No. 90-060 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

NANCY L. BERRY, Conservator of 

the Estate of Esther Seman, 

a Protected Person, 

Plaintiff and Respondent, 

CAROLL SEMAN 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carol1 Seman, pro se, Great Falls, Montana 

For Respondent: 

Kevin C. Meek, Alexander, Baucus & Linnell, 

P.C., Great Falls, Montana 

Filed: 

Submitted on briefs: August 16, 1990 

Decided: November 27, 1990 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Appellant, Caroll Seman, appeals from the dismissal of his 

appeal from the Justice Court, Great Falls Township, Cascade 

County, to the Eighth Judicial ~istrict Court, Cascade County. We 

affirm. 

The dispositive issue is whether Seman properly perfected an 

appeal from the Justice Court to the District Court. 

On September 14, 1989, respondent, Nancy L. Berry, conservator 

of the estate of Esther Seman, filed a complaint against appellant, 

Caroll Seman, in the Cascade County Justice Court. The complaint 

sought damages for money owing on a rental agreement and the 

removal of Seman from the subject premises. The Justice Court 

entered judgment against Seman on November 2, 1989, awarding Berry 

damages in the amount of $1,400 together with attorney's fees of 

$200 and costs of $31.50. The court also granted Berry immediate 

possession of the property. 

On the same day, Seman filed a notice of appeal to the 

District Court. Approximately 25 days later, on November 27, 1989, 

he filed a document entitled Posting of Property Bond. The 

property bond consisted of a Montana State Beer and Wine License. 

On November 30, 1989, Berry filed an objection to the property 

bond along with an affidavit of her attorney, which contested the 

ownership of the beer and wine license. After a hearing on the 

matter on December 12, 1989, the District Court ruled that the 

property bond was not an acceptable undertaking. 

On December 20, 1989, Seman filed another document entitled 

2 
8 I 

Posting of Property Bond. In this property bond, Seman pledged a 

1959 mobile home and a 1982 Pontiac Bonneville as an undertaking. 

The property bond was signed by Andrew Seman and Sis Seman, the 

purported owners of the property. 

Berry filed an objection to the second property bond on 

December 28, 1989, and, on January 3, 1990, a motion to dismiss 

for failure to file a proper undertaking on appeal. A hearing was 

held on the two motions, at the close of which the District Court 

granted the motion to dismiss. Seman appeals from this ruling. 

A district court obtains jurisdiction over an appeal from 

justice court once notice of appeal has been filed and served on 

the parties, the justice court record has been transmitted to the 

district court and an undertaking that substantially complies with 

statutory requirements has been filed. State ex rel. Hackshaw v. 

District Court, 48 Mont. 477, 479-80, 138 P. 1100, 1100-01 (1914). 

If an appellant fails to perfect the appeal by neglecting to file 

an undertaking or filing an undertaking that is totally defective, 

the district court does not obtain jurisdiction over the action and 

Itthe appeal is a mere nullity.I1 State ex. re1 Gregory v. District 

Court, 86 Mont. 396, 398, 284 P. 537, 537 (1930). 

The statute delineating the requirements of an undertaking on 

appeal from justice court to district court provides in pertinent 

part: 

(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. The undertaking 

must be conditioned, when the action is for the recovery 
of money, that the appellant will pay the amount of the 

judgment appealed from and all costs if the appeal be 

withdrawn or dismissed or the amount of any judgment and 

all costs that may be recovered against him in the action 

in the district court. 

(3) When the judgment appealed from directs the delivery 

of possession of real property, the execution of the same 

cannot be stayed unless a written undertaking be executed 

on the part of the appellant, with two or more sureties, 

to the effect that: 

(a) during the possession of such property by the 

appellant, he will not commit or suffer to be committed 

any waste thereon; and 

(b) if the appeal be dismissed or withdrawn or the 

judgment affirmed or judgment be recovered against him 

in the action in the district court, he will pay the 

value of the use and occupation of the property from the 

time of the appeal until the delivery of possession 

thereof or he will pay any judgment and costs that may 

be recovered against him in said action in the district 

court, not exceeding a sum to be fixed by the justice or 

judge of the court from which the appeal is to be taken, 

which sum must be specified in the undertaking. 

section 25-33-201, MCA. 

If an adverse party objects to the sufficiency of the 

sureties, the appellant must justify the amount of the property 

pledged. Section 25-33-203, MCA. The property's total value must 

equal twice the amount of the judgment, including costs. Section 

25-33-201 (1) , MCA. However, when calculating the total worth of 

the property, the value of the property must be reduced by any 

statutory exemption that may apply. section 33-26-102, MCA. 

In the present case, the undertaking was defective on its 

face. Both pieces of property pledged were subject to statutory 

exemptions. The mobile home, which qualified for a homestead 

exemption under 5 70-32-101, MCA, was allegedly valued at an 
unencumbered worth of $3,400. It was therefore totally exempt 

property because a homeowner may claim up to $4 0,000 of a homestead 

as exempt from execution. Section 70-32-104, MCA. 

The motor vehicle, valued by the Semans at $3,500, was subject 

to an exemption of $1,200. Section 25-13-609(2), MCA. When the 

$1,200 exemption was deducted from $3,500, the value of the car 

equaled $2,300, which was less than the sum of twice the amount of 

judgment , including costs. Because the total amount of the 

property pledged in the bond was less than that required by the 

statute, the undertaking was deficient. 

The undertaking was further flawed by Semants failure to 

follow the dictates of 9 25-33-201(1), MCA, which requires the 

appellant to promise that he will pay either 1) the amount of the 

justice court judgment plus costs if the appeal is withdrawn or 

dismissed; or 2) the amount of the district court judgment plus 

costs if he does not prevail in that forum. The undertaking was 

also defective because Seman neglected to follow the mandates of 

5 25-33-201(3), MCA, which requires the appellant to file a written 

statement promising that he will not commit waste upon the property 

and that he will pay for the value of the use of the property in 

the event that the judgment of the justice court is affirmed or the 

appeal is dismissed. 

Because Seman failed to comply with the statutory requirements 

for filing an undertaking, the appeal was not perfected and the 

District Court did not obtain jurisdiction over the action. 

Accordingly, the District Court did not err in dismissing the 
appeal. 

Seman raises several additional issues questioning the rulings 

and actions of the Justice Court. We need not consider these 

issues, however, because this Court will not conduct an appellate 

review of actions taken by the justice court when a party has 

failed to perfect an appeal in the district court. See State ex 

rel. Estes v. Justice Court, 129 Mont. 136, 138, 284 P.2d 249, 250 

(1955). 

Affirmed.