McVay v. McVay

• Decision Date: 07 May 1954
• Docket Number: No. 9385,9385
• Citation: 11 St.Rep. 204,270 P.2d 393,128 Mont. 31
• Parties: McVAY v. McVAY.
• Court: Montana Supreme Court

Page 393

270 P.2d 393

128 Mont. 31

McVAY v. McVAY.

No. 9385.

Supreme Court of Montana.

May 7, 1954.

Leon L. Bulen, Gille V. Wooten and Dalton T. Pierson, Missoula, for appellant.

John F. Patterson, Jr., and John Forsythe, Missoula, for respondent.

ADAIR, Chief Justice.

On Motion to Dismiss Appeal. On October 14, 1947, Daniel M. McVay, as plaintiff, commenced suit seeking a divorce from his wife, Katherine McVay, and also the custody of the two children of the marriage, both then infant of preschool age.

By decree entered in the district court on January 7, 1949, the defendant wife was granted an absolute divorce and provision was made for the custody of the children.

Each party to the suit desired a divorce and neither took an appeal from the decree so that, after the lapse of six months after its entry, the decree became, was and is final insofar as it determines the marital status of the parties.

R.C.M.1947, Sec. 21-138, provides: 'In an action for divorce the court or judge may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.'

Subsequent to the making and entering of the decree of divorce of January 7, 1949, there have been various attempts to modify the trial court's sundry orders directing the custody, care and education of the children of the marriage. These attempts at modification were made under the authority of Sec. 21-138, supra. See State ex rel. McVay v. District Court, Mont., 251 P.2d 840.

On April 8, 1953, the plaintiff father filed in the trial court a motion supported by affidavit, seeking modification of that court's former order of April 10, 1951, giving directions for the custody, care and education of the children.

On May 8, 1953, the defendant mother filed a motion supported by affidavit, seeking modification of the trial court's decree and order so as to authorize her to take the children outside of the State of Montana should she so desire.

On May 21 and 22, 1953, a hearing was held on the motions at which hearing numerous witnesses testified and many depositions were introduced. Counsel for each party then served and filed proposed findings of fact and conclusions of law and the motions were then submitted for determination.

On June 5, 1953, the trial court made and entered a special order after final judgment, R.C.M.1947, Sec. 21-138, denying the plaintiff father's motion and granting that of the defendant mother.

The above is an appealable order, R.C.M.1947, Sec. 93-8003, subd. 2, but to be effective the appeal must be taken within sixty days after the order is made or entered, or filed with the clerk. R.C.M.1947, Sec. 93-8004, subd. 3.

No appeal was taken from the aforesaid order within the time limit prescribed by the statute. Sec. 93-8004, subd. 3, supra.

On October 16, 1953, being 133 days after the trial court's order of June 5, 1953, was made and entered, plaintiff's counsel served and filed the following novel notice, on a printed form, which, except for the formal parts, including the title of the cause, the signatures and the acknowledgment of service, reads:

'Notice of Appeal

'You will please take notice that the Plaintiff in the above entitled action hereby appeals to the Supreme Court of the State of Montana, from the final judgment and Decree of the Honorable Albert Besancon, Judge of the Fourth Judicial District of the State of Montana in Civil Case No. 16959, therein entered, in the said District Court, on the 5th day of June, 1953, in favor of the Defendant in said action, and against said plaintiff and from the whole thereof, and also and in addition, Notice is further given that the Plaintiff intends to petition the Honorable Supreme Court for a Writ of Review of the proceedings before the Honorable Albert Besancon and the final judgment of decree given and made in the above entitled proceeding by the Honorable Albert Besancon. And further notice is given that the Plaintiff intends to petition the Honorable Supreme Court for such additional relief as the Honorable Supreme Court shall deem just and equitable in the premises, including supervisory control.

'Dated this 16th day of October, 1953.'

On February 3, 1954, counsel for the plaintiff father caused to be filed in the office of the clerk of this court a transcript on appeal comprising two volumes.

On February 15, 1954, counsel for the defendant mother served and, on February 16, 1954, filed in this court a written motion to dismiss the appeal for the reason that it was not taken within the time limit prescribed by law. R.C.M.1947, Sec. 93-8004.

It is elementary that statutes limiting the time for appeal are mandatory and jurisdictional. They must be strictly complied with. They must be followed to give the appellate court jurisdiction to entertain the appeal and the right of appeal is lost by the lapse of time. State ex rel. Reid v. District Court, Mont., 255 P.2d 693.

By appellant's delay he lost his appeal leaving this court without jurisdiction to entertain it.

The final judgment and decree dissolving the marriage and awarding an absolute divorce was made and entered on January 7, 1949, and not 'on the 5th day of June, 1953' as is stated in plaintiff's notice of appeal above quoted.

In State ex rel. McVay v. District Court, supra, Mont., 251 P.2d 840, 845, this court, in speaking of the above decree, said: 'No appeal was taken from the decree entered January 7, 1949, and, the time allowed by law therefor having long since expired, the decree became and is final so far as concerns the dissolution of the marriage.'

It is not the judgment and decree dissolving the marriage and granting the divorce entered January 7, 1949, from which the plaintiff has attempted to take an appeal but it is from the special order, made and filed on June 5, 1953, to the effect: 'That the defendant's motion that she be permitted to keep the children with her at Tacoma, Washington, is granted, for she, the defendant, is awarded the complete care and custody...