Montana West Bank v. Western Skys Ltd. Co. – 2008 MT 54
Although a case from last year, woe to the lawyer who ignores its holding. Pursuant to M. R. App. P. 4(2)(a), notice of appeal must be filed with the clerk of the supreme court within the time allowed. Counsel for Western Skys et. al. made the mistake of filing their notice of appeal in the district court, where the trial had been held. By the time their error was discovered, the time to file the appeal had expired. Western Skys petitioned for an out of time appeal pursuant to M. R. App. P 4(6).
SCOMONT decided that the present facts did meet the standard of M. R. App. P. 4(6), which reads:
(6) Out-of-time appeal: In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal. An out-of-time appeal must be requested by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed. Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect.
On that basis, the petition was denied and Western Skys was not allowed to appeal. Ouch.
