Weston v. Kuntz , 187 Mont. 453 ( 1980 )

610 P.2d 172 (1980)

Tom WESTON, Plaintiff and Respondent,
v.
Roy KUNTZ, Defendant and Appellant.

No. 14955.

Supreme Court of Montana.

Submitted on Briefs February 27, 1980. Decided May 1, 1980.

Garlington, Lohn & Robinson, Missoula, for defendant and appellant.

Smith, Conner, Van Valkenburg & Larrivee, Missoula, for plaintiff and respondent.

HASWELL, Chief Justice.

Appellant Kuntz appeals from the order and judgment of the Missoula County District Court granting respondent Weston's motion for summary judgment on the question of liability. The District Court reserved judgment as to the amount of damages.

Roy Kuntz operated a garage (Kuntz Auto Repair Service) located just outside of St. Ignatius, Montana and held himself out as an automobile repairman. On January 15, 1978, Weston delivered his 1970 Chevrolet Van, containing tools and equipment to Roy Kuntz to repair. Roy Kuntz was to have redelivered the van to Weston in approximately two days, on or about January 17, 1978. On January 17, 1978, Weston sought to have his van returned from Roy Kuntz and discovered that his van and all the equipment in it had been totally consumed by fire. As a result the plaintiff initiated this action.

Following discovery, Weston filed a motion for summary judgment. After briefs were submitted by the parties, the District Court granted summary judgment on the issue of liability, while reserving judgment as to the amount of damages. Kuntz now appeals.

The controlling issue in this appeal is whether a judgment of liability which reserves judgment as to damages is appealable.

Rule 56(c), M.R.Civ.P. provides, in part:

"... A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

This Court has previously held that such an order granting summary judgment on the issue of liability alone is not appealable. The rationale and authorities behind these holdings are given in Schultz v. Adams (1973), 161 Mont. 463, 507 P.2d 530, and need not be repeated here.

The attempted appeal is dismissed as premature, without prejudice.

DALY, HARRISON, SHEA and SHEEHY, JJ., concur.