No. 84-98 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

CI-IARLE S ADAMS , 

Plaintiff and Respondent, 

ROBERT M. CRISMORE, JEAN CRISMORE 

and R.M. CRISMORE, INC., a Pqont. 

corp. , 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of the Lake, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman, 

Ralispell, Montana 

For Respondent : 

Keith C. Rennie, Polson, Montana 

Submitted on Briefs: April 26, 1984 

Decided: Jxly 10, 1984 

Filed: 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Charles Adams, plaintiff, obtained a default judgment 

against Robert M. Crismore, defendant, in the Justice Court 

of Polson on September 21, 1983. Defendant appealed the 

default judgment to the District Court of the Fourth Judicial 

District in Lake County. On December 8, 1983 the District 

Court entered a judgment denying defendant's motion to set 

aside and dismiss the Justice Court's default judgment. 

Defendant appeals. 

Plaintiff filed two actions against defendant on August 

29, 1983. One complaint filed in the Justice Court of Polson 

Township sought damages from defendant for nonpayment of a 

debt on a personal loan and for services rendered as an 

independent contractor. The second action filed in the 

District Court of Lake County claimed damages from defendant 

for unpaid wages owed plaintiff. Plaintiff's counsel served 

both complaints upon defendant in Kalispell, Flathead County, 

Montana. 

Defendant filed a special appearance motion to dismiss 

alleging lack of personal jurisdiction over defendants by 

,Justice Court of Polson Township since defendants resided 

outside of Lake County and were improperly served with 

process outside of Lake County. At a hearing on September 

21, 1983 the Justice of the Peace ruled that proper 

jurisdiction of the Justice Court had been invoked, denied 

defendant's motion to dismiss for lack of jurisdiction and 

subsequently entered a default judgment against defendant. 

Defendant filed a notice of appeal to the District Court 

along with the requisite undertaking on September 26, 1983. 

Plaintiff immediately filed an objection to undertaking 

claiming that it was fatally defective and failed to perfect 
a proper appeal. Defendant was requested to provide 3 good 

and sufficient undertaking within a reasonable time. 

Defendant moved the District Court to consolidate the 

appeal from the Justice Court with the existing District 

Court action. Plaintiff filed an objection to defendant's 

motion for consolidation, claiming that the motion was 

untimely and that all actions by the District Court should be 

postponed until defendant's appeal was properly perfected by 

a sufficient undertaking or otherwise dismissed. Defendants 

failed to cure the defective undertaking. On October 24, 

1983, plaintiff filed a motion to dismiss defendant's appeal 

because the fatal insufficiency in the undertaking failed to 

invoke the proper jurisdiction of the District Court. 

A hearing on November 2, 1983 was held before retired 

district judge, the Honorable E. Gardner Brownlee, sitting in 

place of the Honorable Douglas G. Harkin. Defendant 

contended that since the Justice Court acted without personal 

jurisdiction, its judgment was rendered a nullity and subject 

to a collateral attack which did not require an undertaking 

to be filed. Additionally, defendant requested the District 

Court to consider his appeal as a writ of review. At the 

hearing, defendant filed and served on plaintiff, without 

prior notice, a motion to set aside Justice Court judgment 

and dismiss. The court granted plaintiff two weeks to 

respond to defendant's motion. On November 18, plaintiff 

appeared before Judge Brownlee and argued that the District 

Court lacked proper jurisdiction to rule on defendant's 

motion to dismiss because defendant's defective undertaking 

had not been corrected. The trial court did not require 

defendant to file a sufficient undertaking and granted 

defendant's motion to dismiss the justice judgment. 
November 21, plaintiff filed a rule 60(b) motion 

requesting the District Court to set aside its ruling of 

November 18, and to consider plaintiff's motion to dismiss 

the appeal for lack of district court jurisdiction. Having 

resumed jurisdiction over his cases, Judge Harkin presided at 

the November 30 hearing where all parties were represented by 

counsel. The District Court's order of Decemher 8, modified 

its previous order pursuant to Rule 60(b), M.R.Civ.P. and 

granted plaintiff's motion to dismiss defendant's appeal due 

to lack of jurisdiction since defendant's requisite 

undertaking was defective and such insufficiency was not 

corrected. 

Appellant presents the following issues on appeal: 

1. Whether the District Court erred in granting 

plaintiff's motion to dismiss defendants' appeal from the 

Justice Court. 

2. Whether the District Court erred in not acting upon 

defendants' motion to consolidate. 

The dispositive issue before this Court is whether the 

District Court had proper jurisdiction to address the appeal 

from the lower court judgment. Jurisdiction of the Justice 

Court is not at issue on appeal and not discussed herein. 

Appellate procedure to district court from justices' 

courts is set out in 25-33-201, MCA, the pertinent part of 

which states: 

"25-33-201. Undertaking on appeal. (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 . . ." 

In State ex rel. Gregory v. District Court (1930), 86 

Mont. 396, 398, 284 P. 537, this Court held: 

"The settled rule is that an undertaking on appeal 

in substantial compliance with the sta.tute is made 
a prerequisite to clothe the district court with 

jurisdiction on an attempted appeal to the district 

court, and if such undertaking is not filed, or is 

totally defective, the appeal is a mere nullity." 

Unless an appeal from a justice's court is effectuated 

in accordance with the controlling statute, the district 

court has no jurisdiction of the appeal. The subject appeal 

was not properly perfected due to deficiencies of the 

a.ccompanying requisite undertaking. Although the sum of the 

undertaking was sufficient, the singular signature violates 

25-33-201, MCA, which clearly requires two or more sureties. 

In addition, Empire Construction Company, Inc., which appears 

on. the undertaking, is a foreign corporation, not 

incorporated under the laws of this State for the purpose of 

making, guaranteeing or becoming a surety and thus is not a 

valid corporation surety pursuant to 33-26-101(1), MCA. 

Moreover, the trial court judge unequivocably recognized that 

the appellant's undertaking filed with the notice of appeal 

failed to comply with statutory criteria. 

Section 25-33-207, MCA provides: 

"Defective undertaking. No appeal shall be 

dismissed for insufficiency of the undertaking 

thereon or for any defect or irregularity therein 

if a good and sufficient undertaking be filed in 

the district court at or before the hearing of the 

motion to dismiss the appeal, which undertaking 

must be approved by the district judge." 

The record reveals that the defendant had adequate time 

to provide a. sufficient and good undertaking prior to or on 

the day of the November 2 hearing but failed to cure said 

defects. 

Due to the defendant ' s defective undertaking his appeal 

is unperfected as a matter of law, and fails to properly 

invoke the jurisdiction of the District Court. District 

Court's judgment granting plaintiff's motion to dismiss 

defendant's appeal due to lack of jurisdiction is affirmed. 
Therefore, the second issue iS moot. 

We concur: