No. 83-70 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, ex rel., 

GEORGE W. CADY and ROBERTA CADY, 

husband and wife, 

Petitioners, 

THE DISTRICT COURT OF TEE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF MONTANA, 

IPJ AND FOR THE COUI'JTY OF BIG HORN P,ND THE 

IiONORABLE ROBERT H . WILSON, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioners: 

Lewis E. Brueggemann, Billings, Montana 

For Respondents : 

Clarence Belue, Hardin, Montana 

- - 

Submitted: February 16, 1983 

Decided: April 28, 1983 

Filed: APR 2 8 1983 
ORDER AND OPINION 

DENYING WRIT OF SUPERVISORY CONTROL 

Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On February 4, 1.983, relators George W. and Roberta Cady 

filed in this Court their petition for writ of supervisory 

control, review or other appropriate relief. In the 

petition, the relators requested that this Court issue a writ 

or order (1) declaring the District Court's ejection order 

removing relators from certain property in Big Horn County to 

be illegal, (2) granting a stay of all further proceedings in 

the lower court, (3) ord-ering the return to the relators of 

all properties involved in lower court action pending the 

outcome of an appeal then before this Court, and, (4) 

restoring the parties to the status quo prior to the ejection 

order of February 1, 1983. 

Underlying the petition of the relators was an action 

that was pending in the District Court, Thirteenth Judicial 

District, Big Horn County, brought by George W. and Roberta 

Cady, as plaintiffs, against Anne T. Black and Big Horn Bank, 

as defendants. Plaintiffs claim that Anne T. Black had 

breached certain contracts with the plaintiffs, and that the 

bank as escrow holder was also responsible. Defendants 

denied the Cady's allegations, and Anne T. Black claimed a 

default under the contract which entitled her to repossess 

the property. 

It appears that Anne T. Black had sold to the Cadys a 

cafe, laundromat, residence and other real property located 

at Lame Deer, Montana, under two contracts for deed in 1975 

and 1976. 
On August 13, 1982, the District Court signed a 

judgment, entered on August 16, 1982, to the effect that the 

plaintiffs were in default under both contracts for deed, but 

that for reasons of equity, since unjust enrichment of the 

defendant Black would occur if forfeiture were applied, the 

District Court relieved the Cadys from forfeiture granting 

them six months from July 27, 1982, in which to pay the 

remaining sums due and owing under the contracts for deed. 

On September 23, 1982, the District Court entered 

judgment in favor of Big Horn Bank granting the bank 

$6,394.60 attorney fees, with interest at 10 percent per 

annum from date. Notice of the entry of this judqment was 

served by the clerk on September 23, 1982. 

On November 8, 1982, the District Court amended the 

judgment of default and relief from forfeiture by granting 

Anne T. Black attorney fees in the amount of $5,000. Notice 

of the entry of this amendment to judgment was served on 

November 9, 1982, by the clerk. 

On November 17, 1982, upon motion of the Cady's for the 

withdrawal of the contract documents from the office of the 

Clerk of the Court, "for the purpose of obtaining a new V.A. 

loan to pay off properties and for other reasons" the court 

ordered the release of the documents to the Cadys. 

On December 8, 1982, Cadys made a motion to set aside 

and reopen the cause or for a new trial under Rule 60(b), 

M.R.Civ.P., on the ground that new evidence had been 

discovered which affected the cause. The new evidence 

consisted of a report from a handwriting expert to the effect 

that the contract documents had been altered. 
Black filed responses objecting to the motion to reopen 

the cause, and asking for damages and punitive damages for 

falsity in the allegations respecting the contract documents. 

On December 23, 1982, the District Court denied all 

motions. Notice was given by the clerk of the order denying 

all motions on December 28, 1982. 

On January 3, 1983, the Cadys filed their notice of 

appeal "from the order denying plaintiffs' motion for a new 

trial entered in this action on the 23rd day of December, 

1982. I' 

On January 6, 1983, Anne T. Black appealed from the 

order denying her motion for damages and punitive damages 

under the order of December 23, 1-982. 

On January 28, 1983, the District Court entered an order 

staying execution of its amended judqment upon the filing of 

a supersedeas bond in the sum of $18,000 by the Cadys. 

On February 1, 1983, the District Court entered its 

order declaring the interest of the Cadys under both 

contracts forfeited authorizing the bank as escrow agency to 

deliver to Anne T. Black the escrow deeds to said property 

and ordering the Rosebud County Sheriff to enter the premises 

and eject every person holding the same adversely to Anne T. 

Black and to restore Anne T. Black to possession. 

The Rosebud County Sheriff made his return to the 

ejection order, stating that he had served individual copies 

of the said order and ejected all persons from the premises 

restoring Anne T. Black to the same. 

Although a copy of a supersedeas bond is included in the 

exhibits attached to relators' petition for supervisory 

control, no supersedeas bond was filed with the District 
Court or appears in the court file. The District Court has 

never approved a supersedeas bond. 

From the foregoing, it should be clear that no appeal 

was taken by the Cadys from the District Court judgment of 

August 13, 1982, nor from the subsequent amendments to that 

judgment. Each of the appeals taken by the Cadys and by Anne 

T. Black related to the order of the District Court denying 

Cadys' motion to reopen the case and Black's motion for 

damages and punitive damages. 

Both appeals were handled by us in cause no. 83-42 

before this Court. 

On March 3, 1983, on motion of Anne T. Black, we 

dismissed the appeal in that case and denied rehearing by our 

order of March 24, 1983. 

In this cause, on February 10, 1983, we entered an order 

which granted a stay of all further proceedings in the 

District Court, denied without prejudice petitioners prayer 

that all properties be returned to them, denied their prayer 

that all parties be returned to their respective positions 

and conditions prior to the ejection order of Februa.ry 1, 

1983, and reserved ruling on whether the District Court's 

ejection order was illegal. That question was deemed 

submitted on that date. 

Our examination of the court file and the records in 

this cause reveal that the order of ejectment issued by the 

District Court on February 1, 1983, in this case was not 

illegal, null or void. 

Rule 62(b), M.R.Civ.P., provides that the District Court 

may stay the execution of or any proceedings to enforce a 

judgment when there is pending a motion under Rule 59, or 
Rule 60. In this case, the District Court had already ruled 

on Cad.yls Rule 60 motion, and so Rule 62(b) does not apply. 

The right of a judgment holder to enforce a judgment is 

set forth in section 25-13-101, which provides that a party 

in whose favor judgment is given may at anytime within six 

vears after the entry thereof have a writ of execution issued 

for its enforcement. 

A judgment debtor or other party desiring to stay the 

execution of a judgment or order of the District Court must 

proceed under Rule 7 of the Montana Rules of Appellate Civil 

Procedure. That Rule provides that if an appellant desires a 

stay of proceedings, where the court has made no such order, 

he may present to the District Court and secure its approval 

of a. supersedeas bond. In this case, the District Court 

fixed the amount of such supersedeas bond in the sum of 

$18,000. However, no such bond was ever presented to the 

District Court for approval prior to the issuance of the 

ejection order. Therefore, on February 1, 1983, the judgment 

holder, Anne T. Black, was entitled to enforcement of a 

judgment by execution under sections 25-13-101 and 25-13-201, 

MCA. The District Court followed these statutes, and was 

authorized by statute to order the delivery of the possession 

of the real and personal property under section 25-13-307, 

MCA . 

ACCORDINGLY, IT IS ORDERED: 

1. That the petition of the relators for a writ of 

supervisory control, writ of review or other appropriate 

relief is hereby denied. 

2. That copies of this opinion and order be served upon 

counsel of record by the clerk of this court. 

DATED this day of April, 1983. 
We Concur: 

Chief Justice