No. 13724 INTHE SUPREPIE COURT OF THE STATE OF MONTANA

FRANK K. NILES, Plaintiff and Appellant,

-vsCARBON COUNTY et al., Defendantsand Respondents, and MIKE M. VUKELICH, Defendant, Respondent and Cross-Appellant

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presidinq. Counsel of Record: For Appellant: Joseph E. Mudd argued, Bridger,Montana Reno and Dolve, Billings,Montana

For Respondents: Ayers and Alterowitz, Red Lodge,Montana Michael Alterowitz argued, Red Lodge, Montana

Submitted: June 10, 1977 Decided:

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ClerkMr. JusticeFrank I. Haswell delivered the Opinion of the Court. This action involves defendant's motion to dismissplaintiff's appeal from a summary judgment in defendant's favor. On July 7, 1971,Carbon County assigned to plaintiff, Frank K. Niles, a tax sale certificate for certain real property which had previously been struck off to the county. On August 14, 1973,plaintiff filed action to obtain a tax deed from the county and to quiet title to the property. Plaintiffnamed Mike M. Vukelich, Trustee,and others as defendants. The actionwas later dismissed against all defendants saveVukelich. In a January 6, 1977hearing onmotions for summary judgment, the district court found thatVukelich had properly redeemed the property. It granted summary judgment inVukelich's favor,directing the Carbon County treasurer to issue a certificate of redemption to Lila K. Vukelich, successor trustee to Mike M. Vukelich, and directing the clerk of district court to pay plaintiff the money (representingtaxes,penalty and interest) which Vukelich had paid into court. On January 12, 1977,plaintiff's cocounsel instructed the clerk as to the desired method of payment. The clerk issued two warrants both of which were subsequently cashed. On February 14, 1977,plaintiff filed notice of appeal. Lila K. Vukelich filed notice of cross-appeal. Briefs were filed and argument set for Friday, June 10, 1977. On June 8, 1977,defendant filed a motion for an order dismissing plaintiff's appeal claiming the issuewas moot because plaintiff and his attorneyshad accepted payment of the redemption money. Defendantaccompanied her motion with an affidavit of the clerk of the district court for Carbon County stating that the warrants issued to plaintiff and plaintiff's attorneyshad been cashed and that no attempt had been made to tender the proceeds into court. Oral argumentwas heard on plaintiff's appeal anddefendant's cross-appeal; briefswere requested on the motion to dismissplaintiff's appeal. Rule 7(a)

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## , states: "Uponentry of a judgment or order a party may apply to the district court on notice or ex parte for a stay of the execution of the judgment or order. The court in itsdiscretion may grant said stay for suchperiod of time and under such conditions as the court deemsproper 

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## * Upon service of notice of appeal, if the court has made no such order 

## * * * [theappellant]may present to the district court and secure its approval of a supersedeas bond 

## * * *." This Court in Gallatin Trust & Savings Bank v. Henke, 154Mont. 170, 177, 461 P.2d 448,held: 

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## * * * a supersedeasbond to preserve the rights of the unsuccessfulparty may be required and failure to post itmakes the rights of the parties subject to execution, subsequent satisfaction

### of the judgment and possible mootness so far as appeals are concerned. 

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## * Rule 7(a) clearly provides the onlymethods of staying judgments." 154 Mont. 177 After entry of judgment against him, plaintiff neither applied for a stay of execution nor filed a supersedeas bond; instead, he accepted and cashed the warrants issued to him. The general rule is: 

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## * * * the right to accept the fruits of a judgment and at the same time to prosecute an appeal from it are not concurrent; on the contrary, they are wholly inconsistent rights. The election of one necessarily excludes the enjoyment of the other." Peck v. Bersanti, 101Mont. 6, 8, 52 P.2d 168, 169; In re Black's Estate, 32 Mont. 51, 53, 79 P. 554. This rule is subject to the exception that: 

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## * * * where the reversal of a judgment cannot possibly affect an appellant's right to the benefit accepted under a judgment, then appeal may be taken and will be sustained despite the fact that the appellant has sought and secured such benefit." Peck v. Bersanti, 101Mont. 6, 9, 52 P.2d 168; In re Black's Estate, 32 Mont. 51, 79 P.2d 554. Plaintiff's case does not come within the exception to the general rule. Plaintiff is entitled either to a tax deed totheproperty or to a sum representing the delinquent taxes and penalties he had paid plus interest. He may not have both. Although this Court has not faced this factual situation before, other jurisdictionshave. McKain v. Mullen, 65

### W.Va. 558, 64 S.E. 829. InMcKain, Mullen purchased real estate at a tax sale forwhich he later received a tax deed. McRain sought to set asideMullen's deed. The court entered a decree annulling the deed and directing the clerk to pay Mullen the amount necessary to reimburse him. Mullen accepted this amount, but later appealed. McKain moved to dismiss the appeal. TheWest Virginia court reasoned: "Themoney he [Mullen] accepted representedwhat he had paid for the title declared void. Itwas tendered him by the decree as essential to the action of the court in setting aside the tax deed. Its tender to him was a substantial portion of the decreemade upon the equities arising between the parties. Thatportion of the decreewas inseparably connectedwith the order annulling the tax title. And so inseparablywas it connected therewith that it could not be recognized by Mullen without his recognizing the decree annulling his tax deed. As the decree stood, it gave him benefit. True, it gave him notwhat he had sought in the litigation, but it gave him the fruits of the controversy that the court in equity and law deemed to be his. He voluntarily accepted these fruits,yet he seeks by appeal to destroy the rights under the decreebelonging to the other party. He cannothave the one and deny the other. The acceptance of the taxes tendered and deposited was a recognition of McKain's title, and it is inconsistent with the prosecution of this appeal which attacks the title. 

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## *." McKain, 64 S.E. 830. We find the reasoning of McKain applicable to the present case. Niles' acceptance without reservation of what the judgment gave him was implied recognition of the validity of the judgment againsthim. "'Any act on the part of [anappellant] by which he impliedly recognizes the validity of a judgment againsthim operates as a waiver of his right to appeal therefrom

## * * *I". McKain, 64 S.E. 831. See also: Freeman, 2 Law of Judgments,In his cross-appeal defendant claims a reasonable attorney fee and seeks damages under Rule 32,M.R.App.Civ.P., for a frivolous appeal by plaintiff. Vukelich's original answer, filed October 10, 1973, did not contain a pleading for reasonable attorney fees,but it did include a prayer for (amongother things) defendant's 

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## * * * costs and disbursementsherein expended" and for 

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## * * * such other and further relief as the Courtmay deem proper." On March 3, 1975, Vukelich's attorney filed an amended answer which alleged a separatedefense. 

### his amended answer did not contain a pleading for reasonableattorney fees nor did it contain any prayer. On December 29, 1976,~ukelich's new attorney moved for an order granting defendant leave to file a second amended answer "to include a prayer for reasonable attorney fees." The district court file reflects the district court took no action

on this motion. On January 6, 1977, the district court granted summary judgment in defendant's favor allowing defendant "hercosts of suit amounting to $15.00." Defendant cross-appealed claiming shewas entitled to a reasonableattorney fee. Rule 54(c), M.R.Civ.P., provides in part: 

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## * * Except as to a party againstwhom a judgment is entered by default, every final judgment shall grant the relief to which the party inwhose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." We recently considered this rule in Smith v. Zepp, Mont. 

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## , 34 St.Rep. 753, (1977). In Smith, the plaintiffs

### ' only prayer was for forfeitureof a contract. Although the facts at trial showed that the plaintiffs were not entitled to forfeiture, they did showplaintiffs were entitled to a damage award. We held that Rule 54(c) required such an award even though the plaintiffs had not prayed for it. The same rule 

### is applicablehere. Section 84-4167,R.C.M.1947,provides that in an action for a tax deed "The court shall allow the successfulparty his costs to be fixed by the court including a reasonable attorney's fee in all cases where the county is not the applicant." (Emphasisadded.) Defendant

was the successfulparty. Even though defendanthad not prayed for a reasonable attorney fee, the district court under Rule 54(c), M.R.Civ.P., should have allowed her one. The causemust therefore be remanded to determine a reasonable attorney fee in accordance with the guidelines enumerated in Crncevich v. Georgetown Rec. Corp., 168Mont. 113, 541 P.2d 56. Plaintiff contendshe too should be allowed a reasonable attorney fee as a "successful party" because,while he did not obtain a tax deed, he was reimbursed for the taxes, penalties, and interesthe had previously paid. Plaintiff's contention is withoutmerit. The statutes under which he brought suit were

ones to obtain a tax deed. Sections 84-4162 to 4170,R.C.M. 1947. The "successfulparty" designated in section 84-4167, the statuteproviding for attorney fees, is the party who is successful in obtaining the tax deed. Thisplaintiff was not. Finally,defendant claims thatshe should be awarded damages for a frivolous appeal by plaintiff. Rule 32,M.R.App.Civ.P., states: "Ifthe Supreme Court is satisfied from the record and the presentation of the appeal, that the samewas takenwithout substantial or reasonable grounds, but apparently forpurposes of delay, only, such damagesmay be assessed on determination thereof as under the circumstances are deemed proper." The Court does not feel thatplaintiff's appeal was without substantial or reasonable grounds and for purposes of delay only. No damages shall therefore be awarded to defendant. Plaintiff's appeal is dismissed. The cause is remanded to the district court on defendant's cross-appealwith instructionsto hold a hearing to fix reasonable attorney fees for the services of defendant's attorneys in the district court to be included in the judgment.

Justice

Chief Justice 

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