HOWARD v HOLT
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NO. 91-016 IN THE SUPREME COURT O F THE STATE O F MONTANA Plaintiff and Respondent, CLERK OF S U P R E M E COURT -vs- STATE OF MONTANA THOMAS D. HOLT and GEORGINE 0. HOLT, husband and w i f e , GUY HOLT, DAWN MARIE HOLT, Defendants and Appellants. APPEAL FROM: District Court of the Fifth J u d i c i a l D i s t r i c t , In and for the County of Beaverhead, The Honorable Frank M. D a v i s , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: W. Cecil Jones, Dillon, Montana. For Respondent: J o h n H. J a r d i n e a n d David A. Grauman, Whitehall, Montana. Grauman; J a r d i n e & Submitted on briefs : Decided: Filed: f Clerk April 18, 1991 May 30, 1991 Justice R.C. McDonough delivered the Opinion of the Court. Defendants Thomas D. Holt, Georgine 0 . Holt, Guy Holt, and Dawn Marie Holt appeal from a judgment and decree of foreclosure entered by the Fifth Judicial District, Beaverhead County. It is uncontested that the defendants were in default on a mortgage which was entered into with plaintiff, Harry C. Howard. The mortgage was secured by certain real property located in Beaverhead County. The defendants maintain that the District Court erred when it looked only at the promissory note and mortgage during the foreclosure proceeding. They further argue that the District Court should have considered a property exchange agreement, entered into by the parties four months before the note and mortgage were signed. We disagree. Relevant evidence is defined as .. . ' I evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, M.R.Evid. The District Court held that the note and mortgage superseded all prior agreements, including the property exchange agreement, entered into by the parties. The property exchange agreement had performed its written purpose when the parties completed theirtaxfree exchange of like assets. Its provisions cannot be utilized to change the plain wording of the written promissory note and mortgage, and was therefore irrelevant to the issues of default and foreclosure. Determination of relevance and admissibility of evidence is within the discretion of the trial court. We will not reverse its determination of these issues unless a clear abuse of discretion is shown. Dahlin v. Holmquist (1988), 235 Mont. 17, 766 P.2d 239. We find no abuse of discretion and, accordingly, the judgment of the District Court is affirmed. This appeal is dismissed. Let remittitur issue forthwith. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to West Publishing Company We Concur: May 30, 1991 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: W. CECIL JONES Attorney at Law 134 East Reeder Street P.O. Box 166 Dillon, MT 59725 John H. Jardine and David A. Grauman JARDINE & GRAUMAN P.O. Box 488 Whitehall, Montana 59759 ED SMITH CLERK O F THE SUPREME COURT STATE O F MONTANA BY: ?jv Deputy
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