No. 90-051 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

CREDIT ASSOCIATES, INC, 

plaintiff and Respondent, 

-vsJUG 2 6 1990 

RICHARD E. HARP, SR.1 and 

LAvoNNE K. HARP, td ~LL~L 

CLERK OF SUPREP+IE COURT 

Defendants and Appellants. STATE OF ~IONTANA 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard E. and LaVonne K. Harp, Great Falls, 

Montana, Pro Se. 

For Respondent: 

Dirk Larsen, Larsen & Neill, Great Falls, Montana 

Filed: 

Submitted on Briefs: May 24, 1990 

Decided: June 26, 1990 m 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

Appellants Richard and LaVonne Harp appeal the order of the 

District Court of the Eighth Judicial District, Cascade County, 

dismissing their appeal from justice court for failure to file a 

proper undertaking on appeal. We reverse and remand. 

On June 27, 1989, respondent Credit Associates, Inc., filed 

suit in the justice court of Great Falls naming the appellants in 

a case brought for the collection of three claims which had been 

assigned to the respondent for collection. Those collection claims 

included claims to recover $98.89 for Columbus Hospital, $85.70 for 

Dr. Robert E. Wynia and $151.10 for Radiology/Columbus. 

Following trial in justice court, a judgment was granted in 

favor of the respondent on all three claims. The appellants filed 

an appeal with the District Court but failed to file a proper 

undertaking on their appeal to the District Court and the District 

Court thereafter ordered that the appeal from justice court be 

dismissed. The appellants now appeal to this Court. 

The issue on appeal is whether the District Court erred in 

dismissing the appeal from justice court for the reason that the 

appellants had failed to file a proper undertaking as required by 

law. 

In support of their arguments, appellants' brief contains 

various facts which have not been established by the record before 

us. In the absence of an appropriate record, this Court cannot 

consider any such alleged facts on an appeal. 

Under the provisions of § 25-33-201(1), MCA, the appellants 

were required to file an undertaking in an amount equal to twice 
the amount of the judgment including costs. In Merchants Ass'n v. 

Conger (1979), 185 Mont. 552, 606 P.2d 125, an indigent defendant 

had appealed from a justice court judgment to the district court. 

In substance this Court held that under 8 25-33-201 (1) , MCA, a 

requirement that the appellant must post an undertaking in an 

amount equal to double the judgment violated the indigent 

defendant's Fourteenth Amendment rights. From the limited facts 

available to us, it appears that this decision may be controlling 

as to the major part of the undertaking. 

We therefore reverse the order of the District Court 

dismissing the appeal and remand the case to the District Court for 

its determination of the indigency on the part of the appellants 

and consideration of the law of the case, including our decision 

in Merchants Association. 

We concur: