No. 80-268 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

WENDELL D. HADFORD, 

Plaintiff and Appellant, 

ELIZABETH M. HADFORD, 

Defendant and Respondent. 

Appeal from: District Court of the District, 

In and for the County of Gallatin 

Hon. W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Landoe, Brown, Planalp, Komrners and Lineberger, 

Bozeman, Montana 

For Respondent: 

Morrow, Sedivy, Olson and Scully, Bozeman, Montana 

Filed: 

AUG S Ti 198Q 

Submitted on briefs: August 7, 1980 

Decided: AUG 2 7 1980 

. lisiuwyClerk 
ORDER AND OPINION 

Mr. Justice John C. Sheehy delivered the Order and Opinion 

of the Court. 

Appellant Wendell D. Hadford applies to this Court for 

relief from an order of the District Court, dated July 23, 

1980, requiring appellant to file in the District Court 

within five days of the order a supersedeas bond and also 

providing that if he failed to file the supersedeas bond, a 

motion to dismiss the appeal would be granted. 

The original action is cause no. 21177, pending in the 

District Court of the Eighteenth District, for Gallatin 

County. Wendell D. Hadford, as plaintiff, was ordered in a 

judgment entered by the District Court on April 29, 1980, to 

execute a deed to the defendant, Elizabeth M. Hadford, to 

certain real property in Bozeman, Gallatin County, and a 

bill of sale for a laundromat situated in that city, to pay 

Elizabeth M. Hadford $3,554.44 for delinquent support payments 

for children, and to pay attorney fees. Wendell Hadford 

filed his notice of appeal on May 21, 1980. On July 9, 

1980, Elizabeth Hadford moved to dismiss the appeal for the 

reason that Wendell had failed to file an undertaking or 

supersedeas bond in connection with his appeal. On July 17, 

1980, an undertaking for costs of appeal was filed by Wendell 

but no supersedeas bond has been furnished by him. 

Elizabeth filed her motion to dismiss the appeal because 

a supersedeas bond had not been filed nor had the deed been 

executed within the ten days required in the original District 

Court order. Wendell thereupon filed his objections to the 

motion to dismiss and applied to the District Court for a 

stay of judgment pursuant to the Rule 7(a), M.R.App.Civ.P. 

It was after these motions that the ~istrict Court entered 

its order of July 23, 1980, requiring the appellant to file a 

supersedeas bond on the penalty of having his appeal to this 

Court dismissed after five days. 

-2- 
 he single issue raised is whether the District Court 

has the power to dismiss the appeal because the appellant 

has not filed a supersedeas bond. Resolution of the issue 

requires an examination of the provisions of the Montana 

Rules of Appellate Civil Procedure respecting supersedeas 

bonds. 

Under Rule 4(a), M.R.App.Civ.P., an appeal is taken by 

filing the notice of appeal in the District Court. It is 

further stated in that rule that the failure of an appellant 

to take any step other than the timely filing of a notice of 

appeal does not affect the validity of the appeal, but is 

ground only for such action as the Supreme Court deems 

appropriate, which may include dismissal of the appeal. 

Under the Montana Rules of Appellate Civil Procedure, 

therefore, the only jurisdictional step required of an 

appellant to vest the Supreme Court with authority in the 

cause is the filing of the notice of appeal. By virtue of 

the same rule, the failure to take any other step in connection 

with the appeal, which would include the filing of a supersedeas bond, is subject only to such action as the Supreme 

Court may take. It is exclusively in the province of the 

Supreme Court under Rule 4(a), M.R.App.Civ.P., as to whether 

an appeal should be dismissed for failure to take additional 

steps, once jurisdiction of the Supreme Court is vested by 

the filing of the notice of the appeal. 

In this case the District Court was operating under 

Rule 7, M.R.App.Civ.P. That rule generally relates to the 

powers of the District Court with respect to undertakings 

and supersedeas bonds after a judgment has been entered in 

the District Court. Generally speaking the rule provides 

that the District Court may grant an ex parte stay of execution 
after the judgment is entered for such period of time and 

upon such conditions as the District Court deems proper. 

Once the service of the notice of appeal has been accomplished, 

then the District Court may on application of the appellant, 

order a stay of execution for a longer period, provided the 

appellant presents to the District Court a supersedeas bond 

conditioned upon satisfaction of a judgment or order in full, 

together with costs, interest and damages for delay, if for 

any reason the appeal is dismissed, or if the judgment or 

order of the District Court is affirmed. 

Two other provisions of Rule 7(a), M.R.App.Civ.P., 

relate to the case here. Rule 7(a), also states that when 

the judgment is for the recovery of money not otherwise 

secured, the amount of the bond shall be fixed by the District 

Court at such sum as will cover the whole amount of the 

judgment remaining unsatisfied, costs on appeal, and interest 

and damages for delay, unless the District Court after 

hearing determines a different amount is proper. In addition, 

the rule provides that if the judgment determines the disposition 

of property, the amount of the supersedeas bond shall be 

fixed at such sum as will secure for the judgment holder, an 

amount for the use and detention of the property, costs of 

action, costs of appeal, interest and damages for delay. 

Clearly under Rule 7, M.R.App.Civ.P., the ~istrict 

Court is given the power to stay the execution of a judgment 

entered in its court and has broad discretion in fixing the 

amount of supersedeas bond upon which the stay of execution 

may be conditioned. Just as clearly, however, the ~istrict 

Court has no authority to order the dismissal of an appeal, 

which authority is in the exclusive province of the Supreme 

Court. We held that a District Court could not dismiss an 

appeal for the failure to file a supersedeas bond in Bryant 

Development Association v. Dagel (1974), 166 Mont. 8, 531 P.2d 

1319. 

-4- 
When the District Court provides for a supersedeas 

bond, and the supersedeas bond is not filed, then of course, 

there is no stay of execution, and there is available to the 

judgment holder all of his rights and remedies of attachment 

and execution for the purpose of securing satisfaction of 

the judgment. This is provided in Rule 64, M.R.Civ.P., which 

states: 

"At the commencement of and during the course 

of an action, all remedies providing for seizure 

of person or property for the purpose of securing 

satisfaction of the judgment ultimately to be 

entered in the action are available under the 

circumstances and in the manner provided by law." 

In addition, Rule 70, M.R.Civ.P., provides that if a 

judgment directs a party to execute a conveyance of land or 

to perform any other specific act, and the party fails to 

comply within the time specified, the District Court may 

direct the act to be done at the cost of the disobedient 

party by some other person appointed by the court, and the 

act when so done has like effect as if done by the parties. 

These remedies, of course, are available to the judgment 

holder where no supersedeas bond has been provided, and no 

stay of judgment exists. 

That portion of the order of the District Court dated 

July 23, 1980, which states that, "failure to file the 

supersedeas bond shall result in the granting of the motion 

to dismiss" is hereby vacated. The remainder of such order 

shall be and remain in full force and effect. Neither party 

shall recover costs for this proceeding until the eventual 

disposition of the appeal. 

The clerk of this Court shall cause a copy of this 

order and opinion to be mailed to the clerk of the District 

Court of the Eighteenth Judicial District in and for the 

County of Gallatin, in cause no. 21177, pending in that 

District Court. 
DATED this day of August, 1980. 

Justice 

We Concur: i/ 

Chief Justice