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No. 00-085 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 135 

RED LODGING and STEVE BURKE, 

Plaintiffs, Counter-Defendants 

and Respondents, 

v.

BARBARA MILLER, 

Defendant, Counter-Claimant

and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

Honorable G. Todd Baugh, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Robert L. Stephens, Jr., Southside Law Center, Billings, Montana 

For Respondents:

Jeffrey A. Weldon; Moulton, Bellingham, Longo and Mather,

Billings, Montana 

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Submitted on Briefs: August 31, 2000 

Decided: August 1, 2001

Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 Red Lodging and Steve Burke (collectively, Red Lodging) brought suit against Barbara 

Miller in the Carbon County Justice Court to recover money owed on a residential lease. 

Miller appealed the Justice Court judgment against her to the Thirteenth Judicial District 

Court, Carbon County, which dismissed the appeal. Miller appeals and we affirm.

¶2 The issue is whether the District Court erred in dismissing Miller's appeal from the 

Justice Court.

¶3 On June 4, 1997, Miller entered into a one-year, $600 per month residential lease for a 

home in Red Lodge, Montana, with Red Lodging, operated by Steve Burke, which acted 

as agent for the landlord. In November of 1997, however, Miller contacted Red Lodging 

and advised that she wished to relocate to a larger home. On December 3, 1997, Red 

Lodging and Miller entered into a written lease agreement for another house in Red 

Lodge. They verbally agreed that Red Lodging would use its best efforts to secure an 

alternative tenant for the house Miller vacated and that Miller would help by advertising 

the house for rent in the local newspaper and showing the house to prospective tenants. 

She was then to refer any prospective tenants to Red Lodging.

¶4 Although Miller referred prospective tenants to Red Lodging, none qualified through 

Red Lodging's application process to lease the vacated house. On March 4, 1998, Miller 

notified Red Lodging that she would no longer pay the rent on the vacated house, and she 

did not make the March payment. Red Lodging filed a complaint against Miller in Justice 

Court seeking four months' rent for the balance of the lease and costs. Miller answered the 

complaint and filed a counterclaim seeking reimbursement for rent she had paid since 

vacating the house and other damages.

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¶5 Within a month after Red Lodging filed its complaint, it entered into a lease agreement 

with tenants who took possession of the house Miller had vacated. Red Lodging kept 

Miller's $600 damage deposit as rent for the month of March and dismissed its Justice 

Court complaint. The Justice Court then held a nonjury trial on Miller's counterclaim, 

found in favor of Red Lodging, and awarded attorney fees and costs totaling $6,281.90.

¶6 Miller filed a notice of appeal to District Court. She also filed an undertaking on appeal 

in which she and Jerett Miller pledged money and property in the sum of $12,563.80 and 

promised to pay, on her behalf, the amount appealed and all costs if the appeal were 

withdrawn or dismissed, or the amount of any judgment and all costs that might be 

recovered against her in the action in the District Court. 

¶7 Red Lodging moved to dismiss the appeal on grounds Miller had neither filed an 

undertaking on appeal which met the requirements of § 25-33-201, MCA, nor deposited 

money in lieu of an undertaking pursuant to § 25-33-205, MCA. Miller responded by 

asking the court to order Red Lodging to return the money it had by then obtained from 

executing on its Justice Court judgment and deposit that money with the Clerk of the 

District Court. Miller proposed to then tender to the District Court an additional $300 to 

meet the requirements of § 25-33-205, MCA. Under this latter "judgment monies plus 

$300" approach, she argued that her appeal would be perfected notwithstanding having 

acted as her own surety. The District Court granted Red Lodging's motion and dismissed 

Miller's appeal.

¶8 Did the District Court err in dismissing Miller's appeal from the Justice Court?

¶9 The District Court's order dismissing Miller's appeal from the Justice Court did not set 

forth the court's rationale. It stated only that, "[u]pon motion of [Red Lodging] and for 

good cause shown," the appeal from the Justice Court was dismissed. Miller's first 

contentions on appeal are that dismissal of her appeal was improper because she filed a 

valid undertaking on appeal and Red Lodging's objections to it were untimely. 

¶10 The procedure for appeals from justice court to district court is set out at §§ 25-33-101 

through -306, MCA. Section 25-33-201, MCA, provides, in relevant part:

(1) Except as provided in subsection (4) [an exception for indigent appellants], 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 

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of the judgment, including costs, when the judgment is for the payment of money. 

¶11 Red Lodging contends that Miller's undertaking on appeal was deficient and the 

District Court was without jurisdiction to consider the appeal because Miller's undertaking 

did not meet the "two or more sureties" requirement of § 25-33-201(1), MCA. Red 

Lodging is correct.

¶12 A surety is "one who, at the request of another and for the purpose of securing to him 

a benefit, becomes responsible for the performance by the latter of some act in favor of a 

third person or hypothecates property as security therefor." Section 28-11-401, MCA. The 

document filed by Miller, entitled "Undertaking on Appeal," does not meet the statutory 

requirements of an undertaking because one of the two "sureties" is Miller herself. Under 

the § 25-11-401, MCA, definition of a surety, one cannot act as a surety for oneself. Thus, 

Jerett Miller is the only valid surety named in Miller's document. A "singular signature 

violates 25-33-201, MCA, which clearly requires two or more sureties." Adams v. 

Crismore (1984), 211 Mont. 245, 248, 683 P.2d 497, 499. Consequently, we conclude 

Miller's undertaking was deficient under § 25-33-201(1), MCA. 

¶13 Miller counters that Red Lodging failed to timely object to her undertaking on appeal 

under § 25-33-203, MCA, which provides that "[t]he adverse party may except to the 

sufficiency of the sureties within 5 days after the filing of the undertaking[.]" However, 

the statute on which Miller relies does not apply to the situation before us.

¶14 By its own terms and as interpreted by this Court, § 25-33-203, MCA, relates to the 

financial sufficiency of sureties. An exception to the "sufficiency of the sureties" refers to 

their "solvency or pecuniary sufficiency" rather than to their qualifications to act as 

sureties. Whitcomb v. Beyerlein (1929), 84 Mont. 470, 473, 276 P. 430, 431 (citation 

omitted). Here, Red Lodging's objection to Miller's undertaking challenged her 

qualifications to act as a surety for herself, not the monetary sufficiency of the 

undertaking. As a result, we conclude Red Lodging's objection was not required within 

five days of Miller's filing of her undertaking and, therefore, the objection was timely.

¶15 Miller points out, however, that § 25-33-205, MCA, provides an alternative to filing 

an undertaking on appeal whereby the appellant deposits with the justice court an amount 

of money equal to the amount of the judgment plus $300. Pursuant to § 25-33-205, MCA, 

the justice court then transmits the money to the clerk of district court. Miller argues that 

because Red Lodging successfully executed on its judgment, she in effect "deposited" that 

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amount. She contends that her request for return of that amount to the District Court, 

together with her offer to pay another $300, constituted substantial compliance with § 25-

33-205, MCA. 

¶16 Section 25-33-205, MCA, explicitly requires that the amount of the judgment plus 

$300 be deposited with the justice court. Miller's proposal that monies Red Lodging 

obtained via execution be returned in the future and that she add $300 to that amount in 

the future does not constitute a deposit. Moreover, an undertaking on appeal-for which the 

deposit is a substitute-must be filed within ten days after the notice of appeal. Section 25-

33-208, MCA. Miller's proposed "substantial compliance," made at the December 10, 

1999 hearing, was well beyond the ten days allowed after her August 2, 1999 notice of 

appeal from the Justice Court. Miller clearly did not fulfill the requirements of § 25-33-

205, MCA.

¶17 Finally, Miller asserts the undertaking requirement violates her right to equal 

protection. She relies on Merchants Association v. Conger (1979), 185 Mont. 552, 606 

P.2d 125, in support of this position, but her reliance is misplaced. 

¶18 In Merchants, Conger appealed to this Court from a district court's denial of her 

request for permission to appeal a justice court judgment without prepaying costs. She 

raised several constitutional issues, including whether the statutory undertaking 

requirement violated the Equal Protection Clause of the Fourteenth Amendment to the 

United States Constitution by barring an indigent defendant access to the district court. 

Merchants, 185 Mont. at 553-54, 606 P.2d at126. We addressed only the equal protection 

issue, determining that the existing statutory undertaking requirement, as applied to 

Conger, violated her equal protection rights. Merchants, 185 Mont. at 554-55, 606 P.2d at 

126. 

¶19 After our decision in Merchants, the Legislature added subsection (4) to § 25-33-201, 

MCA, which requires a district court to waive the undertaking requirement upon a 

determination the appealing party is indigent. See 1991 Mont. Laws 63. Thus the basis for 

Merchants's equal protection decision has been superseded by the legislative action. 

Moreover, Miller has not alleged in the present case that she is indigent or taken any other 

steps to avail herself of § 25-33-201(4), MCA. For these reasons, Merchants has no 

application here.

¶20 Affirmed. 

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/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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