No. 87-79 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CARL WEISSMAN & SONS, INC., 

Plaintiff and Appellant, 

-vsMARTY PAULSON d/b/a MONTANA FENCE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert Kolesar, Bozeman, Montana 

For Respondent : 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

James McKenna, Deputy County Attorney, Bozeman 

Filed: 

Submitted on Briefs: May 14, 1987 

Decided: July 21, 1987 

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# 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Plaintiff Carl Weissman & Sons, Inc. appeals the 

December 15, 1986, order of the Eighteenth Judicial District 

Court, Gallatin County, finding storage costs assessed by the 

Gallatin County Sheriff to be reasonable. We affirm. 

On appeal, defendant Paulson is no longer involved in 

the case. Plaintiff Carl Weissman & Sons, Inc. (Weissman & 

Sons) contests the Gallatin County Sheriff's assessment of 

storage costs which eliminated any recovery by Weissman & 

Sons against Paulson. 

Weissman & Sons originally filed an action in justice 

court against Paulson for failure to pay the amount due on 

his account. Weissman & Sons obtained a writ of prejudgment 

attachment from the Justice Court directed to a Honda 

motorcycle owned by defendant Paulson. The sheriff seized 

the motorcycle March 18, 1986, and arranged for towing and 

storage by Art's Towing Service. The motorcycle was stored 

in a heated area of the garage at $5 a day. 

Weissman & Sons subsequently filed a complaint against 

Paulson in District Court on May 19, 1986, alleging failure 

to pay the amount due and owing on his account, $2,210. On 

June 19, 1986, a Sheriff's Return Showing Defendant Not Found 

was filed declaring defendant was unable to be located in 

Gallatin County. On that same date, attorney for Weissman & 

Sons filed a summons for publication. Publication occurred 

June 14, July 1 and 8, 1986. On August 5, 1986, Weissman & 

Sons filed a request for entry of default, which was granted. 

Subsequently, a motion for default judgment was heard before 

the District Court which was granted August 14, 1986, in the 

amount of $2,210.92 plus interest, and a civil penalty of 

$500. 
Following the entry of default judgment, Weissman & Sons 

obtained a writ of execution August 27, 1986. A sheriff's 

sale was held September 24, 1986, at which time the 

motorcycle was removed from storage and sold for $450. The 

towing and storage costs amounted to $1,080.00. 

Weissman & Sons subsequently filed a motion to determine 

reasonable costs. A hearing on the matter was held October 

29, 1986. At the hearing Weissman & Sons introduced evidence 

that the standard storage cost in Bozeman at a storage 

warehouse for a motorcycle to be $18 monthly. The testimony 

did not reveal whether such storage was heated. The 

Sheriff's Department produced testimony from a towing service 

operator and from an auto parts store manager that their 

inside heated storing charges would be $7.50 and $10 a day 

respectively. 

The District Court ruled against Weissman & Sons, 

finding a lack of communication by Weissman & Sons and that 

the sheriff erred on the side of keeping the property in an 

insured, heated storage area. Weissman & Sons appeals and 

raises the following issues: 

1) Whether the Gallatin County Sheriff exceeded his 

authority in placing property seized pursuant to a writ of 

prejudgment attachment with a third party keeper without 

obtaining a court order? 

2) Whether a county sheriff, in seizing and storing 

property pursuant to a writ of prejudgment attachment, is 

acting as a trustee for all parties to writ of prejudgment 

attachment? 

3) Whether the District Court erred in finding that the 

storage costs were reasonable? 

The first issue raised by Weissman & Sons is whether the 

sheriff violated § 27-18-301, MCA, and § 7-32-2142, MCA, by 

employing a keeper without first obtaining a court order. 
Section 27-18-301, MCA, provides that a writ of attachment 

must direct the sheriff to "attach and safely keep" the 

defendant's property. Section 7-32-2142, MCA, provides: 

For the expense in taking and keeping possession of 

and preserving property under attachment, 

execution, or other process, the sheriff shall 

receive such sum as the court or judge may order, 

not to exceed the actual expense incurred. No 

keeper must receive to exceed $10 per day, and no 

keeper must be employed without an order of court 

or be so employed unless the property is of such 

character as to need the personal attention and 

supervision of a keeper. No property shall be 

placed in charge of a keeper if it can be safely 

and securely stored or where there is no reasonable 

danger of loss. 

The record shows Weissman & Sons did not raise violation of 5 

7-32-2142, MCA, before the District Court and the court did 

not consider this section in rendering its decision. 

Weissman & Sons filed a motion to determine reasonable 

costs alleging the sheriff did not attempt to locate storage 

at a reasonable price. Weissman & Sons did not raise 

violation of 5 7-32-2142, MCA, in its affidavit supporting 

the motion, proposed findings, at the hearing, or in its 

motion to reconsider. Weissman & Sons contends that language 

in its brief in support of motion to reconsider raised the 

issue of employment of a keeper by the sheriff without court 

order. We find no language in Weissman & Sons1 briefs or in 

the hearing transcripts which brought this issue to the 

attention of the District Court. There was no citation of 5 

7-32-2142, MCA, nor was the statute mentioned at the hearing 

on the motion to reconsider. The District Court found the 

costs to be reasonable which was the only issue clearly 

presented to the court. We will not address an issue on 

appeal which was not presented to the District Court. 
Chadwick v. Giberson (Mont. 1980), 618 P.2d 1213, 37 St.Rep. 

1723. 

The next issue raised by Weissman and Sons is that the 

sheriff in seizing property under writ of attachment acts as 

a trustee to the parties with an interest in the seized 

property. Weissman & Sons contends that the sheriff violated 

his duty as a trustee by failing to secure the cheapest 

available storage. Weissman & Sons cite Sherlock v. Vinson 

(Mont. 1931), 90 Mont. 235, 1 P.2d 71, wherein this Court 

held the sheriff to be a trustee for the debtor and creditor 

in conducting an execution sale. We are not concerned with 

an execution sale in this case, but with reasonable storage 

costs. 

The duty of the sheriff in this instance was to "attach 

and safely keep" the debtor's property pursuant to the writ 

of attachment. The expenses of keeping the seized property 

should be reasonable, which is consistent with the 

safekeeping of the property. 30 ArnJur 2d, Execution, § 272. 

There is no dispute that the sheriff placed the motorcycle in 

a heated, insured storage area. Testimony reveals that the 

motorcycle had part of its engine disassembled and protection 

from the weather was necessary. Whether or not the sheriff 

violated his duty to safely keep the property due to alleged 

exorbitant storage costs is next addressed. Weissman & Sons 

contends that $5 a day storage costs are clearly unreasonable 

and that the testimony established the "going rate" for 

storage costs in Bozeman to be exorbitant. Weissman & Sons 

presented testimony that storage at a commercial storing 

facility for a motorcycle would be approximately $18 a month. 

The testimony did not reveal whether such storage space was 

heated. 

The sheriff presented testimony that two Bozeman area 

businesses charge $7.50 and $10 a day for inside, heated 
storage. These businesses provide storage but are not in the 

storage business and determine their storage prices based on 

the "going rate" in Bozeman. 

Further testimony at the hearing revealed that the 

sheriff's department did not make an effort to find the 

cheapest storage available for the seized property. Weissman 

& Sons admitted that it was aware the motorcycle was being 

stored at Art's Towing but never inquired as to storage costs 

during the 190 days the motorcycle was in storage. 

The District Court found the storage costs to be 

reasonable. There is substantial credible evidence in the 

record supporting this finding. As noted by the District 

Court, it is not unusual for the value of seized property to 

be consumed by storage costs and creditors should be aware of 

that fact. 

The District Court is affirmed. 

@pa Justice 

We Concur: 

Justices L