No. 87-80 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JOAN McWILLIAMS, 

Plaintiff and Respondent, 

-vsJEAN CLEM, CLEM'S WORD PROCESSING 

CENTER, CLEM'S PLACEMENT SERVICE, 

DEE ANN LANGEL and STAN TENMEY, 

Defendants and Appellants, 

-vsGEORGE McWILLIAMS, 

Third Party Defendant. 

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: 

Wellcome, Frost & Bartlett; Albert Frost, Bozeman, 

Montana 

Corette, Smith, Pohlman & Allen; Lisa Swan, Butte, 

Montana 

Eula Compton, Bozeman, Montana 

For Respondent : 

Heberling Law Firm; Allan McGarvey, Kalispell, 

Montana 

Karl Knuchel, Livingston, Montana 

Submitted on Briefs: June 4, 1987 

Decided: September 10, 1987 

Filed: SEP I 0 1987 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

We have here a case where a notary public, at the behest 

of a husband, took the acknowledgment of a deed transferring 

real property without the notary knowing or having 

satisfactory evidence that the wife, whose name appeared on 

the deed as a signator-grantor, was the individual described 

in and who executed the deed. The wife was not present 

before the notary public at the time of the acknowledgment, 

nor was contact made with the wife by the notary public. 

Nevertheless, the notary public signed the certificate of 

acknowledgment contained in the deed instrument as if the 

wife had personally appeared before the notary public and 

made the acknowledgment. We determine principally that the 

notary public was negligent in the performance of official 

duty, and is liable for such damages as are proximately 

caused by such negligence. 

This appeal comes to us from the District Court, 

Eighteenth Judicial District, Gallatin County, Montana. 

Judgment was entered by the court, sitting without a jury, in 

favor of the wife, Joan McWilliams, holding that the deed was 

void as to Joan; that Joan should recover $19,950 from the 

notary public for loss of use, and $17,000 in attorney fees; 

and that Dee Ann Langel, the grantee in the deed, was jointly 

and severally liable with the notary public for Joan's loss 

of use in the sum of $19,950. Jean Clem, Clem's Word 

Processing Center, Clem's Placement Service, Dee Ann Langel 

and Stan Tenney, all appeal from the judgment, some from 

different facets of the judgment, which will be explained as 

we go along. 
In the issues presented on appeal, no attack is made by 

the appellants on the findings of fact of the District Court. 

We utilize those findings therefore as background for this 

case. 

George and Joan McWilliams were married in 1955. Eight 

children were born to their marriage. They constructed a 

residence in 1975 large enough to accommodate their family on 

the real property here involved. The residence was subject 

to a trust indenture in the principal amount of $70,000, for 

a loan in 1976 by Home Federal Savings and Loan Association. 

During the course of their marriage, George McWilliams 

handled all of the business transactions of the family, and 

Joan relied on him for all business decisions. Joan is not 

knowledgeable in the ways of business or law. She denied 

ever knowingly signing blank documents and claimed that she 

tried to understand what she was signing. She admitted 

sometimes that her husband pressured her to sign documents 

without explanation. She never knew the extent of her 

husband's business or personal dealings. 

In 1980, the McWilliams' subdivided their real property 

into building lots called Tracts A and B with the residence 

located on Tract A. 

Joan McWilliams left the residence in June, 1980. At 

the time, the property was in good condition and had a rental 

value of $700 to $800 per month and a fair market value of 

$165,000. Tract B was valued at $30,000. Joan McWilliams 

knew the property had been listed for sale, and from her 

husband's statements, she believed that the property was 

rented. 

In 1981, Joan McWilliams moved to Ft. Collins, Colorado. 

The parties separated in June, 1981, and thereafter, the 

contacts were very limited because there had been a violent 

encounter a.t the time of the separation. At times, George 
would return without his wife's consent to her apartment and 

stay overnight. Their feelings after the date of separation 

were not amicable, and there were no business dealings after 

the separation date. 

From June, 1980, to June, 1981, the residence was 

vacated and had fallen into disrepair. Thomas and Dee Ann 

Langel moved to the property on June 14, 1981, as a rental 

and later purported to purchase the residence. After they 

moved in, they did considerable work on the residence in the 

form of repair and replacement. By warranty deed dated 

August 26, 1981, George McWilliams and Joan McWilliams 

purported to sell their interest in both Tracts A and B to 

Dee Ann Langel. The court found, however, that the evidence 

established that Joan C. McWilliams did not sign the deed, 

although her signature on the deed is legitimate. The court 

stated, "George McWilliams somehow obtained her signature 

prior to that time, and, thereafter, filled in the 

information to convey Tracts A and B to Dee Ann Langel. The 

deed was then presented to Jean Clem for completion of the 

acknowledgment, and notarization of the deed." 

The court found that Jean Clem, as a notary public, did 

not make the necessary verification that Joan C. McWilliams 

had signed the deed, nor did she require that Joan C. 

McWilliams appear before her and make the acknowledgment. 

When Home Federal Savings and Loan Association found out 

about the deed, it declared the unpaid balance on the trust 

indenture of $66,012.31 accelerated and demanded payment. On 

January 28, 1982, an agreement was made with Home Federal 

Savings and Loan Association whereby Thomas and Dee Ann 

Langel agreed to assume the loan at an increased interest. 

The modification agreement contained a forgery of Joan C. 

McWilliamsl signature. 
At the time of the acknowledgment, Joan McWilliams was 

living in Colorado. In September, 1982, she heard from an 

acquaintenance that the house had been sold. She expressed 

surprise and shock at this information and investigated the 

matter in December, 1982, in Bozeman, Montana. She obtained 

a copy of the Langel deed at the courthouse and confronted 

Jean Clem about the improper acknowledgment. Jean Clem 

admitted that she assumed Joan McWilliams' signature was 

legitimate and stated she had similarly completed 

acknowledgements of existing signatures for George McWilliams 

at other times. Joan McWilliams also confronted Thomas 

Langel and was then shown documents of sale. 

The District Court outlined other questionable 

transactions that had occurred at and following the time of 

the purported transfer of the real property from the 

McWilliams' to Dee Ann Langel. George McWilliams obtained a 

$30,000 loan from Western Federal on August 26, 1981, forging 

his wife's signature on the loan documents. Of this borrowed 

amount, $25,000 was said to be credited to Thomas Langel as a 

downpayment on the residence, with McWilliams also receiving 

a lot in a subdivision known as Hyalite Foothills. Langel 

was a business associate at times with McWilliams. The court 

found that Thomas Langel was "also prone to questionable 

business transactions." As an example, on August 27, 1981, 

one day after the purported purchase of the residence, he 

caused a contract for deed to be prepared for Tract B. A 

friend, Stan Tenney, a Bozeman police officer, was said to be 

the purchaser, and the purchase price was listed at $37,500, 

although no consideration was ever paid. Langel caused the 

contract to be sold to Gallatin Dairy pension plan and agreed 

privately with Tenney to make the Tenney payments to the 

pension plan. This fictitious transaction apparently was for 

the purpose of raising money for Langel. 
No title insurance was obtained concerning the purported 

transfer from the McWilliams to Dee Ann Langel in August, 

1981. In September, 1982, Joan McWilliams found unsigned 

deeds dated November, 1981, with the McWilliams as grantors 

and Thomas and Dee Ann Langel as grantees of Tract A and B 

respectively. 

In the meantime, Joan McWilliams had been pursuing 

dissolution of marriage proceedings in Colorado, and had 

hired a Colorado attorney. The divorce action was commenced 

in January, 1983, in Colorado and a decree was obtained in 

April, 1985. The Colorado attorney attempted to locate 

property hidden by George McWilliams but was unable to 

satisfactorily accomplish this task. In June, 1984, the 

Colorado attorney arranged for Joan McWilliams to be 

represented by her present Montana attorneys who filed a 

complaint on August 27, 1984, seeking to nullify the 

purported McWilliams/Langel transfer of Tracts A and B. 

The court found that Joan McWilliams, having received 

$3,500 in support from George McWilliams ended up on welfare 

and she and her family sold all of her possessions including 

their clothes to survive. 

Dee Ann Langel, the purported transferee under the deed, 

lost the house at a foreclosure sale in February, 1986. Joan 

McWilliams lacked funds to redeem the property in the amount 

of $7,000, and did not have the ability to pay the balance of 

the loan. Later, Dee Ann Langel made arrangements with the 

bank to repurchase the house. 

Neither Thomas nor Dee Ann Langel ever dealt with Joan 

McWilliams concerning the property and she received no 

consideration from the transfer. 

Jean Clems, a notary public, operates a typing and 

copying service and performs secretarial services for persons 

in need thereof. She did not charge fees for her services in 
this transaction. George McWilliams was a customer and used 

her telephone answering service and other clerical services. 

The Colorado petition for dissolution ended in a decree 

on April 23, 1985. The proceedings included a separation 

agreement dated October 15, 1984. Distributed by the terms 

of the agreement were the household items in the possession 

of each party, motor vehicles and certain debts incurred by 

Joan McWilliams in Ft. Collins, Colorado. The agreement 

provided for maintenance, child support and delinquent 

support. The parties then released all rights, including 

property rights and claims which each might have against each 

other. The four page agreement was said to include all of 

the agreements made between the parties. The complaint in 

the present action, filed by the Montana attorneys was filed 

on August 27, 1984. The agreement made no mention of this 

action. 

Although George McWilliams has served as a third-party 

defendant in this action and was at one time represented by 

an attorney who later withdrew, he made no appearance 

personally or by counsel at the trial. 

Based on those findings of fact, the District Court 

concluded and accordingly entered judgment, declaring that 

Joan McWilliams was entitled to an undivided one-half 

interest in and to Tracts A and B; that Jean Clem had 

negligently completed the certificate of acknowledgment on 

the deed and had violated her duties as a notary public by 

certifying that she had personally taken the acknowledgment 

of Joan McFJilliams signature; that thereby Joan McWilliams 

suffered a cloud upon her title and lost the use of the 

property resulting in the sale of Tract A at a trustees sale; 

that she was forced to bring this action to set aside the 

conveyance and to clear her title and incurred attorney fees 

and costs of $17,000; that her equity in property as of 
August 26, 1981, was $49,494; that Stan Tenney had no 

equitable or legal interest in Tract B of the property; that 

Dee Ann Langel had unjustly benefited from occupancy and use 

of the residence in question and should be jointly and 

severally liable with Jean Clem for the sum of $19,950; that 

George McWilliams was liable to the plaintiff for the full 

rental loss as damages; that the Colorado decree of 

dissolution was not a bar to this action; that Joan 

McMiiliams was not barred by the statute of limitations, nor 

was she guilty of laches; that she was not barred in 

prosecuting her claim because she had dismissed as a 

defendant in this cause the bond insurer which on behalf of 

Jean Clem paid the sum of $1,000 to plaintiff; that Dee Ann 

Langel and Stan Tenney were not bona fide purchasers for 

value without notice because the August 26, 1981 deed was 

void as to Joan McWilliams; and that the statute, 5 

70-20-315, MCA, did not cure the defective acknowledgment in 

this case. 

Dee Ann Langel and Stan Tenney have appealed the 

District Court ' s judgment as have Jean Clem, Clem' s Word. 

Processing Center and Clem's Placement Service. 

The position of appellants, Dee Ann Langel and Stan 

Tenney on appeal is that the proximate cause of Joan's 

damages was the concurrent and joint conduct of the joint 

tortfeasors, the notary, Jean Clem, and the husband, George 

McWilliams. Except for such concurrent conduct, these 

appellants contend they would not have accepted a deed 

otherwise ordinary on its face. They contend that the deed 

should be valid as to Dee Ann Langel and to the extent that 

the deed is not validated, they should be indemnified by the 

guilty parties, Jean Clem and George McWilliams on the same 

basis as Langel and Tenney are liable to Joan McWilliams. 
The position of Jean Clem on appeal (the other 

appellants named Clem are business entities utilized by Jean 

Clem) is that the judgment against Clem is improper because 

Joan McWilliamsl signature on the deed was genuine; Clem 

recognized her signature and notarized it as she had done in 

the past "at plaintiff's request and approval;" that the 

mutual release and waiver clause in the settlement agreement 

in the dissolution proceedings in Colorado barred any further 

action on the matter; and that defendants Dee Ann Langel and 

Stan Tenney did not see the August 26, 1981 deed and did not 

rely on Clem's acknowledgment of plaintiff's signature in 

acquiring the property. Tangentially, Clem argues that Joan 

was negligent in signing the deed for her husband and that 

Joan's negligence is the sole proximate cause of her own 

damages and that the negligence of the notary public is not 

the proximate cause of Joan's damages. 

The first problem for us to determine is the liability, 

if any, of the notary public in this case for the improper 

acknowledgment contained in the deed. 

In Montana, a notary public is one of several officials 

authorized by law to take proof of the acknowledgment of an 

instrument. Section 1-5-101, MCA. By statute, the 

acknowledgment of an instrument must not be taken unless the 

officer taking it knows or has satisfactory evidence that the 

person making such acknowledgment is the individual described 

in and who executed the instrument. Section 1-5-201, MCA. 

The officer taking the acknowledgment must endorse on the 

instrument or attach thereto a certificate of acknowledgment 

substantially in the form prescribed by law. Sections 

1-5-202, -203, MCA. The acknowledgment of a married person 

to an instrument purported to be executed by such person must 

be taken in the same manner as that of any other person, § 

1-5-206, MCA, and the form of the certificate by a married 
person must be substantially in the form prescribed for other 

individuals in 5 1-5-203, MCA. Section 1-5-207, MCA. 

A notary public must give an official bond in the sum of 

$5,000 ($1,000 at the time of this incident, 5 1-5-405, MCA) 

and, for the official misconduct or neglect of a notary 

public, the notary and the sureties under the official bond 

are liable to the parties injured thereby for all damages 

sustained. Section 1-5-406, MCA. 

Although an unrecorded instrument is valid as between 

the parties and those who have notice thereof, S 70-21-102, 

MCA, before a deed transferring real property can be recorded 

with the county clerk and recorder in a Montana county, its 

execution must be acknowledged by the person executing, and 

the acknowledgment must be certified by an official 

authorized to do so. Section 70-21-203, MCA. 

Therefore, the statutory duty of the notary in taking an 

acknowledgment of an instrument is clear: he or she must 

know or have satisfactory evidence that the person making 

such acknowledgment is the individual who is described in and 

executed the instrument. A married person's acknowledgment 

to an instrument is to be taken the same as any other person. 

We agree with the Idaho Supreme Court as to the purpose of 

these statutes: 

We believe that the manifest intent of the 

legislature in requiring a notary public to execute 

a certificate of acknowledgment is to provide 

protection against the recording of false 

instruments. The sine qua non of this statutory 

requirement is the involvement of the notary, a 

public officer in a position of public trust. If 

the notary faithfully carries out his statutory 

duties, it makes little difference whether he 

remembers whether to fill in the blanks in the 

certificate. Similarly, if the notary conspires 

with the forger, or fails to require the personal 

appearance of the acknowledger, or is negligent in 

ascertaining the identity of the acknowledger, the 
statutory scheme is frustrated whether the form is 

completely filled in or not. 

Farm Bureau Finance Company, Inc. v. Carney (Idaho 1980), 605 

P.2d 509, 514. 

The District Court in this case did not find the notary 

public was fraudulent in making the certificate of 

acknowledgment. Rather, it found that the notary was 

negligent. It makes little difference here. The statement 

of the notary in the certificate that Joan McWilliams had 

personally appeared before the notary to acknowledge the 

instrument was false. Based on the false certificate of 

acknowledgment by the notary, the deed was entitled to be 

accepted for recording. The ensuing transactions relating to 

the real property, including the change in the trust 

indenture by the mortgagee, the transfer to Tenney, and the 

subsequent transfer of a portion of the real estate interest 

to the pension fund all were the direct and proximate result 

of the false certificate of acknowledgment which led to the 

recording. The false certificate of acknowledgment was a 

proximate cause of those subsequent transactions. To hold 

otherwise would be to frustrate the very purpose of the 

statutes requiring such certificates. 

True, Joan McWilliams may have been negligent in signing 

a blank deed for her husband. At most her negligence would 

be remote. It was the false certificate of acknowledgment of 

the notary which led to the recording of the deed and which 

gave the deed purported life for the subsequent transactions. 

Two prior cases by this Court must be explained. In 

Mahoney v. Dixon (1904), 31 Mont. 107, 77 P. 519, Mahoney 

sued Dixon, a notary public, on the grounds that Dixon had 

falsely certified to the execution of a mortgage by a person 

who had not appeared before the notary and that Mahoney had 

lent $1,800 on the strength of the security under the 
mortgage. The District Court instructed the jury that if the 

notary violated an express provision of the statute in the 

performance of an official act done by him as a notary public 

that he and his sureties were liable for the damage suffered 

by the plaintiff. The Montana Court reversed because the 

instruction did not tie the liability of the notary public to 

damages proximately caused by his official misconduct. 

In Ellis v. Hale (1920), 58 Mont. 181, 194 P. 155, a 

similar situation occurred. Ellis, a real estate loan agent, 

had made a loan upon a mortgage. The acknowledgment of said 

instrument had been forged by a notary public. There the 

court held that an action against the sureties on the 

official bond of the notary could not succeed in the absence 

of evidence showing that the real estate agent loaned the 

money relying on the forged acknowledgment. 

In this case, Clem relies on the Ellis and Mahoney cases 

as authority that recovery cannot be made against the notary 

public unless one relied on the false statements in the 

certificate. However, the factual bases for Ellis and 

Mahoney are completely different from this case. Joan 

McWilliams did not lose her property because she relied on a 

false certificate; rather, she was divested of her property 

by virtue of a false certificate. Ellis and Mahoney are not 

applicable here. 

An issue raised by Clem, Langel and Tenney is whether 

the Colorado decree of dissolution is res judicata to this 

action. An action is barred by res judicata when the 

following criteria are met: 

1) The parties or their privies are the same; 

2) The subject matter of the action is the same; 

3) The issues are the same, and relate to the same 

subject matter; and 
4) The capacities of the persons are the same in 

reference to the subject matter and to the issues between 

them. 

Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 P.2d 

929, 931. 

Clearly, none of these factors are met in the instant 

action. The Colorado action had as parties Joan versus 

George McWilliams; this action has Joan versus Clem, Langel 

and Tenney. The subject matter of the Colorado action was a 

dissolution of marriage; this action is to collect damages 

for negligence and to set aside a void deed. The issues in 

the Colorado action were a determination of child support, 

maintenance and division of marital property (in which the 

house was not listed); the issues in this case are the duty 

and breach of duty of a notary public, and title to property 

in Bozeman, Montana. Since the parties, subject matter and 

issues are different in each action, the capacities of the 

parties in relation to those areas cannot be similar. The 

Colorado decree of dissolution is not a bar to the action in 

Montana for negligence, quiet title and loss of use of real 

property. 

Joan's suit is not barred by the statute of limitations 

or laches. The negligent action occurred August 26, 1981, 

when the warranty deed was improperly notarized and 

transferred to Langel. The statute of limitations in an 

action for negligence is three years. Section 27-2-204 (1) , 

MCA. The statute of limitations begins to run when the cause 

of action accrues or when the negligence is discovered. 

Masse v. Dept. of Highways (1983), 204 Mont. 146, 151, 664 

P.2d 890, 892. In this case Joan's complaint was filed 

August 27, 1984, three years and one day after the deed was 

improperly notarized. However, August 26, 1984, was a 

Sunday, so the final day for the action to be filed was 
Monday, August 27. Sections 1-1-216 (1 a , 1-1-306 and 

1-1-307, MCA. Further, Joan did not discover the existence 

of the void deed until August, or September, 1982, when a 

friend informed her the house had been sold. We hold that 

Joan filed her complaint within the time allowed for filing 

an action in negligence. 

Laches is an equitable defense applicable when the 

complainant has delayed in the assertion of a right for such 

time as would now make assertion of the right inequitable. 

Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 

600, 602. The record does not indicate Joan took unnecessary 

delay in asserting her right to her property. She was not 

aware the property was transferred until 1982, at which time 

she began searching for the documents necessary to her case. 

When she found the warranty deed, she immediately confronted 

both Clem and Langels with the forgery. As we noted above, 

her complaint in this action was filed within the applicable 

time for statute of limitations. We hold the doctrine of 

laches does not apply. 

Appellants have also argued that S 70-20-315, MCA, 

Montana's curative statute for validation of unacknowledged 

deeds, validates the forged warranty deed. However, that 

statute applies to deeds executed by grantors and signed in 

due form, deeds which are otherwise valid except for the lack 

of an acknowledgment or other witness thereto. The statute 

is not intended to validate a void deed. As we have stated 

in the context of tax deeds, "a curative statute cannot 

breathe life and validity into . . . void . . . deeds." 

Lowery v. Garfield County (1949), 122 Mont. 571, 583, 208 

P.2d 478, 485. Section 70-20-315, MCA, does not validate the 

August 26, 1981, warranty deed as to Joan since she, as one 

of the necessary grantors, never made the grant. 
Clem's fifth issue is whether the payment of the $1,000 

bond fully satisfies Joan for her damages against Clem. On 

or about October 25, 1984, Joan entered into an agreement 

with Reliance Insurance Company in which she released all her 

claims against the company upon its payment to her of a 

$1,000 penal bond. On November 14, 1984, Joan stipulated 

that all her claims against Reliance Insurance Company had 

been fully compromised and settled, and the District Court 

dismissed the company from the action with prejudice. 

Nothing in the agreement, stipulation or order evidences the 

intention to release or compromise Joan's claims against 

Clem. Reliance simply performed its bond contract and it 

does not appear that the release document "'is intended to 

release the other tortfeasors, or the payment is full 

compensation, or the release expressly so provides.'" 

Kussler v. Burlington Northern, Inc. (1980), 186 Mont. 82, 

88, 606 P.2d 520, 524 (quoting Adams v. Dion (Ariz. 1973), 

509 P.2d 201, 203). However, the $1,000 payment should be 

deducted from the total amount of damages owed by Clem to 

Joan. State ex rel. Deere & Co. v. District Court (Mont. 

1986), 730 P.2d 396, 405, 43 St.Rep. 2270, 2279. We remand 

this issue to the District Court for an amendment to the 

findings of fact, conclusions of law, and judgment deducting 

$1,000 from the amount of damages for loss of use owed to 

Joan. 

The next issue raised by defendants Langel and Tenney is 

whether the District Court erred in denying them relief under 

S 70-20-404, MCA. That statute states that the rights to 

real property of a purchaser in good faith and for value are 

not to be impaired when a conveyance of property is made with 

intent to defraud prior or subsequent purchasers or 

encumbrances. This is not the situation in this case. Here, 

the fraud was perpetrated by one grantor upon the other. The 
deed was conveyed to Langel without the execution and 

acknowledgement of one of the married grantors, and therefore 

the deed is void as to her. Section 70-20-101 and -106, MCA. 

The District Court was correct in finding that 5 70-20-404, 

MCA, was inapplicable to the facts of the case. 

Another issue raised by Langel and Tenney is whether the 

District Court erred in failing to rule on their cross-claim 

for indemnification from Clem. The District Court concluded 

Dee Ann Langel had unjustly benefited from the occupancy and 

use of the Gallatin Gateway home, and that Langel was liable 

in the amount of $19,950, such liability being joint and 

several with Clem. Langel argues that since Clem was found 

negligent and she, Langel, was not found negligent, she 

should be fully indemnified by Clem. 

In Consolidated Freightways Corp. v. Osier (19791, 185 

Mont. 439, 447, 605 P.2d 1076, 1081, we defined "indemnity" 

as the principle which shifted "the entire loss from one 

party compelled to bear it to the shoulders of another who 

should bear it instead." In this instance, Joan was awarded 

$19,950 in damages for her loss of use of the house and 

property. Langel had the sole use of the house for over four 

years without paying Joan any consideration for her interest 

in it. Joan had a present interest in the house, since the 

purported transfer of her interest to the Langels was not 

valid. Langel and Tenney did possess the house and real 

estate and thus owe Joan for Joan's loss of use. We hold 

Langel and Tenney are not entitled to indemnification from 

Clem. 

Finally, Langel and Tenney argue that it was error for 

the District Court to fail to grant them a default judgment 

against and indemnification from George McWilliams. George 

was not present at trial and his counsel had been given leave 

to withdraw from the case. However, he had been given notice 
of the trial and had informed one of the attorneys of record 

that he did not plan to attend. At the opening of the trial 

and at a later hearing, the attorney for Langel and Tenney 

requested that a default judgment be entered against George 

in their favor. The motion was never ruled on by the 

District Court. 

When an attorney is removed or ceases to act as such, 

the party to the action for whom the attorney was acting 

must, before any further proceedings are had against that 

party, be required by the adverse party, upon written notice, 

to appoint another attorney or appear in person. Section 

37-61-405, MCA. The record does not show that George 

McWilliams was served with such a notice, and therefore the 

case against McWilliams is stayed by virtue of S 37-61-405, 

MCA. Judgment against him cannot be granted until the proper 

notice is served. 

Remanded to the District court for amendment of the 

judgment as herein provided. As so amended, the judgment is 

affirmed. 

We Concur: , //f 

jLjdh\- 42 %? 

Justice