No. 83-70 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, exrel., 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: LewisE. Brueggemann, Billings, Montana
ForRespondents: ClarenceBelue, Hardin, Montana

- - Submitted: February 16, 1983 Decided: April28, 1983

Filed: 

### APR

## 28

## 1983

### ORDERAND OPINION DENYING WRIT OF SUPERVISORYCONTROL
Mr. Justice John C. Sheehy delivered the Opinion of 

### the Court.
On February 4, 

### 1.983,relators GeorgeW. 

### and Roberta Cady filed in this Court their petition for writ of supervisory control, review or other appropriate relief. In the petition, the relatorsrequested that this Court issue a writ or order (1) 

### declaring the District Court's ejection order removing relators from certainproperty in Big Horn County to be illegal, (2)granting a stayof all further proceedings in the lower court, (3) 

### ord-eringthe 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 theparties to the status

### quoprior 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, asplaintiffs, againstAnne 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 theproperty. 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 defaultunder both contracts for deed,but that for reasons of equity, since unjust enrichment of the defendant Black would occur if forfeiturewere 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 servedby 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 releaseof 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 documentshad 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 contractdocuments. On December 23, 1982, the District Court denied all motions. Notice was given by the clerk of the order denying allmotions 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 supersedeasbond in the sumof $18,000by 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 supersedeasbond 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 

### supersedeasbond. 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 takenby 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 thisCourt. On March 3, 1983, on motion of Anne T. Black, we dismissed the appeal in that case and denied rehearingby our orderofMarch 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.ry1, 1983, and reserved ruling on whether the District Court's ejection order was illegal. That question was deemed submitted on thatdate. 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 theDistrict Court may stay the execution of or any proceedings to enforce a judgment when there is pending a motion under Rule 59, orRule 60. In this case, theDistrictCourt had alreadyruled
on Cad.yls Rule 60 motion, and so Rule 62(b) does not apply. The right of a judgment holder toenforce 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 aftertheentrythereof have a writof execution issued foritsenforcement. A judgment debtor or other party desiring to stay the execution of a judgment ororder of theDistrict Court must proceed under Rule 7 of theMontana Rules of Appellate Civil Procedure. That Ruleprovides thatifan appellant desiresa stay of proceedings, where thecourthas made no such order, he may present totheDistrictCourt 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, thejudgment holder, Anne T. Black, was entitled to enforcement of a judgment by executionunder sections 25-13-101 and 25-13-201, MCA. The District Court followed these statutes, and was authorizedby statutetoorder the deliveryof thepossession of the real and personal property under section 25-13-307, MCA

# .ACCORDINGLY, ITISORDERED: 1. That the petition of the relators for a writ of supervisory control, writ of review or other appropriate relief ishereby denied. 2. That copiesof thisopinion and orderbe servedupon counsel of recordby the clerkof thiscourt. DATED this day of April, 1983.We Concur:

Chief Justice