No. 13724 

IN THE SUPREPIE COURT OF THE STATE OF MONTANA 

FRANK K. NILES, 

Plaintiff and Appellant, 

-vsCARBON COUNTY et al., 

Defendants and 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 : q[i~ 1 - cr -- 

a -. is, i 

Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This action involves defendant's motion to dismiss plaintiff'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. Plaintiff named Mike 

M. Vukelich, Trustee, and others as defendants. The action was 

later dismissed against all defendants save Vukelich. 

In a January 6, 1977 hearing on motions for summary 

judgment, the district court found that Vukelich had properly 

redeemed the property. It granted summary judgment in Vukelich'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 (representing taxes, 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 issue was moot because 

plaintiff and his attorneys had accepted payment of the redemption 

money. Defendant accompanied 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 attorneys had been 

cashed and that no attempt had been made to tender the proceeds 

into court. Oral argument was heard on plaintiff's appeal and 
defendant's cross-appeal; briefs were requested on the motion 

to dismiss plaintiff's appeal. 

Rule 7 (a) , M. R.App. Civ.P. , states: 

"Upon entry 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 its discretion may grant said 

stay for such period of time and under such conditions as the court deems proper * * * Upon service 

of notice of appeal, if the court has made no such 

order * * * [the appellant] may present to the district court and secure its approval of a supersedeas bond * * *." 

This Court in Gallatin Trust & Savings Bank v. Henke, 154 Mont. 

170, 177, 461 P.2d 448, held: 

" * * * a supersedeas bond to preserve the rights 

of the unsuccessful party may be required and failure to post it makes the rights of the parties 

subject to execution, subsequent satisfaction of 

the judgment and possible mootness so far as appeals 

are concerned. * * * 

" * * * Rule 7(a) clearly provides the only methods 

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: 

" * * * 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, 101 Mont. 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: 

" * * * 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, 101 Mont. 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 to 
the property 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 jurisdictions have. McKain v. Mullen, 65 W.Va. 

558, 64 S.E. 829. In McKain, Mullen purchased real estate at a 

tax sale for which he later received a tax deed. McRain sought 

to set aside Mullen'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. The West 

Virginia court reasoned: 

"The money he [Mullen] accepted represented what he 

had paid for the title declared void. It was 

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 

decree made upon the equities arising between the 

parties. That portion of the decree was inseparably 

connected with the order annulling the tax title. 

And so inseparably was 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 not what 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 decree belonging to the other party. He cannot have 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. * * *." 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 

against him. "'Any act on the part of [an appellant] by which 

he impliedly recognizes the validity of a judgment against him 

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 (among other things) defendant's 

" * * * costs and disbursements herein expended" and for " * * * 

such other and further relief as the Court may deem proper." 

On March 3, 1975, Vukelich's attorney filed an amended answer 

which alleged a separate defense. his amended answer did not 

contain a pleading for reasonable attorney 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 "her costs 

of suit amounting to $15.00." Defendant cross-appealed claiming 

she was entitled to a reasonable attorney fee. 

Rule 54(c), M.R.Civ.P., provides in part: 

" * * * Except as to a party against whom a 

judgment is entered by default, every final 

judgment shall grant the relief to which the 

party in whose 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. , 

P.2d , 34 St.Rep. 753, (1977). In Smith, the plaintiffs ' 

only prayer was for forfeiture of a contract. Although the facts 

at trial showed that the plaintiffs were not entitled to forfeiture, they did show plaintiffs 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 applicable here. Section 84-4167, R.C.M. 
1947, provides that in an action for a tax deed "The court 

shall allow the successful party his costs to be fixed by the 

court including a reasonable attorney's fee in all cases where 

the county is not the applicant." (Emphasis added.) Defendant 

was the successful party. Even though defendant had not prayed 

for a reasonable attorney fee, the district court under Rule 54(c), 

M.R.Civ.P., should have allowed her one. The cause must therefore 

be remanded to determine a reasonable attorney fee in accordance 

with the guidelines enumerated in Crncevich v. Georgetown Rec. 

Corp., 168 Mont. 113, 541 P.2d 56. 

Plaintiff contends he 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 interest he had previously paid. Plaintiff's contention is 

without merit. The statutes under which he brought suit were 

ones to obtain a tax deed. Sections 84-4162 to 4170, R.C.M. 

1947. The "successful party" designated in section 84-4167, the 

statute providing for attorney fees, is the party who is successful in obtaining the tax deed. This plaintiff was not. 

Finally, defendant claims thatshe should be awarded 

damages for a frivolous appeal by plaintiff. Rule 32, M.R.App.Civ.P., 

states: 

"If the Supreme Court is satisfied from the 

record and the presentation of the appeal, 

that the same was taken without substantial or 

reasonable grounds, but apparently for purposes 

of delay, only, such damages may be assessed on 

determination thereof as under the circumstances 

are deemed proper." 

The Court does not feel that plaintiff'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-appeal with instructions 
to 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 /