### 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. JusticeJohn Conway Harrison delivered the Opinion of the Court. This isan appeal from a judgment of the DistrictCourt of the Second Judicial District, inand for the County of Silver BOW, inan eminent domain proceeding. InJuly 1965, the Stateof 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 inthe 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 toboth of them by the Silver Bow County Clerk of Court. Engle took one-third (1/3) of that amount ashis attorney fee and Helehan took the balance. Thereafter, differences of opinion arose between Engle and the appellant, and the attorney-client relationshipwas 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 inDistrictCourt, appellant Helehan contended that the judgment decreeing that the

excess monies withdrawn could only be collected in a separate action and thatMr. Engle was an indispensable party to such action. The DistrictCourt awarded judgment to Helehan but deducted what it calculated tobe the balance due the State of Montana. That judgment found that Helehan was indebted to the Stateof Montana for $15,680.88, plus interest. It is from thatjudgment and a denial of themotion to alter or amend said judgment that Helehan appeals.Two issues arepresented on appeal: 1. Did the DistrictCourt properly award the State of Montana a money judgment inabsence of a hearing on the 

### merits and in the absence of an indispensable party? 2. Did the DistrictCourt properly credit interestdue the defendant? In order to answer the firstissue properly, the respondent suggests, and 

### we believe quiteproperly so, the issue should be restated inthe following manner: Did the District Court properly issue a judgment in thiscase, providing that the excess withdrawal of the appellant should be returned to the Statewith interest? It 

### is the appellant's argument that section 70-30-311, MCA provides that inorder torecover 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 torecognize that this very problem was considered by this Court inThe 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 asprovided by Chapter 234 of the Laws of 1961and noted that: "A carefulreading of the lastamendatory section clearly shows that the district court can limitthe draw-down to 75 per cent unless sureties areprovided for the amount over 75 per cent. This provision is toprotect the Statewhere more money has been withdrawn than isawarded by the jury, and with allparties to the litigation before the court, even though an action 

### is mentioned in the statute there could appear tobe no reason under this amendment that should restrain orprohibit the dis

### trict court infinallydetermining the issue." Churchwell, supra, at62, 403 P.2d at756. The DistrictCourt recognized the authority cited inchurchwell and ruled accordingly. Thereafter, the appellant created a side-issue by contending that appellant's attorney Engle was paid some of themoney withdrawn, therefore, the attorney, by reason of such payment, became a party to such action and that the Statemust look tohim torecover that money paid to the attorney by bringing a separate action against him. Appellant 

### cites no authority to support this contention thatEngle 

### was a party to the condemnation action. No facts

### werepresented that the appellantwas not the sole party to the action atthe 

### timeof the trial. As would appear from the fact situation, the payment by the appellant toEngle must have been made pursuant to some private agreement between counsel and appellant. The payment of some $7,000 by the appellant tohis attorney clearly isnot a payment of attorney's fees as "necessary expenses of litigation" pursuant to sections 70- 30-305 and 70-30-306, MCA. Payment toEngle 

### wasmade after the condemnation award was deposited, but before jury trial. The court fileindicates that this payment was made after the commission award had been appealled. The award of attorney's fees ina condemnation case 

### is only authorized at the conclusion of the litigation. It is only authorized after notice and a hearing before the DistrictCourt and if the landowner prevails inthe litigation. In addition, the amount tobe paid 

### isnot decided by the defendant in a court condemnation action, but by the DistrictCourt. Here 

### it isobvious that the payment toEngle did not make him a party to this action, nor is there any authority cited to us thathe became an indispensable party. The judgment of the DistrictCourt is hereby affirmed.We concur. 

# %&~t~~ Chief Justice