No. 84-30 INTHE SUPREMECOURTOF THE STATEOF MONTANA

MYRON BUFFALO, Plaintiff andAppellant,

JERRYTHIEL, JIMNIXON, inhis capacity asConstable of Yellowstone County,and JANET ESCHLER, Justice of the Peace,Defendants and Respondents.

APPEAL FROM: DistrictCourt of theThirteenth JudicialDistrict, Inand for the County of Yellowstone, The HonorableRobert

### H. Wilson,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: D. Michael Eakin argued,Montana Legal Services, Billings,Montana For Respondents: Radovich LawFirm;GeorgeT. Radovich argued forThiel,Billings,Montana Harold Kanser CountyAttorney, Billings, Montana David

### W. Hoefer argued forNixon & Eschler, Deputy CountyAttorney,Billings, Montana

Submitted: October 9,1984 Decided: November 15,1984

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Zourt

# . 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 atthe 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 thejustice court against all persons present in the motel room. The complaint alleged that the defendants were liable for the damage on an implied contractbasis. They were alsocharged criminally inthematter. 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 thatsame day. On October 12, the record title of the pickup truck

was in the name of Mr. Buffalo's wife, AntoinetteMartinez. The originalcomplaint of October 12, failed toname 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 atthat hearing to defend against the attachment, but Mr. Theilmoved that the court continue the hearing because i4s. Martinez had notyetbeen served. The hearingwas continued for four days and Ms. Martinez was served. Atthe hearing, Mr. Buffa10 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 pickupwas exemptbecause itwas partof hismaritalestate, and essentialtohisemployment. Thejustice court took the matter under advisement. On October 21, AntoinetteMartinez conveyed titleof thepickup totheplaintiff,Mr. Buffalo. Five weeks later the justice court ruled that the attachmentwould continue during thependency of the action. During allof thistimethepickup was in thepossession of theYellowstoneCounty SheriffIsoffice. 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 thedistrictcourt toreview 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 courtruled: "Itappearing thatanyrulingby thisCourt 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, citingthefollowing issuesfor 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 ofcertiorari? (3) Was the justice court acting within its jurisdiction? (4)Was theprejudgment attachment statute applied in

anunconstitutionalmanner? Certiorari, also called the writ of review, is provided forby section27-25-102, MCA, statinginpertinent part: "A writof reviewmay be grantedby

# . . . (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. Thewritissues from the superior court tothelower court totransmit therecord for review. Thepurpose of thewritis todeterminewhether the lower court was acting within its jurisdiction, and to control the action of that court to keep it within those bounds. 14Am.Jur.2d Certiorari section2. The writcannot be used tocorrect errors within the lower court's jurisdiction, State ex rel. Mercer v. Woods (1945), 116Mont. 533, 155P.2d 197, 14Am.Jur.2d Certiorari section 10. Inthissense, the lack of jurisdictionmust 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, ithasthepower todecideerroneouslyaswell

as correctly. Johnston v. Marsh (3rd Cir. 1955), 227 F.2d528. If an erroneous decision ismade 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. ComincoAmer. Inc. v. Dist. Ct. (1966), 147Mont. 412, 412P.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. 14Am.Jur.2d Certiorari section 10. This Court has held that constitutional errorsmay be reviewed by 

### awrit 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 

### aparticular 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. InWhite v. Corbett (1935), 101Mont. 1,52 P.2d 156, this Court discussed the effect of conditions precedent to jurisdiction. There,we held that a justice courtmust 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. ThisCourt 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)

## , 133Mont. 312, 323P.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), 147U.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 tobe correctas 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 aFederal 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 allegationbe 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 justiceat the time of or after issuing summons and before answer, on receiving an affidavit by or on behalf of theplaintiff, showing the same facts as are required to be shown by the affidavit specified in 27-18-202." Section 27-18-202 states inpart: "Plaintiff's affidavit. When attachment of a defendant's property is sought, an affidavit must be made by the plaintiff or someone in hisbehalf 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 inwhich 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 arepresent, the

### lower court has jurisdiction over the matter and may issue thewrit if the defendant fails to show thathisproperty is exempted, see section 25-13-61 b), MCA. 

# W 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 similarview: "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 decisionbelow 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. 533,155P.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 theindebtedness 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 lawdetermines 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. "Thathe 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 theroom, and dependent on the room contract. See alsoGibson

v. Gibson (1960), 137Mont. 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 theconstitutional issue.

4

Weconcur:

Chief Justxce