No. 80-268 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

WENDELL D. HADFORD, Plaintiff and Appellant,

ELIZABETH M. HADFORD, Defendant and Respondent.

Appeal from: DistrictCourt 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: 

## AUGS

## Ti 198Q Submitted on briefs: August 

### 7, 1980 Decided: 

## AUG271980



## . 

# lisiuwyClerkORDER 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 DistrictCourt, dated July 23, 1980, requiring appellant to filein the District Court within fivedays of the order a supersedeas bond and also providing that if he failed tofilethe supersedeas bond, a motion todismiss the appeal would be granted. The original action 

### is cause no. 21177, pending inthe 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 tothe defendant, Elizabeth M. Hadford, to certain real property inBozeman, Gallatin County, and a bill of sale for a laundromat situated inthat city, topay Elizabeth M. Hadford $3,554.44 for delinquent support payments for children, and topay attorney fees. Wendell Hadford filedhis notice of appeal on May 21, 1980. On July 9, 1980, Elizabeth Hadford moved todismiss the appeal for the

reason thatWendell had failed tofilean undertaking or supersedeas bond inconnection with his appeal. On July 17, 1980, an undertaking for costs of appeal was filedby Wendell but no supersedeas bond has been furnished by him. Elizabeth filedher motion todismiss the appeal because

a supersedeas bond had not been filed nor had the deed been executed within the ten days required inthe originalDistrict Court order. Wendell thereupon filed his objections tothe motion todismiss and applied tothe District Court for a stay of judgment pursuant tothe Rule 7(a),M.R.App.Civ.P. Itwas after thesemotions that the ~istrict Court entered 

### its order of July 23, 1980, requiring the appellant to filea supersedeas bond on the penalty of having his appeal tothis 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 supersedeasbond. 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 DistrictCourt. 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, whichmay 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 Courtmay take. It 

### is exclusively in the province of the SupremeCourt 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 Courtwith respect to undertakings and supersedeas bonds after a judgment has been entered in the District Court. Generally speaking the rule provides that the District Courtmay 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 Courtmay 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, togetherwith costs, interestand damages for delay, if for any reason the appeal is dismissed, or if the judgment or order of the District Court is affirmed. Two otherprovisions of Rule 7(a), M.R.App.Civ.P., relate to the case here. Rule 7(a), also states thatwhen 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 DistrictCourt 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 supersedeasbond shall be fixed at such sum as will secure for the judgmentholder, 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 supersedeasbond upon which the stay of execution may be conditioned. Just as clearly, however, the ~istrict Courthas 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 DevelopmentAssociation v. Dagel (1974), 166 Mont. 8, 

### 531 P.2d 

### 1319. -4-When the DistrictCourt 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 tothe judgment holder allof his rights and remedies of attachment and execution for thepurpose of securing satisfaction of the judgment. This isprovided inRule 64, M.R.Civ.P., which 

### states: "At the commencement of and during the course of an action, allremedies providing for seizure of person orproperty for thepurpose of securing satisfaction of the judgment ultimately tobe entered inthe action 

### are available under the circumstances and inthemanner provided by law." In addition, Rule 70, M.R.Civ.P., provides that if a judgment directs a party toexecute a conveyance of land or toperform any other specific act, and the party failsto comply within the 

### time specified, the DistrictCourt may direct the 

### act tobe done atthe cost of the disobedient party by some otherperson appointed by the court, and the actwhen so done has likeeffect as if done by the parties. These remedies, of course, areavailable tothejudgment holder where no supersedeas bond has been provided, and no stayof judgment exists. That portion of the order of the DistrictCourt dated July 23, 1980, which 

### states that, "failure to filethe supersedeas bond shall result in the granting of the motion todismiss" ishereby vacated. The remainder of such order shallbe and remain in full force and effect. Neither party shallrecover costs for thisproceeding until the eventual disposition of the appeal. The clerk of thisCourt shall cause a copy of this order and opinion tobe mailed tothe clerk of the District Court of the Eighteenth Judicial Districtinand for the County of Gallatin, incause no. 21177, pending in that DistrictCourt.

### DATED this

# day of August, 

### 1980.

Justice

We Concur: 

# i/

Chief Justice