No. 13554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 76 

THE STATE OF MONTANA, ACTING BY 

AND THROUGH THE DEPARTMENT OF 

HIGHWAYS OF THE STATE OF MONTANA, 

Plaintiff and Appellant, 

KATHERINE SCRIVANI, et al, 

Defendant and Respondent. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Appellant: 

Daniel J. Sullivan argued, Helena, Montana 

For Respondent : 

Stimatz and Engel, Butte, Montana 

Joseph C. Engel 111 argued, Butte, Montana 

Submitted: October 25, 1976 

Decided : NOv 19 1976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

In this cause defendant Thomas J. Helehan's property 

interest was condemned by plaintiff and possession taken in 

October, 1965. In June, 1976, defendant was awarded $30,866 

by a condemnation commission and judgment was entered for that 

amount plus interest and costs, making a total judgment of 

$87,742.04. Plaintiff sought to have the judgment amended 

but was refused. Counsel for defendant then moved the court 

to order plaintiff to make a deposit into court of the amount 

of the award and judgment, which was granted by the district 

court. Plaintiff filed notice of appeal and applied for a stay 

upon filing a supersedeas bond. This was denied by the district 

court and plaintiff was again ordered to make the deposit. 

Plaintiff then, ex parte, secured from this Court an 

order staying the district court's order. Defendant moved for 

an adversary hearing which was granted. Such hearing was held, 

briefs filed by the parties and counsel were heard in oral argument and the matter submitted for decision. 

While many contentions are made by plaintiff that the 

stay order should remain in effect, we are confronted with the 

statute, section 93-9920, R.C.M. 1947, which provides in pertinent 

part : 

"At any time after the filing of the preliminary 

condemnation order or after the report and assessment of the commissioners have been made and filed 

in the court, and either before or after appeal 

from such assessment, or from any other order or 

judgment in the proceedings, the court or any judge 

thereof at chambers, upon application of the plaintiff, shall have power to make an order that upon 

payment into court for the defendant entitled thereto of the amount of compensation claimed by the 

defendant in his answer or the amount assessed, 

either by the commissioners or by the jury, as the 

case may be, the plaintiff be authorized, if already 

in possession of the property of such defendant 

sought to be appropriated, to continue in such possession; or, if not in possession, that the plaintiff 
be authorized to take possession of such property 

and use and possess the same during the pendency 

and until the final conclusion of the proceedings 

and litigation, and that all actions and proceedings against the plaintiff on account thereof be 

stayed until such time * * *. 

" * * * the defendant entitled thereto, if there 

be no dispute as to the ownership of the property, 

may at any time demand and receive upon order of 

the court, all or any part of the money so deposited * * * 

" * * * and provided, further, that the court shall 

not order the delivery to any defendant of more 

than seventy-five (75) per cent of the money deposited on his account except upon posting of bond 

by such defendant equal to the amount in excess of 

seventy-five (75) per cent, with sureties to be 

approved by the court; to repay to the plaintiff 

such amounts withdrawn as are in excess of his final 

award in the proceedings." 

This Court in State v. Bradshaw Land & Livestock Co., 99 

Mont. 95, 103, 43 P.2d 674, in referring to this section of our 

Codes, stated : 

"By these statutes the plaintiffs are accorded 

the right of appeal to this court. They must, 

in order to gain possession, pay the amount of 

the compensation and damages awarded into court. 

If they do not pay the amount of the judgment 

within thirty days, and a showing of nonpayment 

is made, the trial court must set aside the 

entire proceedings and restore possession. No 

method is provided for a stay of proceedings 

pending an appeal; in fact, the statute expressly 

declares that none of the proceedings provided 

for by statute shall operate as a stay of proceedings. It is expressly provided that the plaintiffs, 

by payment into court of the amount assessed, 'shall 

not be thereby prevented or precluded from appealing from such assessment, but may appeal in the 

same manner and with the same effect as if no 

money had been deposited or security given.' These 

statutory provisions, if valid, are conclusive of 

the right of the plaintiffs to appeal." 

The Department of Highways contends that section 93-9917, 

R.C.M. 1947, is authority for a stay of the judgment, while defendant calls attention to section 93-9905(3), R.C.M. 1947, which 

provides in part: 

" * * * Such appeal does not stay any further 

proceedings under this chapter, except that the 

district court on motion or ex parte may grant a 

stay for such period of time and under such 
conditions as the court deems proper." 

As heretofore stated the district court denied a stay to the 

Department of Highways. 

This apparent conflict was recognized by this Court 

in Robertson v. State Highway Comm'n, 148 Mont. 275, 281, 282, 

420 P.2d 21, where we stated: 

"A further procedural matter appears. After the 

writ of execution issued, respondents filed a 

notice of appeal and perfected their appeal. Respondents urge that this stays the judgment under 

R.C.M. 1947, 5 93-8011. Respondents did not file 

a bond, asserting that even though such a bond is 

required under section 93-8011, (and this being an 

eminent domain case, see Rule 81) that under Rule 

62(e), M.R.Civ.P., no security is required when 

the State is the appellant. There is seemingly a 

conflict here between the Rules of Civil Procedure, 

Rule 62(e) and section 93-8011, whether security 

is required in eminent domain appeals. However, 

here again comes the conflict between the applicants' 

position that this is an eminent domain proceeding 

in its entirety and that of the respondents who 

would divide the case; that is, (1) eminent domain 

as to record property owners and (2) damages (inverse condemnation) as to the applicants. This 

conflict, if it be one, may necessarily be involved 

in the appeal of the judgment on its merits. But, 

for our purposes here, we indulge in the presumption 

of correctness of the judgment and will not permit 

a collateral attack. (See generally 30 C.J.S. 

Eminent Domain § 326, pp. 195-198; Thompson v. 

Chicago, B. & Q. R. Co., 78 Mont. 170, 253 P. 313; 

Mitchell v. Garfield County, 123 Mont. 115, 208 

P.2d 497.)" 

When the matter came on for hearing on the merits no issue was 

raised in this regard. See Montana State Highway Comm'n vs. 

Robertson & Blossom, 151 Mont. 205, 441 P.2d 181. 

It is our opinion that the Department of Highways must make 

the deposit of the award granted by the commissioners. However, 

certain questions as to the amount of the judgment are raised, 

such as the allowance of of an attorney fee without a hearing, 

allowing interest at lo%, and allowing a cost bill without notice. 

These matters should be heard by the court upon notice and should 

not be required to be deposited and become subject to withdrawal. 
The situation here is much like that in Robertson v. State 

Highway Comm'n, 148 Mont. 275, 283, 420 P.2d 21, where we held 

no interest be deposited. 

The district court is directed to make an amend d P 

order requiring deposit 

award. 

We concur: LL 

Ju tice 

---------------- 

sittinwplace of Mr. 

Wesley Castles.