No. 85-460 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1386 

JAMES H. SADLER, et ux, 

Pla.intiffs and Appellants, 

-vsDALE P. HART, et ux, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Zudicial District, 

In and for the County of Missoula, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Samuel Coon, Missoula, Montana 

For Respondent: 

Terry A. Wallace, Fissoula, Montana 

Filed: 

Submitted on Briefs: Dec. 18, 1985 

Decided: March 13, 1986 

8 k *,u 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

James Sadler appeals the order and writ of assistance 

issued by the District Court of the Fourth Judicial District 

granting immediate possession of the appellant Sadler's home 

to the respondents Dale and Gail Hart. 

We affirm the order and writ of the District Court. Two 

issues are presented for our consideration: 

1. Was the order and writ of assistance proper? 

2. Did the order and writ of assistance comport with 

due process? 

To end numerous lawsuits between the appellants and 

respondents, both parties filed with the District Court a 

settlement agreement which the court adopted as a consent 

decree on December 31, 1984. The consent decree enjoined 

both parties from filing any cause of action against each 

other which arose before the date of the decree. 

The decree settled all obligations between the parties, 

save one. The matter remaining involved the sheriff's deed 

held by Hart's to Sadler's home. The consent decree allowed 

Sadlers to extinguish the Hart's interest in the home by 

payment of twenty eight thousand doll-ars, payable in three 

installments, time being of the essence. The District Court, 

by terms of the consent decree, would act as escrow agent for 

the parties. As escrow agent, the court held documents to be 

released in the event of payment or nonpayment. 

On July 3, 1985 the respondents pursuant to the consent 

decree requested the court to take appropriate action because 

the second installment due had not been paid. Their request 
was accompanied by a certification of the clerk of court that 

the payment had not been made. 

In accordance with the provisions of the consent decree 

the District Court released to the Harts quit claim deeds to 

the property, a confirmation of the previous execution sale, 

and a writ of assistance, which had been previously 

consented to by the appellants at the time the consent decree 

was adopted. The consent decree expressly stated that the 

court, as escrow agent, could "act without notice to the 

other parties." On July 18, 1985 the sheriff of Missoula 

County served the Sadlers with the order and obtained 

possession of the home for the Harts. 

The appellants did not appeal the consent decree, which 

is a final judgment and therefore an appealable order. In 

the absence of such an appeal, challenges to the decree 

itself cannot be considered. 1JIurphy v. Patterson (1901), 24 

Mont. 591, 63 P. 380, 381. Therefore, this Court considers 

first whether the order and writ issued by the District Court 

corresponded to the terms of the consent decree. The order 

and writ of assistance followed the terms of the decree 

exactly and cannot be challenged on that basis. 

Secondly, appellants argue they were denied due process 

by not receiving prior notice of the order and writ of 

assistance and by being deprived of an opportunity for a 

hearing. This argument fails because the express terns of 

the consent decree, signed by the appellants, indicates they 

knowingly and voluntarily waived notice of the court's 

actions pursuant to the default provisions of the decree. 

Pacific R.V. v. Ketchum (18791, 101 U.S. 289, 295. 

Appellants contend that this Court should consider their 

argument that the terms of the consent decree were later 
modified by the parties. We cannot consider issues or 

evidence not raised in the District Court. Kearns v. 

McIntyre Const. Co. (1974), 173 Mont. 239, 567 P.2d 433. 

The District Court is affirmed. 

We Concur: 

/" 

Chief Justice