Adams v. Crismore , 211 Mont. 245 ( 1984 )

No. 84-98
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
CI-IARLE ADAMS ,
S
Plaintiff and Respondent,
ROBERT M. CRISMORE, JEAN CRISMORE
and R.M. CRISMORE, INC., a Pqont.
corp. ,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of the Lake,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman,
Ralispell, Montana
For Respondent :
Keith C. Rennie, Polson, Montana
Submitted on Briefs: April 26, 1984
Decided: Jxly 10, 1984
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Charles Adams, plaintiff, obtained a default judgment
against Robert M. Crismore, defendant, in the Justice Court
of Polson on September 21, 1983. Defendant appealed the
default judgment to the District Court of the Fourth Judicial
District in Lake County. On December 8, 1983 the District
Court entered a judgment denying defendant's motion to set
aside and dismiss the Justice Court's default judgment.
Defendant appeals.
Plaintiff filed two actions against defendant on August
29, 1983. One complaint filed in the Justice Court of Polson
Township sought damages from defendant for nonpayment of a
debt on a personal loan and for services rendered as an
independent contractor. The second action filed in the
District Court of Lake County claimed damages from defendant
for unpaid wages owed plaintiff. Plaintiff's counsel served
both complaints upon defendant in Kalispell, Flathead County,
Montana.
Defendant filed a special appearance motion to dismiss
alleging lack of personal jurisdiction over defendants by
,Justice Court of Polson Township since defendants resided
outside of Lake County and were improperly served with
process outside of Lake County. At a hearing on September
21, 1983 the Justice of the Peace ruled that proper
jurisdiction of the Justice Court had been invoked, denied
defendant's motion to dismiss for lack of jurisdiction and
subsequently entered a default judgment against defendant.
Defendant filed a notice of appeal to the District Court
along with the requisite undertaking on September 26, 1983.
Plaintiff immediately filed an objection to undertaking
claiming that it was fatally defective and failed to perfect
a proper appeal. Defendant was requested to provide 3 good
and sufficient undertaking within a reasonable time.
Defendant moved the District Court to consolidate the
appeal from the Justice Court with the existing District
Court action. Plaintiff filed an objection to defendant's
motion for consolidation, claiming that the motion was
untimely and that all actions by the District Court should be
postponed until defendant's appeal was properly perfected by
a sufficient undertaking or otherwise dismissed. Defendants
failed to cure the defective undertaking. On October 24,
1983, plaintiff filed a motion to dismiss defendant's appeal
because the fatal insufficiency in the undertaking failed to
invoke the proper jurisdiction of the District Court.
A hearing on November 2, 1983 was held before retired
district judge, the Honorable E. Gardner Brownlee, sitting in
place of the Honorable Douglas G. Harkin. Defendant
contended that since the Justice Court acted without personal
jurisdiction, its judgment was rendered a nullity and subject
to a collateral attack which did not require an undertaking
to be filed. Additionally, defendant requested the District
Court to consider his appeal as a writ of review. At the
hearing, defendant filed and served on plaintiff, without
prior notice, a motion to set aside Justice Court judgment
and dismiss. The court granted plaintiff two weeks to
respond to defendant's motion. On November 18, plaintiff
appeared before Judge Brownlee and argued that the District
Court lacked proper jurisdiction to rule on defendant's
motion to dismiss because defendant's defective undertaking
had not been corrected. The trial court did not require
defendant to file a sufficient undertaking and granted
defendant's motion to dismiss the justice judgment.
November 21, plaintiff filed a rule 60(b) motion
requesting the District Court to set aside its ruling of
November 18, and to consider plaintiff's motion to dismiss
the appeal for lack of district court jurisdiction. Having
resumed jurisdiction over his cases, Judge Harkin presided at
the November 30 hearing where all parties were represented by
counsel. The District Court's order of Decemher 8, modified
its previous order pursuant to Rule 60(b), M.R.Civ.P. and
granted plaintiff's motion to dismiss defendant's appeal due
to lack of jurisdiction since defendant's requisite
undertaking was defective and such insufficiency was not
corrected.
Appellant presents the following issues on appeal:
1. Whether the District Court erred in granting
plaintiff's motion to dismiss defendants' appeal from the
Justice Court.
2. Whether the District Court erred in not acting upon
defendants' motion to consolidate.
The dispositive issue before this Court is whether the
District Court had proper jurisdiction to address the appeal
from the lower court judgment. Jurisdiction of the Justice
Court is not at issue on appeal and not discussed herein.
Appellate procedure to district court from justices'
courts is set out in 25-33-201, MCA, the pertinent part of
which states:
"25-33-201. Undertaking on appeal. (1) An appeal
from a justice's or city court is not effectual for
any purpose unless an undertaking be filed, with
two or more sureties, in a sum equal to twice the
amount of the judgment, including costs, when the
judgment is for the payment of money . . ."
In State ex rel. Gregory v. District Court (1930), 86
Mont. 396, 398, 284 P. 537, this Court held:
"The settled rule is that an undertaking on appeal
in substantial compliance with the sta.tute is made
a prerequisite to clothe the district court with
jurisdiction on an attempted appeal to the district
court, and if such undertaking is not filed, or is
totally defective, the appeal is a mere nullity."
Unless an appeal from a justice's court is effectuated
in accordance with the controlling statute, the district
court has no jurisdiction of the appeal. The subject appeal
was not properly perfected due to deficiencies of the
a.ccompanying requisite undertaking. Although the sum of the
undertaking was sufficient, the singular signature violates
25-33-201, MCA, which clearly requires two or more sureties.
In addition, Empire Construction Company, Inc., which appears
on. the undertaking, is a foreign corporation, not
incorporated under the laws of this State for the purpose of
making, guaranteeing or becoming a surety and thus is not a
valid corporation surety pursuant to 33-26-101(1), MCA.
Moreover, the trial court judge unequivocably recognized that
the appellant's undertaking filed with the notice of appeal
failed to comply with statutory criteria.
Section 25-33-207, MCA provides:
"Defective undertaking. No appeal shall be
dismissed for insufficiency of the undertaking
thereon or for any defect or irregularity therein
if a good and sufficient undertaking be filed in
the district court at or before the hearing of the
motion to dismiss the appeal, which undertaking
must be approved by the district judge."
The record reveals that the defendant had adequate time
to provide a. sufficient and good undertaking prior to or on
the day of the November 2 hearing but failed to cure said
defects.
Due to the defendant ' s defective undertaking his appeal
is unperfected as a matter of law, and fails to properly
invoke the jurisdiction of the District Court. District
Court's judgment granting plaintiff's motion to dismiss
defendant's appeal due to lack of jurisdiction is affirmed.
T h e r e f o r e , t h e s e c o n d i s s u e i S moot.
W e concur: