No. 84-30 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MYRON BUFFALO, 

Plaintiff and Appellant, 

JERRY THIEL, JIM NIXON, in his 

capacity as Constable of Yellowstone 

County, and JANET ESCHLER, Justice 

of the Peace, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert H. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

D. Michael Eakin argued, Montana Legal Services, 

Billings, Montana 

For Respondents: 

Radovich Law Firm; George T. Radovich argued 

for Thiel, Billings, Montana 

Harold Kanser County Attorney, Billings, Montana 

David W. Hoefer argued for Nixon & Eschler, Deputy 

County Attorney, Billings, Montana 

Submitted: October 9, 1984 

Decided: November 15, 1984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Zour t . 

This is an appeal from an order of the District Court 

of the Thirteenth Judicial District, Yellowstone County, 

denying appellant's petition for a writ of certiorari to 

review an order of the justice court. We reverse the 

District Court order. 

On October 11, 1983, John Lucero rented a room at the 

Townhouse Motel in Billings under the name of John Santana. 

He and some friends, including appellant Myron Buffalo, had 

3 party in the room. A fight erupted and the room was 

damaged. 

The next day, October 1.2, 1984, the owner of the 

hotel, Jerry Thiel, brought an action in the justice court 

against all persons present in the motel room. The 

complaint alleged that the defendants were liable for the 

damage on an implied contract basis. They were also charged 

criminally in the matter. 

At Thiel's request, at the time the complaint was 

filed, the justice court also issued an ex parte 

prejudgment attachment of a pickup truck in the possession 

of Myron Buffalo. The truck was impounded that same day. 

On October 12, the record title of the pickup truck 

was in the name of Mr. Buffalo's wife, Antoinette Martinez. 

The original complaint of October 12, failed to name her as 

a defendant, but Thiel subsequently amended it to include 

her. 

A hearing was scheduled for the second day following 

the pre-judgment attachment. Mr. Buffalo appeared at that 

hearing to defend against the attachment, but Mr. Theil 
moved that the court continue the hearing because i4s. 

Martinez had not yet been served. The hearing was continued 

for four days and Ms. Martinez was served. At the hearing, 

Mr. Buff a10 appeared and argued against the prejudgment 

attachment on two grounds: (1) that it was not properly 

issued under the statute; and (2) that in any event, the 

pickup was exempt because it was part of his marital estate, 

and essential to his employment. The justice court took the 

matter under advisement. On October 21, Antoinette Martinez 

conveyed title of the pickup to the plaintiff, Mr. Buffalo. 

Five weeks later the justice court ruled that the 

attachment would continue during the pendency of the action. 

During all of this time the pickup was in the possession of 

the Yellowstone County Sheriff Is office. 

Mr. Buffalo then filed a "Complaint and Petition for 

Writ of Certiorari" in district court, alleging wrongful 

attachment, requesting compensatory damages and exemplary 

damages of $10,000, and asking the district court to review 

the justice court proceedings. The district court denied 

Thiel's motion to dismiss the complaint and Buffalo's 

petition for a writ of certiorari. As to the writ, the 

court ruled: "It appearing that any ruling by this Court as 

to whether or not the lower Court acted outside its 

jurisdiction must be based upon a review of the factual or 

legal findings and that such review process is beyond the 

statutory limitation of this Court." From this order, 14r. 

Buffalo appeals, citing the following issues for review: 

(1) Does the District Court have the authority to 

review a prejudgment attachment issued by a justice court? 

(2) What is the scope of review on a writ of 
certiorari? 

(3) Was the justice court acting within its 

jurisdiction? 

(4) Was the prejudgment attachment statute applied in 

an unconstitutional manner? 

Certiorari, also called the writ of review, is 

provided for by section 27-25-102, MCA, stating in pertinent 

part: 

"A writ of review may be granted by . . . (2) the supreme court or the district 

court and any judge thereof, when an 

inferior tribunal board, or officer 

exercising judicial functions has 

exceeded the jurisdiction of such 

tribunal, board or officer and there is 

no appeal or, in the judgment of the 

court, any plain, speedy, and adequate 

remedy. " 

If the error is lack of, or excess of jurisdiction, 

then certiorari is the remedy, State ex rel. Jackson v. 

Rennie (1900), 24 Mont. 45, 50 P. 589. The writ issues from 

the superior court to the lower court to transmit the record 

for review. The purpose of the writ is to determine whether 

the lower court was acting within its jurisdiction, and to 

control the action of that court to keep it within those 

bounds. 14 Am.Jur.2d Certiorari section 2. 

The writ cannot be used to correct errors within the 

lower court's jurisdiction, State ex rel. Mercer v. Woods 

(1945), 116 Mont. 533, 155 P.2d 197, 14 Am.Jur.2d Certiorari 

section 10. In this sense, the lack of jurisdiction must be 

distinguished from an erroneous decision made by a court in 

exercising the jurisdiction it possessed 20 Am.Jur.2d 

Courts section 90. If a court is acting within its 

jurisdiction, it has the power to decide erroneously as well 

as correctly. Johnston v. Marsh (3rd Cir. 1955), 227 F.2d 
528. If an erroneous decision is made in such a case, it is 

not void and only subject to correction on appeal or by a 

writ of supervisory control, see State ex rel. Cominco Amer. 

Inc. v. Dist. Ct. (1966), 147 Mont. 412, 412 P.2d 577, State 

ex re. Nelson v. Dist. Ct. (1938), 107 Mont. 167, 81 P.2d 

699. Notwithstanding the general rule, courts sometimes 

consider defects and errors in the proceedings of the 

inferior tribunal which are not of a strictly jurisdictional 

nature. 14 Am.Jur.2d Certiorari section 10. This Court has 

held that constitutional errors may be reviewed by a writ of 

certiorari. Rose v. District Court (Mont. 1981), 628 P.2d 

662, 38 St.Rep. 830. 

Apart from the "constitutional" exception, the subject 

of inquiry on certiorari was whether the lower court had 

jurisdiction over the matter. This necessarily includes 

personal and subject matter jurisdiction. The area of 

difficulty arises, as in this case, where an inferior court 

has both subject matter and personal jurisdiction, and is 

acting under a particular statute conferring jurisdiction to 

act only in certain circumstances. The inquiry in such a 

case is to whether all of the conditions precedent to such 

jurisdiction are present. The presence or absence of such 

"jurisdictional facts" is determinative of whether the lower 

court acted with and within its jurisdiction. 

In White v. Corbett (1935), 101 Mont. 1, 52 P.2d 156, 

this Court discussed the effect of conditions precedent to 

jurisdiction. There, we held that a justice court must have 

all of the requisite facts before it before jurisdiction 

would lie. In that case, the justice court had granted an 

exemption of property from attachment. The 
plaintiff-appellant had requested the distict court to 

review the justice court's action on a writ of certiorari. 

He alleged the justice court was acting without jurisdiction 

because the defendant, who had filed for the exemption, had 

failed to file an affidavit of citizenship along with the 

petition, as required by the statute. This Court ruled that 

the affidavit was necessary to the justice court's 

jurisdiction, and that defect was properly reviewable by 

certiorari. See also State v. Justice of the Peace Court 

( 1915) 51 Mont. 133, 149 P. 709; In re Banschbach (1958) , 

133 Mont. 312, 323 P.2d 1112. 

The United States Supreme Court has discussed the 

nature of the type of facts necessary to establish 

jurisdiction. In Noble v. Union River Logging Railroad Co. 

(1893), 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123, the Court 

stated: 

"There is, however, another class of 

facts which are termed quasi 

jurisdictional, which are necessary to be 

alleged and proved in order to set the 

machinery of the law in motion, but 

which, when properly alleged and 

established to the satisfaction of the 

court, cannot be attacked collaterally. 

With respect to these facts, the finding 

of the court is as conclusively presumed 

to be correct as its finding with respect 

to any other matter in issue between the 

parties. Examples of these are the 

allegations and proof of the requisite 

diversity of citizenship, or the amount 

in controversy in a Federal court, which, 

when found by such court, cannot be 

questioned collaterally; . . . the 

existence and amount of the debt of a 

petitioning debtor in an involuntary 

bankruptcy; . . . the fact that there is 

insufficient personal property to pay the 

debts of a decedent, when application is 

made to sell his real estate; . . . the 

fact that one of the heirs of an estate 

had reached his majority, when the act 

provided that the estate should not be 

sold if all the heirs were minors; . . . 
and others of a kindred nature, where the 

want of jurisdiction does not go to the 

subject-matter or the parties, but to a 

preliminary fact necessary to be proven 

to authorize the court to act . . . In 

this class of cases, if the allegation be 

properly made, and the jurisdiction be 

found by the court, such finding is 

conclusive and binding in every 

collateral proceeding. And even if the 

court be imposed upon, by false 

testimony, its finding can only be 

impeached in a proceeding instituted 

directly for that purpose. (Citations 

omitted.) 147 U.S. at 173-174, 13 S.Ct. 

at 273-274, 37 L.Ed. at 126-127. 

The justice court's authority to issue a writ of 

attachment is one of those situations where there are 

conditions precedent to the court's power. Section 

27-18-1501, MCA states: 

"Justice's authority to issue writ. A 

writ to attach the property of the 

defendant may be issued by the justice at 

the time of or after issuing summons and 

before answer, on receiving an affidavit 

by or on behalf of the plaintiff, showing 

the same facts as are required to be 

shown by the affidavit specified in 

27-18-202." 

Section 27-18-202 states in part: 

"Plaintiff's affidavit. When attachment 

of a defendant's property is sought, an 

affidavit must be made by the plaintiff 

or someone in his behalf stating: 

"(1) facts which show the defendant is 

indebted to the plaintiff in the manner 

specified in 27-18-lOl(1). . . " 

The facts required in section 27-18-lOl(1.) must show 

that: 

"Cases in which property may be attached. 

(1) Property may be attached in: 

"(a) an action upon a contract, express 

or implied, for the direct payment of 

money . . . " 

If the necessary jurisdictional facts are present, the 
lower court has jurisdiction over the matter and may issue 

the writ if the defendant fails to show that his property is 

exempted, see section 25-13-61 W b), MCA. 

The general rule is that the inquiry of the reviewing 

court is limited to "the sufficiency of the evidence to 

support the findings" Annot; Existence of Jurisdictional 

Facts found By Inferior Tribunal as Subject of -- Inquiry on 

Certiorari 5 ALR2d 675, at 679. Montana has adopted a 

similar view: 

"Accordingly this court said, . . . 'The 

writ cannot be used to correct errors 

committed in the exercise of 

jurisdiction. * * * If the charges are 

unsupported by the evidence, or the 

findings are contrary to all the 

substantial evidence, or where the 

decision below has no evidence to support 

it, the question then becomes one of law, 

and the evidence may be reviewed to 

determine if such is the fact, but the 

court cannot review the evidence to 

determine the preponderance thereof' * * 

* [I]t is limited in its inquiry to the 

question whether the application is 

properly made, and if so, whether the 

district court or judge exceeded its or 

his jurisdition." (Citations omitted.) 

State ex re1 Mercer v. Woods (1945), 116 

Mont. 533, 155 P.2d 197. 

The issue then becomes; was there a preponderance of 

evidence that a "contract for the direct payment of money" 

was involved to support the attachment? All of the other 

elements appear to be present, but, from a review of the 

record, the alleged contract at issue was clearly not one 

for the direct payment of money, and thus the district 

court's denial of certiorari was in error. 

Respondent argues that the affidavit supporting the 

request for the attachment averred an "indebtedness," and 

that this was sufficient. This argument is wrong; the 

statute is explicit that the contract on which the 
indebtedness is based rnust be for the direct payment of 

money. Additionally, simple averment of a "contract for the 

direct payment of money" in the affidavit accompanying the 

application for a writ of attachment is insufficient. There 

must be other evidence supporting this allegation, and it 

must be apparent that the contact at issue in the underlying 

action is of this type. This question of law determines the 

jurisdiction of the justice court. 

The nature of this determination is illustrated by 

examining the older, and constitutionally inadequate, 

attachment scheme. Newell v. Witwell (1900), 16 Mont. 213, 

40 P. 865, arose under the old attachment system where the 

issuance of the writ was a simple ministerial act. The 

party requesting the writ was required to comply strictly 

with the necessary averment requirements. Once those were 

complied with, the clerk had no choice but to issue the 

writ. Newell, 16 Mont. at 258, 40 P. at 871. That system 

was subject to much abuse and as result this power was put 

in the hands of a judge or a justice of the peace, who, 

presumably, had the expertise to make the legal 

determination required. See, sec. 6 Ch. 299 L. 1977; 

section 27-18-1501, MCA and Mitchell v. W. T. Grant Co. 

(1974), 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406. Thus, 

if the justice court erred in its legal conclusion as to the 

existence of jurisdictional facts, this error is subject to 

review on certiorari. 

The complaint filed by Thiel in the justice court 

alleged: 

I. 

"That he is the owner and operator of 

the Townhouse Motel in Billings, Montana. 
11. 

"That he did, on or about the 11th day of 

October, 1983, rent a room to the 

Defendants who used the name 'John 

Santana . ' 

IV. 

"That, as an implied term of said 

renting, the Defendants were obligated to 

maintain the room in the same condition 

it was in, reasonable wear and tear and 

acts of God alone accepted. 

v. 

"That despite the implied contract 

described herein, the Defendants did 

damage the premises in the amount of ONE 

THOUSAND FIVE HUNDRED ELEVEN DOLLARS AND 

FIFTY CENTS ($1,511.50); that, 

additionally the repair of the room will 

necessitate its remaining vacant for 

seven days, and thus deprive the 

Plaintiff of TWO HUNDRED AND EIGHTY 

DOLLARS ($280.00) in rent." 

Without addressing the correctness of Thiel's argument 

that the room contract gave rise to an "implied contract" 

not to damage the room, we fail to see how it qualifies as 

one for the direct payment of money. To he such a 

contract, the obligation must be an "unconditional and 

absolute obligation to pay money . . . and not . . . 

dependent or contingent upon some other agreement." General 

Finance Co. v. Powell et. a1. (1941), 112 Mont. 535, 118 

P.2d 751. At the time of the request for the writ of 

attachment, Mr. Buffalo's obligation had not been reduced to 

a judgment, and thus was not unconditional and absolute. It 

was not absolutely clear that he was liable, and in any 

event, the damages alleged by Mr. Thiel may have been far in 

excess of any actual damage. These facts were still subject 

to dispute. And, assuming that there was an implied 

contract between Mr. Buffalo and Mr. Thiel, the obligation 

on which the attachment was based was for damage to the 
room, and dependent on the room contract. See also Gibson 

v. Gibson (1960), 137 Mont. 528, 353 P.2d 344 The justice 

court erred in issuing the attachment. It did not have 

before it a case resting on a contract for the direct 

payment of money, and thus was acting without jurisdiction. 

It is this type of jurisdictional fact that is properly 

reviewable on certiorari. The District Court should have 

granted the writ and reviewed the justice court's action. 

Since we reverse and remand on these grounds, we do not 

reach the constitutional issue. 

4 

We concur: 

Chief Justxce