No. 87-457 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

CONSTANTINE PROTO, 

Plaintiff and Appellant, 

-vsMISSOULA COUNTY, a political 

subdivision of the State of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry G. Sehestedt, Missoula, Montana 

For Respondent: 

Robert Deschamps, 111, County Attorney; Joan Newman, 

Deputy County Attorney, Missoula, Montana 

Submitted on Briefs: Jan. 14, 1988 

Decided: February 11, 1988 

Filed: FEB i 1 1988' 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the Fourth 

Judicial District, Missoula County, State of Montana. The 

appeal is from a motion to dismiss the complaint under Rule 

12 (b) (6) , M.R.Civ.P. , for failure to state a claim upon which 

relief could be granted. Following briefing and oral 

argument, the District Court granted the motion dismissing 

the complaint with prejudice. Appellant now appeals. We 

affirm. 

On January 21, 1987, pursuant to a writ of execution 

issued by the Missoula County Justice Court, the Missoula 

County Sheriff conducted a Sheriff's sale as a result of a 

judgment against the appellant, Constantine Proto (Proto). 

The Sheriff properly levied on Proto's property, consisting 

of one mink coat and one red fox coat. The Sheriff posted 

the legally required notice of sale pursuant to S 25-13-701, 

MCA. According to that statute, no indication as to form of 

payment is required. At the sale, the Deputy Sheriff 

announced that only cash would be accepted from any 

successful bidder and that personal checks would not be 

accepted. 

At the January 21, 1987 sale, bids were received and 

accepted in the amount of $550 for the mink coat and $600 for 

the red fox coat. However, the successful bidders attempted 

to pay by check, and the checks were refused by the officer 

conducting the sale. The coats were then resold with the 

mink selling for $200 and the red fox selling for $500. This 

time payment was tendered in cash. 

Proto alleges that he was damaged by the requirement 

that cash only would be accepted because bidders were not 

allowed to leave and obtain cash. Therefore, his coats were 
sold for an amount which was considerably less than their 

true value. 

Proto raises one issue for our review: Does the 

complaint herein state a claim for which relief may be 

granted? 

Respondent, Missoula County, states the issue 

differently: Did the District Court correctly dismiss the 

complaint with prejudice because there was no breach of duty 

by the Sheriff's Deputy in the conduct of the execution sale 

of personal property for cash and thus no legal basis for the 

claims made? 

Proto argues that the standard test for the sufficiency 

of a complaint against a motion to dismiss is set forth by 

the United States Supreme Court in Conley v. Gibson (19571, 

355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 II.Ed.2d 80, 84: 

In appraising the sufficiency of the 

complaint we follow, of course, the 

accepted rule that a complaint should not 

be dismissed for failure to state a claim 

unless it appears beyond doubt that the 

plaintiff can prove no set of facts in 

support of his -claim which would entitle 

him to relief. 

This Court has repeatedly endorsed the same test. See, 

Rusch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 

1340. Proto argues that the County's motion to dismiss 

pursuant to Rule 12 (b) (6) , has the effect of admitting all 

well pleaded allegations of the complaint. 

Proto, in his first count, has alleged that the 

Sheriff, in acting as described, failed to sell the coats to 

the highest bidder as required by 25-13-704 (1) , MCA to 

Proto's detriment. Count two notes that the combined market 

value of the coats was $6,500 and that the restriction on the 

mode of payment, particularly in that it was only announced 

at the time of the sale, had a "chilling effect" on the 
bidding resulting in the sale of the property for a grossly 

deficient price. The second count simply presents an 

alternative way of measuring Proto's damages, an issue not 

before this Court. The real meat of the issue is whether or 

not the Sheriff was justified in refusing to accept payment 

by check. 

Sections 25-13-704 (1) and 25-13-708, MCA are the 

primary code sections involved herein. Section 25-13-704, 

MCA, provides: 

(1) All sales of property under 

execution must be made at auction to the 

highest bidder, between the hours of 9 

a.m. and 5 p.m. After sufficient 

property has been sold to satisfy the 

execution, no more can be sold. Neither 

the officer holding the execution nor his 

deputy can become a purchaser or be 

interested in any purchase at such sale. 

(2) When the sale is of personal 

property capable of manual delivery, it 

must be within view of those who attend 

the sale and be sold in such parcels as 

are likely to bring the highest price; 

and when the sale is of real property 

consisting of several known lots or 

parcels, they must be sold separately, or 

when a portion of such real property is 

claimed by a third person and he requires 

it to be sold separately, such portion 

must be thus sold. The judgment debtor, 

if present at the sale, may also direct 

the order in which property, real or 

personal, shall be sold when such 

property consists of several known lots 

or parcels or of articles which can be 

sold to advantage separately, and the 

sheriff must follow such directions. 

Proto argues that the officer conducting the execution 

sale violated the requirement of § 25-13-704, MCA, in that he 

failed to sell the coats to the highest bidder. 

This ties in with § 25-13-708, MCA, and it provides: 
When the purchaser of any personal 

property capable of manual delivery pays 

the purchase money, the officer making 

the sale must deliver to the purchaser 

the property and, if desired, execute and 

deliver to him a certificate of the sale. 

Such certificate conveys to the purchaser 

all the right which the debtor had in 

such property on the day the execution or 

attachment was levied. (Emphasis added.) 

We agree that the problem revolves around what is meant 

by the words "purchase money." Proto contends it means the 

officer must take checks and the County takes the position 

that the Sheriff or his Deputy cannot take checks. It is 

Proto's position that the section simply means that the 

purchaser must pay for the item(s) by any customary means, 

before taking delivery. Proto admits that the meaning of 

"money" includes legal tender currency, but that his 

dictionary defines "money" to include checks and other 

customary means of exchange. 

Absent a statute authorizing it, the sheriff may not 

accept credit or anything other than cash. See, 86 A.L.R.2d 

292, 293. The terms of a judicial sale are prescribed by our 

statute to which the decree of sale must conform. While some 

courts have recognized a limited exception in which the 

judgment creditor consents to a bid paid by check, the 

general rule is that the execution officer is bound to accept 

only cash for the bid, as our statute requires. For the 

exception see, Metz v. Hicklin (Kan. 1928), 268 P. 823. 

Compare, O'Malley v. McMullen (Fla. 1974) , 294 So. 2d 379. 

We believe the intent of the legislature regarding the 

type of payment at a personal property execution sale is 

clear from the reading of our statute which states payment 

must be by "purchase money." 
Proto cites Sherlock v. Vinson (1931), 90 Mont. 235, 1 

P.2d 71, as supporting his position on what is money and what 

can be accepted at an execution sale. However, this 

proposition was not at issue in Sherlock. The case is 

distinguishable from the present case on both the facts and 

the law. In Sherlock the sheriff accepted a check for 

payment and the buyer stopped payment the next day. The 

sheriff then sued the repudiating buyer. It seems to us that 

the result and the principles in Sherlock are more persuasive 

to the County's position, than to Proto's position. 

We find no merit to Proto's argument that since there 

is a statutory duty to sell at a public auction to the 

highest bidder, the Sheriff has a duty to accept any medium 

of payment that is tendered. The duty to sell to the highest 

bidder in no way restricts the Sheriff's authority to 

announce what medium of payment will be accepted. See, 

§ 25-13-708, MCA. 

In addition, S 25-13-704, MCA, which requires public 

auction to the highest bidder, is a procedural statute 

prescribing the hours of sale and prohibiting the execution 

officer or deputy from becoming a purchaser. The statute 

really concerns itself with the method of the auction sale 

and not with the terms of the sale. 

Additionally, Proto argues that the Sheriff has a duty 

at an execution sale to obtain a fair market value for the 

property. If he does not do so, he creates a "chilling" 

affect on bidding. We find no legal basis for such an 

argument. Also, Proto conceded in his brief that there was 

not a requirement that the Sheriff obtain full market value 

at the execution sale. This concession alone requires the 

dismissal of the complaint in its entirety because the sole 

claim of relief was for the amount based on a fair market 

value of the goods. 
We find no validity to Proto's suggestion that the 

Uniform Commercial Code creates a duty by the execution 

officer to accept any medium of payment tendered. Nor do we 

find any authority that the Uniform Commercial Code is 

applicable to execution sales. The procedural authority and 

duty of the execution officers is set forth in our statutes 

addressing execution of judgment. 

The order of the District Court dismissing the 

complaint is affirmed. 
Mr. Justice John C. Sheehy, dissenting: 

Section 25-13-708, MCA, contemplates that the actual 

cash may not necessarily be collected at the moment of sale. 

The section obviously empowers the officer to hold the 

personal property until he receives the cash. Thus the 

officer could take a check and hold the property until the 

check cleared the bank. In these days of checks and balances 

in business as in government, checks have become an accepted 

medium of exchange. The result here may have been a higher 

bid of checks were accepted. I dissent. 

C,,k Justice 4 --