Summary
In Stensvad we held that only those orders enumerated in Rule 1, M.R.App.Civ.P. were final and appealable and that an appeal from an order vacating a summary judgment therefore was not permitted because not mentioned in the Rule.
Summary of this case from Shields v. Pirkle Refrigerated Freight Lines, Inc.Opinion
No. 12874.
Submitted September 29, 1975.
Decided October 14, 1975. Rehearing Denied November 7, 1975.
Appeal from District Court of Musselshell County. Fourteenth Judicial District. Hon. R.D. McPhillips, Judge presiding.
Towe, Neely Ball, Billings, Gerald J. Neely argued and Thomas Towe appeared, Billings, for defendant and appellant.
Moses, Tolliver, Kampfe Wright, Billings, Kenneth D. Tolliver argued, Billings, for plaintiffs and respondents.
This is an appeal from the district court, Musselshell County. Respondents filed suit against appellant alleging a breach of contract to finance their feed lot and related operations, thereby causing the failure of said operations. On December 12, 1973, the district court entered a summary judgment against the respondents on all issues and in favor of appellant. Respondents moved to reconsider. After a hearing, on May 13, 1974, the summary judgment was ordered vacated and the cause set for trial. Appellant moved the district court to reconsider the vacation of the summary judgment, which motion was denied on September 16, 1974.
Appellant appeals from the order of May 13, 1974, vacating the summary judgment.
The controlling issue before this Court is whether the order vacating the summary judgment is an order from which an appeal may be taken.
Rule 1, M.R.App.Civ.P., subsections (b) and (c), set forth from what orders an aggrieved party may appeal. The order from which appellant wishes to appeal is not one of the enumerated orders contained in Rule 1.
The district court order is interlocutory in nature, that is, it is not final. The order vacates the summary judgment and sets the cause for trial. The rights of the parties have not been adjudicated, and will not be until such trial.
The general rule on the necessity of a final judgment prior to an appeal is set forth in 4 C.J.S. Appeal and Error § 153, at page 511:
"An appeal or writ of error can be entertained only where a final judgment, order, or decree or an appealable interlocutory one, showing intrinsically, and not inferentially, an adjudication of the parties' rights, has actually been rendered or made."
Montana follows this rule. The decision by this Court in Schultz v. Adams, 161 Mont. 463, 507 P.2d 530, clearly states the rule that a final judgment is necessary before an appeal may be taken. The Schultz case extensively sets forth the authority for the rule as applied in Montana.
For the foregoing reason we find the order vacating the summary judgment is not an appealable order. This cause is remanded to the district court for trial as ordered.
MR. JUSTICES CASTLES, JOHN C. HARRISON, HASWELL and DALY concur.