### No. 

### 13554 IN

### THE SUPREME 

### COURT OF THE STATE OF MONTANA 

### 1976

THE 

### STATE OF MONTANA, ACTING BY AND 

### THROUGH 

### THE DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiff and Appellant,

KATHERINE 

### SCRIVANI, etal, Defendant and Respondent.

ORIGINAL PROCEEDING

### : Counsel of Record: For Appellant: Daniel J. 

### Sullivanargued, Helena, Montana For Respondent

### : Stimatz and Engel, Butte, Montana Joseph C. 

### Engel 111 argued, Butte, Montana

Submitted: October 25, 1976 Decided: 

### NOv

## 191976Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. In thiscause defendant Thomas J. Helehan's property interest 

### was condemned by plaintiff and possession taken in October, 1965. InJune, 1976, defendant was awarded $30,866 by a condemnation commission and judgment was entered for that amount plus interest and costs, making a totaljudgment of $87,742.04. Plaintiff sought tohave the judgment amended but 

### was refused. Counsel for defendant then moved the court to order plaintiff tomake 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 filinga supersedeas bond. This was denied by the district court and plaintiff 

### was again ordered tomake the deposit. Plaintiff then, ex parte, secured from this Court an order staying the districtcourt's order. Defendant moved for an adversary hearing which was granted. Such hearing was held, briefs filed by the parties and counsel 

### were heard inoral argument and thematter submitted for decision. While many contentions aremade by plaintiff that the stayorder should remain ineffect, 

### we areconfronted with the statute, section 93-9920, R.C.M. 1947, which provides inpertinent part: "At any 

### timeafter the filingof the preliminary condemnation order or after the report and assessment of the commissioners have been made and filed inthe court, and either before or after appeal from such assessment, or from any other order or judgment inthe proceedings, the court or any judge thereof atchambers, upon application of the plaintiff, shall have power tomake an order that upon payment into court forthe defendant entitled theretoof the amount of compensation claimed by the defendant inhis answer or the amount assessed, either by the commissioners or by the jury, asthe casemay be, the plaintiff be authorized, if already inpossession of the property of such defendant sought tobe appropriated, tocontinue in such possession; or, if not inpossession, that the plaintiffbe authorized to take possession of such property and use and possess the same during thependency and until the finalconclusion 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 tothe ownership of theproperty, may atany time demand and receive upon order of the court, allor any part of themoney so deposited 

## * * * " 

## * 

## * * and provided, further, that the court shall not order the delivery toany defendant of more than seventy-five (75) per cent of themoney 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 tobe approved by the court; torepay tothe 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, inreferring tothis section of our Codes, stated: "By these statutes the plaintiffs are accorded the right of appeal to this court. They must, inorder 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 ismade, the trial courtmust setaside the entireproceedings and restore possession. No method isprovided for a stay of proceedings pending an appeal; in fact, the statuteexpressly declares that none of the proceedings provided forby 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 inthe same manner and with the same effect as if no money had been deposited or security given.' These statutoryprovisions, 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 callsattention to section 93-9905(3), R.C.M. 1947, which provides inpart:

" 

## * * * 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 

### timeand under suchconditions as the court deems proper." As heretofore stated the districtcourt denied a stay tothe Department of Highways. This apparent conflict was recognized by this Court inRobertson v. StateHighway Comm'n, 148 Mont. 275, 281, 282, 420 P.2d 

### 21, where 

### we stated: "A further procedural matter appears. After the 

### writof 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 thisbeing an eminent domain case, see Rule 81) that under Rule 62(e),M.R.Civ.P., no security 

### isrequired 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 ineminent 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 torecord property owners and (2) damages (inverse condemnation) as to the applicants. This conflict, if it be one, may necessarily be involved inthe appeal of the judgment on 

### itsmerits. But, for our purposes here, 

### we indulge inthe presumption of correctness of thejudgment and 

### willnot 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, 123Mont. 115, 208 P.2d 497.)" When thematter came on for hearing on themerits no issue

### was raised in thisregard. See Montana StateHighway Comm'n vs. Robertson & Blossom, 151Mont. 205, 441P.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 tothe amount of the judgment areraised, such as the allowance of of an attorney feewithout a hearing, allowing interest at

### lo%, and allowing a cost billwithout notice. These matters should be heard by the court upon notice and should not be required tobe deposited and become subject towithdrawal.The situation here ismuch likethat inRobertson 

### v. State Highway Comm'n, 148 Mont. 275, 283, 420 P.2d 21, where 

### we held

no interest be deposited. The districtcourt isdirected tomake an amend d 

# P order requiring deposit award.

We concur: 

## LL

Ju 

### tice



## ---------------- sittinwplaceof 

### Mr.

Wesley Castles.