No. 85-460 IN THE SUPREME COURT OF THE STATE OF MONTANA 1386

JAMESH. SADLER, et ux, Pla.intiffsand Appellants,
-vsDALE P. HART, et ux, et al., Defendantsand Respondents.

APPEAL FROM: District Court of the Fourth ZudicialDistrict, 

### In and for the County of Missoula, The Honorable Gordon Bennett,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Samuel Coon,Missoula,Montana
For Respondent: TerryA. Wallace,Fissoula,Montana

Filed: Submitted on Briefs: Dec. 18, 1985 Decided: March 13,1986

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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 respondentsDale and GailHart. We affirm the order andwrit of the DistrictCourt. Two issues arepresented for our consideration: 1. 

### Was the order and writ of assistanceproper? 2. 

### Did the order and writ of assistance comport with dueprocess? 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 otherwhich arose before the date of thedecree. The decree settled all obligations between the parties,
save one. The matter remaining involved the sheriff's deed held by Hart's to Sadler'shome. 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, timebeing of the essence. The District Court, by terms of the consentdecree,would act as escrow agent for the parties. As escrow agent,the courtheld documents tobe released in the event ofpayment ornonpayment. 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 requestwas accompanied by a certificationof the clerk of court that the payment had notbeen 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. 1JIurphyv. Patterson (1901), 24 Mont. 591, 63 P. 380, 381. Therefore, this Court considers first whether the order and writ issued by theDistrictCourt corresponded to the terms of the consent decree. The order and writ of assistance followed the terms of the decree exactly and cannotbe challengedon thatbasis. 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 (18791,101U.S. 289, 295. Appellants contend that this Court should consider their argument that the terms of the consent decree were latermodified 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