No. 86-457 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CHARLES MONTGOMERY, 

Plaintiff and Respondent, 

-vsDARREL L. HUNT and ANTHONY E. BROWN, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick F. Flaherty, Great Falls, Montana 

For Respondent: 

Donald L. Shaffer, Libby, Montana 

Submitted on Briefs: May 7, 1987 

Decided: June 25, 1987 

Filed: 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

Darrel L. Hunt and Anthony E. Brown , 

defendants/appellants, appeal the judgment of the Nineteenth 

Judicial District Court awarding judgment to the 

plaintiff/respondent Charles A. Montgomery in the amount of 

$5,000 and denying Hunt and Brown's motion to discharge or in 

the alternative quash the writ of attachment and dismissing 

the counter claim of Hunt and Brown. The issue presented to 

this Court by Hunt and Brown is whether the District Court 

erred in issuing the writ of attachment. We affirm. 

Hunt and Brown borrowed $5,000 from Montgomery and 

executed and delivered a promissory note as evidence of the 

debt. The note was due December 27, 1985 and was not paid on 

the due date. This action was commenced upon the note on 

January 3, 1986 and Montgomery moved the court for a writ of 

attachment filing an affidavit of attachment, and an 

attachment bond. Hearing was held on the same date by the 

court and Montgomery was sworn and testified. The court 

thereupon on the same date, made written findings, 

conclusions and order for Writ of Attachment to issue to 

attach two all-terrain vehicles as requested in the affidavit 

of attachment. Hunt and Brown filed a counter claim February 

10, 1986, alleging damages in a sum in excess of $5,000 

against Montgomery for breach of fiduciary duty, constructive 

fraud, creditor overreaching, wrongful attachment, and asked 

that their judgment be offset against the balance owed on the 

$5,000 note. In addition to the answer and counter claim, 

Hunt and Brown filed on the same date a motion to discharge 

or in the alternative to quash the writ of attachment. 

A bench trial was had in the cause on June 30, 1986, and 

on July 22, 1986, the District Court handed down its findings 
which granted judgment to the plaintiff plus interest and 

costs of action, which judgment has now been paid, finding 

that attachment was proper and dismissing the defendants' 

counter claim for lack of evidence. 

Hunt and Brown in their brief allege the issues are: 

1. Did the District Court err in issuing a writ of 

attachment when the note was secured by an alleged mortgage 

on real property? 

2. Did the District Court err in ordering the issuance 

of the writ of attachment when the affidavit of attachment 

failed to show facts that the contract was not secured by any 

mortgage or lien upon real property and failed to state the 

actual value of the property to be attached both as required 

by § 27-18-202, MCA? 

3. Whether attachment statutes are to be strictly 

construed? 

4. Did the District Court err in failing to return 

judgment for Hunt and Brown on their counterclaim for damages 

for wrongful attachment? 

Hunt and Brown claim the following wording in the note 

herein grants to Montgomery a real estate mortgage covering 

lots 23, block 2, West Troy: 

This note is given in connection with a certain 

other note and mortgage executed by the undersigned 

to secure a loan of $5,000 on 1. LOT 23 BLOCK 2 

WEST TROY. 

2. 1985 HONDA ATV 250 SE (Big Red). 

3. 1985 HONDA ATV 250 SX 

4. 1975 FORD 3/4 TON 4 x 4 ID. # TZGYR X20471 AS 

SECURITY ON ABOVE CAPTION LOAN in the County of 

LINCOLN in the State of Montana; . . . 

Also described as collateral are two all terrain vehicles 

which were the subject to the attachment. There was no other 

note and mortgage as mentioned in the executed note. There 
is grave question as to whether or not this wording 

constitutes a hypothecation for real estate mortgage 

purposes. However, the parties do not dispute a security 

interest in the vehicles. The Uniform Commercial Code 

governs insofar as the personal property is concerned which 

states in B 30-9-501(4), MCA, as follows: 

If the security agreement covers both real and 

personal property the secured party may proceed 

under this part as to the personal property or he 

may proceed as to both the real and the personal 

property in accordance with his rights and remedies 

in respect of the real property in which case the 

provisions of this part do not apply. 

It appears that Montgomery did elect to proceed under the UCC 

and under the UCC 5 30-9-503, MCA, Montgomery as the secured 

party on the default had the right to take possession of the 

collateral and the alleged erroneous issuance of the writ of 

attachment to take possession of the collateral was harmless 

error. 

The same reasoning may be applied to the second error 

assigned by Hunt and Brown in this appeal. 

Hunt and Brown's third issue alleging that the 

attachment statutes are to be strictly construed also is not 

applicable to the facts here. As to the fourth issue which 

is contained in the conclusion of the appellants' brief, did 

the court err in failing to return judgment for Hunt and 

Brown in their counterclaim for damages for wrongful 

attachment? 

Even assuming that the writ of attachment was improperly 

obtained because the note was secured by a mortgage of real 

property and for failure of the affidavit to state facts as 

required in said S 27-18-202, MCA, and assuming that the 

hearing on the issuance of the writ of attachment and the 

sworn testimony of Montgomery did not cure the defects in the 
affidavit and no further oral motions were made to amend the 

affidavit of attachment as allowed by § 27-18-713, MCA, Hunt 

and Brown's counterclaim must fail. This is not a 

counterclaim and third party complaint on an attachment bond 

as provided by § 27-18-204, MCA. The surety was originally 

named as a third party defendant but was not served and later 

was dropped as a party. Such action on the attachment bond, 

cannot be brought in the attachment action but can only be 

brought after "defendant recovers judgment" in the attachment 

action or when "the court finally decides that the plaintiff 

was not entitled to an attachment." See Yellowstone 

Livestock Commission v. Dupuis (1958), 133 Mont. 454, 325 

P.2d 691. The counterclaim is then premised upon the common 

law notions of malicious prosecution or abuse of process, 

which is a suit in tort. To recover on such a suit, two 

elements must be present and proved, malice and want of 

probable cause. 

The record is entirely devoid of any proof in support of 

Hart and Brown's counterclaim relative to fiduciary 

relationship between the parties or of any constructive fraud 

or creditor overreaching on the part of Montgomery, and in 

fact the record does show that Montgomery did act in good 

faith in bringing the action and attempting the attachment 

and had probable cause. The court found the debt was owed to 

Montgomery by Hunt and Brown; that Montgomery was told that 

he could not have possession of the all-terrain vehicles when 

he asked for them after the debt became due and unpaid; and 

that plaintiff was informed by Hunt that Hunt and Brown were 

going to sell such vehicles. This action on their part would 

convert the tangible attachable property to cash which would 

then be practically unreachable by Montgomery. 

Hunt and Brown failed to prove any malice (actual or 

legal) on the part of Montgomery. Proof of malice (actual or 
legal) and want of probable cause are two essential elements 

of an action for wrongful attachment in tort. Attachment and 

Garnishment, § 596, 6 Arn.Jr.2nd. Brown v. Guaranty Estates 

Corporation, (N.Car. 1954), 80 S.E.2d 645, Ray v. City Bank 

and Trust Co. (DC Ohio 1973), 358 F.Supp 630. The ~istrict 

Court is affirmed. 

&PAP-/ 

Justice 

We Concur: A 

\j chief Justice /jnl 

/, ' , c. ,?A,,LJ. 0,h7/ 

Justices i