No. 86-98 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

WESTMONT TRACTOR CO., a corporation, 

Plaintiff and Respondent, 

-vsRONALD LEIGHTY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sverdrup & Spencer; Scott B. Spencer, Libby, Montana 

For Respondent: 

Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman, 

Kalispell, Montana 

- -- - - 

Submitted on Briefs: May 9, 1986 

Decided: July 22, 1986 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Ronald Leighty appeals from an opinion and deficiency 

judgment against him of $8,146.53 entered by the District 

Court of the Nineteenth Judicial District, Lincoln County. 

We affirm. 

There is one issue on appeal. Did the District Court 

err in allowing a deficiency judgment? 

Westmont Tractor Co. sued Ron Leighty for a deficiency 

of $39,537.82. That deficiency arose out of a transaction in 

which Leighty, a logger, purchased three pieces of logging 

equipment. In September 1974, he purchased two Model 21 A 

Tree Farmers. They had substantially similar serial numbers: 

SN SFL205 and SN 6FE204. They will be referred to as 205 and 

204. In 1977, Leighty purchased a Model 30 Tree Farmer. The 

obligations were combined into a single note. 

The Model 30 never worked properly. Numerous attempts 

to fix it failed. Leighty lost a great deal of time and 

money in attempting to repair it, and could not make payments 

on the note. Leighty attempted to return the Model 30 to 

Westmont, but Westmont refused to accept it. Finally, in the 

spring of 1978 Leighty returned the Model 30 and the Model 21 

A # 204 to Westmont. Westmont agreed to sell the machines 

and credit the sale price to Leighty's account, but told 

Leighty he would be liable for any deficiency. These 

machines were sold at private sale. The Model 30 was sold 

for $7,500 leaving a deficiency of $17,000.00. The Model 21 

A #204 was sold for $9,000.00 leaving a deficiency of 

$8,146.53. 
In September, 1980 Westmont repossessed the remaining 

Model 21 A #205. Westmont sold the #205 at public auction to 

itself for $7,500.00 leaving a deficiency of approximately 

$14,500.00. 

In 1983, Westmont sued Leighty for $39,537.82. The 

District Court held that Westmont sold the Model 30 with 

knowledge that it would be used for logging in rugged 

terrain, and that Westmont knew or should have known it was 

unfit for that purpose. Therefore the District Court denied 

the deficiency judgment on the Model 30. The District Court 

held the private sale of the Model 21 A #204 was properly 

conducted. It entered a deficiency judgment against Leighty 

for $8,146.53 on the transaction. 

As to the public sale of the Model 21 A #205, the 

District Court found numerous problems. The notice of public 

sale sent to Leighty stated the sale would be July 30, 1980. 

The sale was held August 27, 1980. A newspaper advertisement 

in the Missoulian on August 24 listed the sale as August 27 

but referred to Model # 204. All the notices sent to Leighty 

refer to 204, while the accounting for the same sale lists 

205 as the serial number. Prior to the sale, Leighty was 

billed for over $4,700.00 in repairs. No showing of 

reasonableness of repairs was made. Due to these problems, 

the District Court refused to grant a deficiency of judgment 

against Leighty on the Model 21 A #205. 

Westmont contends this appeal should be dismissed for 

failure to file an undertaking for costs on appeal as stated 

in Rule 6 (a) M.R.App.Civ.P. Westmont argues the posting of 

bond is jurisdictional. Indeed, under S 9733 RCM (1935) 

posting a bond for costs on appeal was jurisdictional. 

Pappas v. Braithwaite (1946), 116 Mont. 606, 173 P.2d 116; 
Sykes v. Republic Coal Company (1943), 113 Mont. 619, 139 

P.2d 543. However that is no longer true under the current 

rules. The only step necessary to perfect an appeal is 

filing a notice of appeal within time allowed by Rule 5 

M.R.App.Civ.P. "While the filing of a bond for costs may be 

required, failure to file the bond does not affect the 

validity of the appeal . . .. [Flailure to effect timely 

filing of the bond should not, without more, result in 

dismissal." 9 Moore's Federal Practice 5207.02. In this 

case there are no other circumstances that mandate dismissal. 

Next Westmont contends that the appeal should be 

dismissed because the judgment against Leighty has been 

partially satisfied, and a decision on appeal becomes 

ineffective. However, where, as in this case, the judgment 

was only partially satisfied by execution, it remains a 

proper subject for judicial review. Twenty-Seventh Street, 

Inc. v. Johnson (Mont. 1986), 716 P.2d 210, 211-12, 43 

St.Rep. 534, 536; State v. Rafn (1956), 130 Mont. 554, 557, 

304 P.2d 918, 919-20. 

Leighty contends the District Court erred in granting a 

deficiency judgment on the Model 21 A # 204 which was 

voluntarily returned by Leighty and sold at private sale. 

Leighty apparently argues that while he voluntarily 

returned the Model 21 A, after it had been returned Westmont 

sent a notice of repossession sale and sold the equipment at 

public sale. Leighty however does not raise sufficiency of 

the evidence. Instead, he contends the actions of Westmont 

changed the sale from a consent sale to a repossession sale 

for which notice is required under Montana Law. Bank of 

Sheridan v. Divers (Mont. 1985), 702 P.2d 1388, 42 St.Rep. 

1107; Wippert v. Blackfeet Tribe of the Blackfeet Indian 
Reservation (Mont. 1985), 695 P.2d 461, 42 St.Rep. 200; 

Farmers State Bank v. Mobile Homes Unlimited (1979), 181 

Mont. 342, 593 P.2d 734. Appellant contends the notice of 

public sale was deficient. 

The District Court found that the Model 21 A # 204 was 

voluntarily returned for a private sale. The facts as set 

forth by the District Court in its findings of fact are 

controlling on appeal unless clearly erroneous. Rule 52, 

M.R.Civ.P. St. John's Hospital v. State Board of Health 

(1973), 161 Mont. 406, 409, 506 P.2d 1378, 1379. 

There is no merit in Leighty's claim that the nature of 

public sale was defective because, as the District Court 

held, the machine was returned for and sold at private sale. 

Accordingly, we affirm the judgment of the District Court. 

We Concur: