No. 14974 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, Acting by and through 

the Department of Highways of the State of 

Montana, 

Plaintiff and Respondent, 

THOMAS HELEHAN, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D.Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniels and Mizner, Deer Lodge, Montana 

For Respondent: 

Daniel J. Sullivan, Highway Legal Department, Helena, 

Montana 

- . 7c$] 

Filed: 

Submitted on briefs: January 16, 1980 

Tr , " p- Decided : ' 

- 1380 - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment of the District Court 

of the Second Judicial District, in and for the County of 

Silver BOW, in an eminent domain proceeding. 

In July 1965, the State of Montana through the Department of Highways sought to condemn part of a patented 

mining claim outside the City of Butte, in Silver Bow County. 

Defendant Thomas Helehan owned an undivided one-eighth (1/8) 

interest in the mining claim. Eleven years later a commission 

awarded the appellant Helehan the sum of $30,886 for his 

interest; and on December 15, 1976, Helehan and his attorney, 

Joseph Engle 111, withdrew the sum of $23,194.50 by warrant 

made payable to both of them by the Silver Bow County Clerk 

of Court. Engle took one-third (1/3) of that amount as his 

attorney fee and Helehan took the balance. Thereafter, 

differences of opinion arose between Engle and the appellant, 

and the attorney-client relationship was severed. New 

counsel was obtained by Helehan and on May 3, 1979, a jury 

awarded Helehan the sum of $5,000 for his interest in the 

claim. Thereafter, at a hearing in District Court, appellant 

Helehan contended that the judgment decreeing that the 

excess monies withdrawn could only be collected in a separate 

action and that Mr. Engle was an indispensable party to such 

action. The District Court awarded judgment to Helehan but 

deducted what it calculated to be the balance due the State 

of Montana. That judgment found that Helehan was indebted 

to the State of Montana for $15,680.88, plus interest. It 

is from that judgment and a denial of the motion to alter or 

amend said judgment that Helehan appeals. 
Two issues are presented on appeal: 

1. Did the District Court properly award the State of 

Montana a money judgment in absence of a hearing on the 

merits and in the absence of an indispensable party? 

2. Did the District Court properly credit interest due 

the defendant? 

In order to answer the first issue properly, the respondent suggests, and we believe quite properly so, the issue 

should be restated in the following manner: Did the District 

Court properly issue a judgment in this case, providing that 

the excess withdrawal of the appellant should be returned to 

the State with interest? 

It is the appellant's argument that section 70-30-311, 

MCA provides that in order to recover any excess amounts in 

a matter of this type, there should be a separate legal 

action by the State. Appellant cites no authority for this 

position other than the statute, and fails to recognize that 

this very problem was considered by this Court in The State 

of Montana v. Churchwell (1965), 146 Mont. 52, 403 P.2d 751. 

In that case, the Court considered the deposit of the 75% of 

a commission award as provided by Chapter 234 of the Laws of 

1961 and noted that: 

"A careful reading of the last amendatory 

section clearly shows that the district 

court can limit the draw-down to 75 per 

cent unless sureties are provided for the 

amount over 75 per cent. This provision 

is to protect the State where more money 

has been withdrawn than is awarded by the 

jury, and with all parties to the litigation 

before the court, even though an action is 

mentioned in the statute there could appear to be no reason under this amendment 

that should restrain or prohibit the district court in finally determining the 

issue." Churchwell, supra, at 62, 403 P.2d 

at 756. 

The District Court recognized the authority cited in 
churchwell and ruled accordingly. Thereafter, the appellant 

created a side-issue by contending that appellant's attorney 

Engle was paid some of the money withdrawn, therefore, the 

attorney, by reason of such payment, became a party to such 

action and that the State must look to him to recover that 

money paid to the attorney by bringing a separate action 

against him. Appellant cites no authority to support this 

contention that Engle was a party to the condemnation action. 

No facts were presented that the appellant was not the sole 

party to the action at the time of the trial. As would 

appear from the fact situation, the payment by the appellant 

to Engle must have been made pursuant to some private agreement between counsel and appellant. 

The payment of some $7,000 by the appellant to his 

attorney clearly is not a payment of attorney's fees as 

"necessary expenses of litigation" pursuant to sections 70- 

30-305 and 70-30-306, MCA. Payment to Engle was made after 

the condemnation award was deposited, but before jury trial. 

The court file indicates that this payment was made after 

the commission award had been appealled. The award of 

attorney's fees in a condemnation case is only authorized at 

the conclusion of the litigation. It is only authorized 

after notice and a hearing before the District Court and if 

the landowner prevails in the litigation. In addition, the 

amount to be paid is not decided by the defendant in a court 

condemnation action, but by the District Court. 

Here it is obvious that the payment to Engle did not 

make him a party to this action, nor is there any authority 

cited to us that he became an indispensable party. 

The judgment of the District Court is hereby affirmed. 
We concur. 

%&~t~~ Chief Justice