STATE EX REL CADY v THIRTEENTH J
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No. 83-70 I N THE SUPREME COURT OF THE STATE OF MONTANA 1983 STATE OF MONTANA, ex r e l . , GEORGE W. CADY and ROBERTA CADY, husband and w i f e , Petitioners, THE D I S T R I C T COURT OF TEE THIRTEENTH J U D I C I A L D I S T R I C T OF THE STATE OF MONTANA, IJ AND FOR THE COUI'JTY OF B I G HORN P,ND THE P IiONORABLE ROBERT H WILSON, . Respondents. O R I G I N A L PROCEEDING: C o u n s e l of R e c o r d : For Petitioners: L e w i s E. Brueggemann, Billings, Montana For Respondents : Clarence Belue, H a r d i n , Montana Submitted: Decided: Filed: APR 2 8 1983 February 16, 1983 A p r i l 28, 1 9 8 3 - ORDER AND OPINION DENYING WRIT OF SUPERVISORY CONTROL Mr. Justice John C. Court. Sheehy delivered the Opinion of the On February 4, 1.983, relators George W. and Roberta Cady filed in this Court their petition for writ of supervisory control, review or other appropriate relief. In the petition, the relators requested that this Court issue a writ or order (1) declaring the District Court's ejection order removing relators from certain property in Big Horn County to be illegal, (2) granting a stay of all further proceedings in the lower court, (3) ord-ering the return to the relators of all properties involved in lower court action pending the outcome of an appeal then before this Court, and, (4) restoring the parties to the status quo prior to the ejection order of February 1, 1983. Underlying the petition of the relators was an action that was pending in the District Court, Thirteenth Judicial District, Big Horn County, brought by George W. and Roberta Cady, as plaintiffs, against Anne T. Black and Big Horn Bank, as defendants. Plaintiffs claim that Anne T. Black had breached certain contracts with the plaintiffs, and that the bank as escrow holder was also responsible. Defendants denied the Cady's allegations, and Anne T. Black claimed a default under the contract which entitled her to repossess the property. It appears that Anne T. Black had sold to the Cadys a cafe, laundromat, residence and other real property located at Lame Deer, Montana, under two contracts for deed in 1975 and 1976. On August 13, 1982, the District Court signed a judgment, entered on August 16, 1982, to the effect that the plaintiffs were in default under both contracts for deed, but that for reasons of equity, since unjust enrichment of the defendant Black would occur if forfeiture were applied, the District Court relieved the Cadys from forfeiture granting them six months from July 27, 1982, in which to pay the remaining sums due and owing under the contracts for deed. On September judgment $6,394.60 in 23, favor of 1982, Big the Horn attorney fees, with annum from date. District Bank Court granting entered the bank interest at 10 percent per Notice of the entry of this judqment was served by the clerk on September 23, 1982. On November 8, 1982, the District Court amended the judgment of default and relief from forfeiture by granting Anne T. Black attorney fees in the amount of $5,000. Notice of the entry of this amendment to judgment was served on November 9, 1982, by the clerk. On November 17, 1982, upon motion of the Cady's for the withdrawal of the contract documents from the office of the Clerk of the Court, "for the purpose of obtaining a new V.A. loan to pay off properties and for other reasons" the court ordered the release of the documents to the Cadys. On December 8, 1982, Cadys made a motion to set aside and reopen the cause or for a new trial under Rule 60(b), M.R.Civ.P., on discovered which the ground affected that the new cause. evidence The new had been evidence consisted of a report from a handwriting expert to the effect that the contract documents had been altered. Black filed responses objecting to the motion to reopen the cause, and asking for damages and punitive damages for falsity in the allegations respecting the contract documents. On December 23, 1982, the District Court denied all motions. Notice was given by the clerk of the order denying all motions on December 28, 1982. On January 3, 1983, the Cadys filed their notice of appeal "from the order denying plaintiffs' motion for a new trial entered in this action on the 23rd day of December, 1982. I' On January 6, 1983, Anne T. Black appealed from the order denying her motion for damages and punitive damages under the order of December 23, 1-982. On January 28, 1983, the District Court entered an order staying execution of its amended judqment upon the filing of a supersedeas bond in the sum of $18,000 by the Cadys. On February 1, 1983, the District Court entered its order declaring the interest of the Cadys under both contracts forfeited authorizing the bank as escrow agency to deliver to Anne T. Black the escrow deeds to said property and ordering the Rosebud County Sheriff to enter the premises and eject every person holding the same adversely to Anne T. Black and to restore Anne T. Black to possession. The Rosebud County Sheriff made his return to the ejection order, stating that he had served individual copies of the said order and ejected all persons from the premises restoring Anne T. Black to the same. Although a copy of a supersedeas bond is included in the exhibits attached to relators' petition for supervisory control, no supersedeas bond was filed with the District Court or appears in the court file. The District Court has never approved a supersedeas bond. From the foregoing, it should be clear that no appeal was taken by the Cadys from the District Court judgment of August 13, 1982, nor from the subsequent amendments to that judgment. Each of the appeals taken by the Cadys and by Anne T. Black related to the order of the District Court denying Cadys' motion to reopen the case and Black's motion for damages and punitive damages. Both appeals were handled by us in cause no. 83-42 before this Court. On March 3, 1983, on motion of Anne T. Black, we dismissed the appeal in that case and denied rehearing by our order of March 24, 1983. In this cause, on February 10, 1983, we entered an order which granted a stay of all further proceedings in the District Court, denied without prejudice petitioners prayer that all properties be returned to them, denied their prayer that all parties be returned to their respective positions and conditions prior to the ejection order of Februa.ry 1, 1983, and reserved ruling on whether the District Court's ejection order was illegal. That question was deemed submitted on that date. Our examination of the court file and the records in this cause reveal that the order of ejectment issued by the District Court on February 1, 1983, in this case was not illegal, null or void. Rule 62(b), M.R.Civ.P., provides that the District Court may stay the execution of or any proceedings to enforce a judgment when there is pending a motion under Rule 59, or R u l e 60. I n t h i s c a s e , t h e D i s t r i c t C o u r t had a l r e a d y r u l e d on Cad.yls R u l e 60 m o t i o n , and s o R u l e 6 2 ( b ) d o e s n o t a p p l y . The r i g h t o f a judgment h o l d e r t o e n f o r c e a judgment i s s e t f o r t h i n s e c t i o n 25-13-101, i n whose f a v o r judgment which p r o v i d e s t h a t a p a r t y i s g i v e n may a t a n y t i m e w i t h i n s i x v e a r s a f t e r t h e e n t r y t h e r e o f have a w r i t o f e x e c u t i o n i s s u e d f o r i t s enforcement. judgment A execution of debtor o r other party desiring t o stay t h e a judgment o r o r d e r o f t h e D i s t r i c t C o u r t must p r o c e e d u n d e r R u l e 7 of t h e Montana R u l e s o f A p p e l l a t e C i v i l Procedure. That Rule p r o v i d e s t h a t i f an a p p e l l a n t d e s i r e s a s t a y o f p r o c e e d i n g s , where t h e c o u r t h a s made no s u c h o r d e r , h e may p r e s e n t t o t h e D i s t r i c t C o u r t and s e c u r e i t s a p p r o v a l of a s u p e r s e d e a s bond. . fixed the $18,000. District amount However, Court Anne such this case, supersedeas t h e District Court bond in approval prior to the issuance sum o f of the T h e r e f o r e , on F e b r u a r y 1, 1 9 8 3 , t h e judgment T. Black, was entitled to enforcement judgment by e x e c u t i o n u n d e r s e c t i o n s 25-13-101 The D i s t r i c t C o u r t f o l l o w e d t h e s e MCA. the no s u c h bond was e v e r p r e s e n t e d t o t h e for ejection order. holder, of In of a and 25-13-201, statutes, and was a u t h o r i z e d by s t a t u t e t o o r d e r t h e d e l i v e r y o f t h e p o s s e s s i o n of t h e r e a l and p e r s o n a l p r o p e r t y u n d e r MCA . ACCORDINGLY, 1. That supervisory s e c t i o n 25-13-307, I T I S ORDERED: the petition control, writ of of the relators for review or other a w r i t of appropriate r e l i e f i s hereby denied. 2. T h a t c o p i e s o f t h i s o p i n i o n a n d o r d e r b e s e r v e d upon c o u n s e l o f r e c o r d by t h e c l e r k o f t h i s c o u r t . DATED t h i s d a y o f A p r i l , 1983. We Concur: C h i e f Justice
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