No. 13285 

IN THE 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. 

BUS TELL, 

Cross -Claimant and Appellant, 

BUSTELL, 

Cross Defendant. 

Appeal from: District Court of the Thirteenth Judicial District, 

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 the Montana 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 promissory note for $8,000, interest and 

attorney fees. Plaintiff is the mother of defendant William B. 

Bustell who was divorced from the other defendant, Shirley A. 

Bustell, on August 14, 1974. 

On the date the complaint was filed a summons was issued 

which was served on one of the defendants on the same day and on 

the other defendant five days later. On the day suit was filed, 

plaintiff also filed her affidavit for attachment stating in 

substance that defendants were 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 sureties whereby they 

guaranteed payment by plaintiff of all damages and costs in the 
event 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 suit was filed. On September 11, the sheriff attached 

the interest of defendant Shirley Bustell in a home owned by 

defendants by filing a copy of the writ of attachment and 

notice of attachment with the county clerk and recorder. No 

notice was given to defendants prior to the attachment nor were 

they afforded an opportunity to be heard prior to issuance or 

levy of the writ of attachment. 

On November 20, 1974 defendant Shirley Bustell 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 Bay View, 395 U.S. 337, 89 S.Ct. 

1820, 23 L ed 2d 349 (1969), and its progeny. Plaintiff 

admitted the real estate was attached pursuant to Montana attachment statutes and that such attachment constituted a lien against 

the real estate under Montana law. 

Defendant Shirley Bustell filed a motion for summary judgment 

on the issue of liability which was denied by the district court, 

Hon. Robert H. Wilson, district judge, on December 19, 1975, 

on the basis 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 Shirley Bustell. 

Defendant Shirley Bustell now appeals from.both orders. 
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. The principal decisions in chronological 

order are Sniadach v. Family Finance Corp. of Bay View, supra, 

1969 [garnishment of wages under Wisconsin statutory garnishment 

procedures]; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 

L ed 2d 556 (1972) [replevin of merchandise under defaulted installment sales contract under Florida laws]; Mitchell v. W. T. 

Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L ed 2d 406 (1974) 

[sequestration of 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, 42 L ed 2d 

751, 764 (1975) [garnishment of bank account under Georgia prejudgment garnishment statutes]. Confusion abounds due to their 

inconsistent analyses of different state procedures in differing 

factual settings. 

Mr. Justice Blackmun commented on the weakness and confusion 

of the United States Supreme Court's position in recent cases 

in this language in North Georgia Finishing, Inc. v. Di-Chem, 

Inc., supra: 

"The admonition of the Great Chief Justice, in my view, 

should override any natural, and perhaps understandable, 

eagerness to decide. Had we bowed to that wisdom when 

Fuentes was before us, and waited a brief time for reargument before a full Court, whatever its decision might 

have been, I venture to suggest that we would not be immersed 

in confusion, with Fuentes one way, 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 statutes pass 

constitutional muster with a wavering tribunal off in 
Washington, D.C. This Court surely fails in its 

intended purpose when confusing results of this 

kind are forthcoming and are imposed upon those who 

owe and those who lend." 

Also see: The Supreme Court's Changing Attitude Toward Consumer 

Protection and Its Impact on Montana Prejudgment Remedies. Prof. 

John T. McDermott, 36 Mont. Law Review 165; The Supreme Court's 

Still Changing Attitude Toward Consumer Protection and Its Impact 

on the Integrity of the Court. Prof. McDermott, 37 Mont. Law 

Review 27. 

In this uncertainty we 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 the writ of attachment deprive defendant 

of ownership, actual use or physical possession of the attached 

property, there was no substantial taking of property within the 

protection of the due process clause of the Fourteenth Amendment. 

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 Fourteenth Amendment. 

The second case on which we rely is Spielman-Fond, Inc. v. 

Hanson's, Inc., 379 F.Supp. 997,999, aff'd 417 U.S. 901, 94 S.Ct. 

2596, 41 L ed 2d 208 (1974). There the court held that the 

filing of a non-possessory mechanics' 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 clause 
of the Fourteenth Amendment. 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 closely parallels the operation 

of our real estate attachment procedures. 

Montana attachment statutes provide the owner with the remedy 

of an early hearing to discharge the attachment. Section 93-4329, 

R.C.M. 1947. The facts of this case present a situation where 

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 Fourteenth Amendment, 

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 States General, Inc. v. Arndt, (D.C.,E.D.Wis.), 

unreported to date. These cases are not persuasive to us, resting 

on gauzy and theoretical bases having little relevance to present 

day realities. Additionally they are all decisions of United 

States District Courts, as opposed to the authorities on which 

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 

SHIRLEY A. BUSTELL, 

NOV 1. O 1576 

Counterclaimant and Appellant, 

VS . 

CLARICE L. BUSTELL, 

Counterclaimant Defendant and Respondent. 

and 

SHIRLEY A. BUSTELL, 

Cross-Claimant and 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 Hutchinson v. 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 process 
clause, North Carolina's prejudgment attachment 

statutes do not violate procedural due process 

requirements." 

As so amended, the pe 

0