At the time of filing a procedural motion counsel shall present a proposed order, together with sufficient copies for service upon all counsel of records. as well as stamped envelopes addressed to all counsel of record.
ADVISORY COMMISSION NOTE
The amendments are designed to insure that opposing counsel have been contacted to limit the necessity of submitting proposed orders to procedural motions only and to place the expenses of mailing orders upon the parties. For the definition of a "procedural motion" see Advisory Commission Note to Rule 20(e).
Rule 23. Briefs.
(a) Brief of the appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
* * *
(6) The judgment, order, findings of fact, conclusions of law, or decision in question, together with the memorandum opinion, if any, in support thereof. If an appendix is filed pursuant to Rule 25, the foregoing may be included therein.
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(g) Length of briefs and costs. Except by permission of the court briefs shall not exceed 50 pages of standard typographic printing or 70 pages of printing by any other process of duplicating or copying, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc. For purposes of assessing costs in civil cases under Montana Code Annotated, Section 25-10-104, Montana Code Annotated, reasonable costs shall be limited as follows: For appellant's brief 50 pages; for respondent's brief 40 pages; for reply brief 15 pages. In addition, reasonable costs for briefs shall be limited to $250 for appellant's brief and $200 for respondent's brief.
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ADVISORY COMMISSION NOTE
Subdivision 23(a)(6). Heretofore, parties have often failed to include the designated documents, which are often crucial to the decision, in their briefs or appendix.
Subdivision 23(g). The amendment is intended to bring the rule up-to-date with current reproduction processes.
Rule 25. The appendix to the briefs.
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(b) Contents of the appendix. Unless otherwise ordered by the supreme court, an appendix shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant pleading and relevantportions of the charge, given or refused jury instruction, finding and opinion; (3) the judgment, order, findings of fact, conclusions of law, or decision in question, together with the memorandum opinion, if any, in support thereof; and (4) such other parts of the record as any party deems it essential for the judges of the court to read in order to decide the issues presented. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference or examination and shall not engage in unnecessary designation.
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ADVISORY COMMISSION NOTE
The amendment adds essential materials to the appendix. Heretofore Rule 9(f) covered findings and conclusions but 9(f) has been deleted in favor of inclusion of findings, conclusions and other materials in a more logical place.
Delete existing Rule 27 in its entirety and substitute the following:
Rule 27. Form of briefs and other papers — duplication.
(a) Form of briefs, appendices, petitions, motions and other papers. Briefs, appendices, petitions, motions and other papers shall be produced by any standard printing process, by typewriter or by an equivalent process capable of producing a clear black image on white paper. All print must appear in at least 11 point type on opaque, unglazed paper. All of the foregoing papers shall have pages not exceeding 8 1/2 by 11 inches with margins on the right side and on the top and bottom not less than 1 inch wide and on the left side not less than 1 1/2 inches wide, provided, however, that papers from the proceeding below (pleadings, findings of fact and conclusions of law, judgments, exhibits and other like papers) may be (1) reproduced in their original form, size and print even though the papers exceed the foregoing size limitations, or (2) reproduced in their original form, but in a reduced size and print on pages not exceeding 8 1/2 by 11 inches even though the print thereon is less than 11 point type, provided that the print is legible. Papers produced by typewriter or an equivalent process shall be double spaced except that footnotes and quoted and indented material may be single spaced. Pages shall be bound or attached on the left margin and numbered. Petitions, motions and other like papers filed with the clerk of the supreme court shall contain numbered lines. (b) Duplication. All requirements of duplication may be satisfied by the use of any photocopy method capable of producing a clear black image on white paper, but not including ordinary carbon copy, provided, that in each instance the duplication shall conform to the requirements of subdivision (a) of this rule as to paper, size, form and pagination. All papers and attachments thereto must be legible. (c) First page and cover. The cover of the brief of the appellant shall be blue; that of the respondent, red; that of an intervenor or amicus curiae, green; that of any reply brief, gray. The cover of the appendix, if separately printed, shall be white. Where a transparent cover is utilized, the underlying sheet must nevertheless conform to these color requirements. On the first page and cover of all papers must be stated the title of this court, the title of the case as in the court below, adding to the words "Plaintiff" and "Defendant," the words "Appellant" and "Respondent" as the case may require, the names of counsel for appellant and respondent, the title of the papers, as "Appellant's Brief," "Appendix to Appellant's Brief," etc., and the venue from which the appeal is taken.
ADVISORY COMMISSION NOTE
Rule 27 has been completely revamped in order to bring it up-to-date with current reproduction processes. The requirements of subdivision (c) have been adopted from Rule 32(a) of the Federal Rules of Appellate Procedure.
Papers and attachments thereto are often filed which are illegible, sometimes caused by excessive reduction in size. Illegible papers are subject to being returned and may be the subject of sanctions imposed by the Montana Supreme Court.
Rule 30. Entry and notice of orders and judgments .
(a) Entry and notice. The notation of a judgment or an order, in the docket constitutes entry thereof. Upon entry of a judgment or an order, the clerk shall promptly mail to all parties a copy of the judgment or order, and notice of the date of entry thereof.
ADVISORY COMMISSION NOTE
The deletions conform the style of the rule with the other rules and omit the word "judgment" because of its inapplicability to the supreme court.
Rule 32. Damages for appeal without merit.
If the supreme court is satisfied from the record and the presentation of the appeal, in a civil case that the same was taken without substantial or reasonable grounds, but apparently for purposes of delay only, such damages may be assessed on determination thereof as under the circumstances are deemed proper.
ADVISORY COMMISSION NOTE
The deletion removes an ambiguity which has previously caused problems.
Rule 33. Costs in civil cases.
(a) Costs on appeal. Costs on appeal in civil cases will be taxed as provided by Montana Code Annotated, section 25-10-104,Montana Code Annotated, and if not otherwise provided by the court in its decision, will automatically be awarded to the successful party against the other party. All costs on appeal shall be claimed as provided by Section 25-10-503, Montana Code Annotated.
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(f) Notation by clerk. The clerk of the supreme court shall, in all civil cases, include in the order of judgment of affirmance, * * *.
Rule 35. Notice and copy of decision — remittitur — mandate from United States Supreme court.
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(c) Mandate from United States supreme court — procedure thereon. Upon receipt by the clerk of the supreme court of Montana of a mandate from the supreme court of the United States in any case at law or in equity theretofore taken from the supreme court of Montana to the supreme court of the United States, it shall be the duty of said clerk forthwith to issue under his hand and the seal of the supreme court of Montana a remittitur to the district court by which the judgment was rendered, commanding such court to take such action in the premises as by the mandate shall be proper, and said remittitur shall also contain therein a recital in haec verba of the said mandate, . and In civil cases all the costs subsequent to the appeal from said district court shall be taxed in such remittitur.
Rule 36. Voluntary dismissal.
If the parties to an appeal or other proceeding shall sign and file with the clerk an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, and shall give to each party a copy of the agreement filed; but no mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as to costs as may be agreed upon by the parties or fixed by the court. If an appeal has not been docketed the appeal may be dismissed by the court from which the appeal was taken upon the filing in that court of a stipulation for dismissal signed by all parties, or upon motion and notice by the appellant. The clerk of the district court shall mail a copy of the order of dismissal to the clerk of the supreme court.
ADVISORY COMMISSION NOTE
In many cases previously the clerk of the supreme court has not been notified of dismissals by the district courts thereby enabling him to clear the supreme court docket.
Rule 37. Substitution of parties in civil cases.
(a) Death of a party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court in a civil case, the personal representative of the deceased party * * *.
* * *
Rule 39. Calendar — withdrawal of records.
(a) Placing causes upon calendar. All causes shall be classified as provided in the Montana Supreme Court 1982 Internal Operating Rules as the same may be amended by the court. Thirty days after the appellant's brief has been filed, the cause shall be placed on the calendar as ready for oral argument.
(b) Setting causes for argument. As often as found convenient, causes Causes on the calendar upon which oral argument is allowed will be set for argument by the court in the chronological order in which they have been placed on the calendar, except for such causes as are determined entitled to precedence or as otherwise ordered by the court. Oral arguments will not be heard during the months of July and August.
(c) Advancement of causes. In calendaring appeals of civil cases Appeals from orders dissolving, refusing to dissolve, granting or refusing to grant writs of injunction, appeals from orders dissolving or refusing to dissolve attachments, appeals from orders appointing or refusing to appoint receivers, appeals from orders or judgments holding appellant in custody, and workmen's compensation appeals, are entitled to precedence and will, upon motion of either party, be advanced on the calendar.In calendaring appeals of criminal cases, causes against defendants held in custody will be set for argument by the court in advance of causes against defendants on bail unless for good cause the court otherwise orders.
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ADVISORY COMMISSION NOTE
The amendments bring the provisions up-to-date and differentiate between civil and criminal appeals.
Rule 44. Certification of questions of law.
(a) Power to answer. Whenever in an action pending in a United States court it shall appear that there is a controlling question of Montana law as to which there is a substantial ground for difference of opinion, a judge of the United States court wherein the action is pending may certify that the question upon which adjudication is sought is controlling in the federal litigation and the adjudication by the supreme court of Montana will materially advance ultimate termination of the federal litigation. Rendition of an answer by the supreme court of Montana to any such question of law certified to it is discretionary with the supreme court of Montana, and it may refuse to render an answer if it appears that there is another ground for determination of the case pending in the United States court, or if the question for adjudication is not clearly defined, or if the question is not adequately briefed or argued. (b) Method of invoking. This rule may be invoked by a certification order of a United States court filed with the supreme court of Montana. (c) Contents of certification order. A certification order shall set forth (1) the questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. (d) Preparation of certification order. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the supreme court by the clerk of the certifying court under its official seal. The supreme court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the supreme court, the record or portion thereof may be necessary in answering the questions. (e) Costs of certification. Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification. (f) If any party to the action believes that the supreme court should refuse to answer the certification order, such party may file a motion to such effect within ten days after such party receives notice that the certification order has been filed with the supreme court. Thereafter Rule 22 will govern further procedure as to such motion. (g) Briefs and arguments. Proceedings in the supreme court shall be those provided in the foregoing rules governing briefs and arguments. (h) Opinion. The written opinion of the supreme court stating the law governing the questions certified shall be sent by the clerk under the seal of the supreme court to the certifying court and to the parties.
ADVISORY COMMISSION NOTE
The rule is entirely new and is based upon Rule I of the Rules of the Supreme Court of Montana dated January 31, 1967, which heretofore has covered certification of questions of law in Montana, and upon the Uniform Certification of Questions of Law Rule promulgated by the National Conference of Commissioners on Uniform State Laws. For comments as to subdivisions (c), (d), (e), (g) and (h) see the Uniform Rule. (Uniform Certification of Questions of Law Act; 12 Uniform Laws Annotated, p. 52.)
Rule 41 51. Statutes and rules amended.
(No change in body of rule.)
ADVISORY COMMISSION NOTE
Because of the addition of substantive Rule 44 in the amendments, Rule 41 has been renumbered to Rule 51, Rule 42 to Rule 52, and Rule 43 to Rule 53 for editorial convenience and in order to reserve numbers 45 through 50 for future substantive rules.
Rule 42 52. Applicability in general.
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(c) Rules incorporated into statutes. Where any statute heretofore or hereafter enacted, whether or not applicable to a special statutory proceeding or listed in any table appended hereto, provides that any act in a civil proceeding in a district court or in the Montana supreme court shall be done in the manner provided by law or as in a civil an action or as provided by any statute superseded by these rules, such act shall be done in accordance with these rules and the procedure thereon shall conform to these rules, insofar as practicable.
ADVISORY COMMISSION NOTE
See advisory commission note to Rule 51.
Rule 43 53. Title — effective date — statutes superseded.
(a) Title. these rules shall be known as the Montana Rules of Appellate Civil Procedure and may be cited as M.R.App.Civ.P.
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(c) Statutes and rules superseded. Upon the taking effect of these rules all statutes and rules, and parts thereof, in conflict herewith, and the statutes and rules listed in Tables A, B, and C, insofar as they relate to civil proceedings, and D are superseded in respect of practice and procedure on appeals from the district courts to the supreme court and in original proceedings brought in the supreme court.
ADVISORY COMMISSION NOTE
See advisory commission note to Rule 51. Table D has been added. The superseded statutes heretofore covered appeals in criminal cases to the supreme court. TABLE D
The following statutes are superseded by the Montana Rules of Appellate Procedure:
46-20-102 46-20-311 46-20-402 46-20-502 46-20-201 46-20-312 46-20-403 46-20-503 46-20-202 46-20-313 46-20-404 46-20-504 46-20-203 46-20-314 46-20-405 46-20-511 46-20-301 46-20-315 46-20-406 46-20-512 46-20-302 46-20-316 46-20-407 46-20-513 46-20-303 46-20-317 46-20-408 46-20-601 46-20-304 46-20-318 46-20-409 46-20-602 46-20-305 46-20-319 46-20-410 46-20-603 46-20-306 46-20-401 46-20-501 46-20-604 46-20-704