No. 13285 INTHE SUPREI4E COURT OF THE STATE OF MONTANA

CLARICE L.
-VS

## - WILLIAM Be and SHIRLEY A.

and SHIRLEY A,
-vs

# - WILLIAM B. BUSTET,T, 

## ,Plaintiff and Respondent, BUSTELT, and SHIRLEY A. BUSTELL, Defendants. BUSTELL, Countercl-aimant and Appellant, BUSTET,L

### ,Counterclaimant Defendant and Respondent. BUSTELL, Cross-Claimant and Appellant, BUSTELL, Cross Defendant.
Appeal from: District Court of the Thirteenth JudicialDistrict, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Gary E. Wilcox argued and Terry L. Seiffert argued,

Billings, Montana For Respondent: William G. Mouat argued, Billings, Montana Davidson, Veeder, Baugh and Broeder, Billings, Montana

Submitted: September 8, 1976 Decided: 

## 9Ep~8 p;,Mr. Justice Frank 

### I. Haswell delivered the Opinion of the Court.
The question in this case is whether theMontana attachment statutes, insofar as they permit the prejudgment attachment of real estate without prior notice and hearing,violate the due process clause of the Fourteenth Amendment to the United States Constitution. The district court held them constitutional. We a£ £irm. On September 

### 5, 1974,plaintiff Clarice

### L. Bustell commenced
an action against defendants William B. Bustell and Shirley

### A. Bustell in the district court of Yellowstone County, to collect
an overdue and unpaid promissorynote for $8,000, interest and attorney fees. Plaintiff is the mother of defendant William B. Bustell who was divorced from the other defendant, ShirleyA. Bustell, on August 14, 1974. On the date the complaint was filed a summonswas issued whichwas served on one of the defendants on the same day and on the other defendant five days later. On the day suitwas filed, plaintiff also filedher affidavit for attachment stating in substance that defendantswere indebted to plaintiff in the sum of $8,000 over and above all legal counterclaims on the promissory note in question; that said amount is now due; that payment is not secured by any mortgage or lien on real or personal property
or pledge of personal property; and that the action is not prosecuted to hinder, delay, or defraud any creditors of the defendants. At the same time plaintiff filed an undertaking on attachment in the amount of $10,580.50 signed by two suretieswhereby they guaranteed payment by plaintiff of all damages and costs in theevent that defendants recovered judgment or the court finally decided that plaintiff was not entitled to an attachment. On this basis, the clerk of court issued a writ of attachment
on the day suitwas filed. On September 11, the sheriff attached the interest of defendant ShirleyBustell in a home owned by defendants by filing a copy of the writ of attachment and notice of attachmentwith the county clerk and recorder. No notice was given to defendants prior to the attachmentnorwere they afforded an opportunity to be heard prior to issuance or levy of the writ of attachment. On November 

### 20, 1974defendant ShirleyBustell filed a counterclaim against plaintiff alleging that the attachment of her real estate was unconstitutional on the basis of Sniadach
v. Family Finance Corp. of BayView, 395 U.S. 337, 89 S.Ct. 1820, 23 

### L ed 2d 349 (1969), and its progeny. Plaintiff admitted the real estatewas attached pursuant to Montana attachment statutes and that such attachment constituted a lien against the real estate under Montana law. Defendant ShirleyBustell filed a motion for summary judgment
on the issue of liabilitywhichwas denied by the district court, Hon. Robert 

### H. Wilson,district judge, on December 19, 1975, on thebasis that Montana statutory procedures on attachment effect a constitutional accommodation of the conflicting interests of the parties and therefore procedural due process has been satisfied. Subsequently, the district court granted summary judgment to plaintiff Clarice 

### L. Bustell striking the counterclaim of defendant ShirleyBustell. Defendant ShirleyBustell now appeals from.bothorders.In recent years the United States Supreme Court has handed down a number of decisions on the broad question of the Fourteenth Amendment procedural due process requirements relating to various types of attachments, garnishments,and replevin under a variety of different state laws. Theprincipal decisions in chronological order are Sniadachv. Family Finance Corp. of Bay View, supra, 1969 [garnishmentofwages under Wisconsin statutorygarnishment procedures]; Fuentesv. Shevin, 407U.S. 67, 92S.Ct. 1983, 32 L ed 2d 556 (1972) [replevinof merchandise under defaulted installment sales contract under Florida laws]; Mitchell v. W. T. Grant Co., 416U.S. 600, 94S.Ct. 1895, 

### 40 L ed 2d 406 (1974)

[sequestrationof merchandise under defaulted installment sales contract under Louisiana law]; and North Georgia Finishing, Inc.
v. Di-Chem, Inc., 419 U.S. 601,618, 95 S.Ct. 719, 42L ed 2d 751, 764 (1975) [garnishmentof bank account under Georgia prejudgment garnishment statutes]. Confusion abounds due to their inconsistent analyses of different state procedures in differing factual settings. Mr. JusticeBlackmun commented on the weakness and confusion of the United States Supreme Court's position in recent cases in this language inNorth Georgia Finishing, Inc. v. Di-Chem, Inc., supra: "The admonition of the Great Chief Justice, inmy view, should override any natural,and perhaps understandable, eagerness to decide. Had we bowed to that wisdom when Fuenteswas before us, and waited a brief time for reargumentbefore a full Court,whatever its decisionmight have been, 

### Iventure to suggest thatwe would not be immersed in confusion,with Fuentes oneway,Mitchell another,and now this case decided in a manner that leaves counsel and the commercial communities in other States uncertain as to whether their own established and long-accepted statutespass constitutional muster with a wavering tribunal off inWashington, D.C. This Court surely fails in its intended purpose when confusing results of this kind are forthcoming and are imposed upon thosewho owe and thosewho lend." Also see: The Supreme Court's ChangingAttitude Toward Consumer Protectionand Its Impact onMontana PrejudgmentRemedies. Prof. John

### T. McDermott, 36 Mont. Law Review 165; The Supreme Court's Still ChangingAttitude Toward Consumer Protectionand Its Impact
on the Integrity of the Court. Prof. McDermott, 37 Mont. Law Review 27. In this uncertaintywe rely principally on two decisions of the federal courts to determine the issue in the instant case. The federal appeals court for the Ninth Circuit has held that where no property other than real estate was attached under
a Washington prejudgment attachment statute and at no time did issuance or execution of thewrit of attachment deprive defendant of ownership, actual use or physical possession of the attached property, therewas no substantial taking of propertywithin the protection of the due process clause of the FourteenthAmendment. Matter of Northwest Homes of Chehalis, Inc. v. Weyerhaeuser Company, 526 F.2d 505,cert..den. March 29, 1976. Thus the Washington prejudgment statute as applied did not violate procedural due process under the FourteenthAmendment. The second case onwhich we rely is Spielman-Fond,Inc. v. Hanson's, Inc., 379 F.Supp. 997,999,aff'd 417U.S. 901, 94S.Ct. 2596, 41

### L ed 2d 208 (1974). There the court held that the filing of anon-possessorymechanics' and materialmen's lien against real property is not such a significant taking of a property interest that prior notice and an opportunity to challenge the lien in a prior hearing are required by the due process clauseof the FourteenthAmendment. The court observed that "The liens do nothing more than impinge upon economic interests of the property owner." but do not deprive him of the use, possession or alienation of his property. This closelyparallels the operation of our real estate attachment procedures. Montana attachment statutes provide the ownerwith the remedy of an early hearing to discharge the attachment. Section 93-4329, R.C.M. 1947. The facts of this case present a situationwhere postponement of notice and hearing until after attachment does not offend procedural due process. We are aware of other cases that hold that non-possessory attachment of real estate without prior notice and hearing violate procedural due process guaranteed by the FourteenthAmendment, e.g.see: Terranova v. AVCO Financial Service of Barre, Inc., 396 F.Supp. 1402;Gunter v. Merchants Warren National Bank, 360 F.Supp. 1085;United StatesGeneral, Inc. v. Arndt, (D.C.,E.D.Wis.), unreported to date. These cases are not persuasive to us, resting
on gauzy and theoreticalbases having little relevance to present day realities. Additionally they are all decisions of United States District Courts, as opposed to the authorities onwhich
we have relied,viz: the United States Supreme Court and the United States Court of Appeals. For the reasons and under the authorities previously set forth, the orders of the district court are affirmed.

Justice 'We Concur:IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 13285
CLARICE L. BUSTELL, Plaintiff and Respondent, VS. WILLIAM B. BUSTELL and SHIRLEY A. BUSTELL, Defendants. and SHIRLEYA. BUSTELL, 

### NOV1.O

### 1576

Counterclaimant and Appellant, VS

## . CLARICE L. BUSTELL, Counterclaimant Defendant and Respondent. and SHIRLEY A. BUSTELL, Cross-Claimantand Appellant,
VS. WILLIAM B. BUSTELL, Cross Defendant.

ORDER AMENDING OPINION The following amendment of the above named opinion decided September 28, 1976, is hereby ordered: (1) On page 3, line 6, strike the word "defendants"and substitute the word "her". (2) On page 6, following line 5, add the following
new paragraph: "Also see Hutchinsonv. Bank of North Carolina, 392 F.Supp. 888 )1975), holding that although the attachment of real property is a substantial deprivation of a significant property interest subject to the protection of the due processclause, North Carolina's prejudgment attachment statutes do not violateprocedural due process requirements." As so amended, the pe 0