Berry v. Seman

No. 90-060
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
NANCY L. BERRY, Conservator of
the Estate of Esther Seman,
a Protected Person,
Plaintiff and Respondent,
CAROLL SEMAN
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carol1 Seman, pro se, Great Falls, Montana
For Respondent:
Kevin C. Meek, Alexander, Baucus & Linnell,
P.C., Great Falls, Montana
Submitted on briefs: August 16, 1990
Decided: November 27, 1990
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant, Caroll Seman, appeals from the dismissal of his
appeal from the Justice Court, Great Falls Township, Cascade
County, to the Eighth Judicial ~istrictCourt, Cascade County. We
affirm.
The dispositive issue is whether Seman properly perfected an
appeal from the Justice Court to the District Court.
On September 14, 1989, respondent, Nancy L. Berry, conservator
of the estate of Esther Seman, filed a complaint against appellant,
Caroll Seman, in the Cascade County Justice Court. The complaint
sought damages for money owing on a rental agreement and the
removal of Seman from the subject premises. The Justice Court
entered judgment against Seman on November 2, 1989, awarding Berry
damages in the amount of $1,400 together with attorney's fees of
$200 and costs of $31.50. The court also granted Berry immediate
possession of the property.
On the same day, Seman filed a notice of appeal to the
District Court. Approximately 25 days later, on November 27, 1989,
he filed a document entitled Posting of Property Bond. The
property bond consisted of a Montana State Beer and Wine License.
On November 30, 1989, Berry filed an objection to the property
bond along with an affidavit of her attorney, which contested the
ownership of the beer and wine license. After a hearing on the
matter on December 12, 1989, the District Court ruled that the
property bond was not an acceptable undertaking.
On December 20, 1989, Seman filed another document entitled
2
8 I
Posting of Property Bond. In this property bond, Seman pledged a
1959 mobile home and a 1982 Pontiac Bonneville as an undertaking.
The property bond was signed by Andrew Seman and Sis Seman, the
purported owners of the property.
Berry filed an objection to the second property bond on
December 28, 1989, and, on January 3, 1990, a motion to dismiss
for failure to file a proper undertaking on appeal. A hearing was
held on the two motions, at the close of which the District Court
granted the motion to dismiss. Seman appeals from this ruling.
A district court obtains jurisdiction over an appeal from
justice court once notice of appeal has been filed and served on
the parties, the justice court record has been transmitted to the
district court and an undertaking that substantially complies with
statutory requirements has been filed. State ex rel. Hackshaw v.
District Court, 48 Mont. 477, 479-80, 138 P. 1100, 1100-01 (1914).
If an appellant fails to perfect the appeal by neglecting to file
an undertaking or filing an undertaking that is totally defective,
the district court does not obtain jurisdiction over the action and
Ittheappeal is a mere nullity.I1 State ex. re1 Gregory v. District
Court, 86 Mont. 396, 398, 284 P. 537, 537 (1930).
The statute delineating the requirements of an undertaking on
appeal from justice court to district court provides in pertinent
part:
(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. The undertaking
must be conditioned, when the action is for the recovery
of money, that the appellant will pay the amount of the
judgment appealed from and all costs if the appeal be
withdrawn or dismissed or the amount of any judgment and
all costs that may be recovered against him in the action
in the district court.
(3) When the judgment appealed from directs the delivery
of possession of real property, the execution of the same
cannot be stayed unless a written undertaking be executed
on the part of the appellant, with two or more sureties,
to the effect that:
(a) during the possession of such property by the
appellant, he will not commit or suffer to be committed
any waste thereon; and
(b) if the appeal be dismissed or withdrawn or the
judgment affirmed or judgment be recovered against him
in the action in the district court, he will pay the
value of the use and occupation of the property from the
time of the appeal until the delivery of possession
thereof or he will pay any judgment and costs that may
be recovered against him in said action in the district
court, not exceeding a sum to be fixed by the justice or
judge of the court from which the appeal is to be taken,
which sum must be specified in the undertaking.
section 25-33-201, MCA.
If an adverse party objects to the sufficiency of the
sureties, the appellant must justify the amount of the property
pledged. Section 25-33-203, MCA. The property's total value must
equal twice the amount of the judgment, including costs. Section
,
25-33-201 (1) MCA. However, when calculating the total worth of
the property, the value of the property must be reduced by any
statutory exemption that may apply. section 33-26-102, MCA.
In the present case, the undertaking was defective on its
face. Both pieces of property pledged were subject to statutory
exemptions. The mobile home, which qualified for a homestead
exemption under 5 70-32-101, MCA, was allegedly valued at an
unencumbered worth of $3,400. It was therefore totally exempt
property because a homeowner may claim up to $40,000 of a homestead
as exempt from execution. Section 70-32-104, MCA.
The motor vehicle, valued by the Semans at $3,500, was subject
to an exemption of $1,200. Section 25-13-609(2), MCA. When the
$1,200 exemption was deducted from $3,500, the value of the car
equaled $2,300, which was less than the sum of twice the amount of
judgment, including costs. Because the total amount of the
property pledged in the bond was less than that required by the
statute, the undertaking was deficient.
The undertaking was further flawed by Semants failure to
follow the dictates of 9 25-33-201(1), MCA, which requires the
appellant to promise that he will pay either 1) the amount of the
justice court judgment plus costs if the appeal is withdrawn or
dismissed; or 2) the amount of the district court judgment plus
costs if he does not prevail in that forum. The undertaking was
also defective because Seman neglected to follow the mandates of
5 25-33-201(3), MCA, which requires the appellant to file a written
statement promising that he will not commit waste upon the property
and that he will pay for the value of the use of the property in
the event that the judgment of the justice court is affirmed or the
appeal is dismissed.
Because Seman failed to comply with the statutory requirements
for filing an undertaking, the appeal was not perfected and the
District Court did not obtain jurisdiction over the action.
Accordingly, the District Court did not err in dismissing the
appeal.
Seman raises several additional issues questioning the rulings
and actions of the Justice Court. We need not consider these
issues, however, because this Court will not conduct an appellate
review of actions taken by the justice court when a party has
failed to perfect an appeal in the district court. See State ex
rel. Estes v. Justice Court, 129 Mont. 136, 138, 284 P.2d 249, 250
(1955).
Affirmed.