Ball v. Gee, 87-408
| Decision Date | 27 September 1988 |
| Docket Number | No. 87-408,87-408 |
| Citation | 234 Mont. 140,761 P.2d 830 |
| Parties | James W. BALL and Doris E. Ball, Plaintiffs and Respondents, v. Donald GEE a/k/a Norman Jimmy Nanalook, Defendant and Appellant. |
| Court | Montana Supreme Court |
Neil Haight, Montana Legal Services, Helena, for defendant and appellant.
Clary & Clary, R.F. Clary, Jr., Great Falls, for plaintiffs and respondents.
Margaret M. Joyce Johnson and Robert P. Goff, Church, Harris, Johnson & Williams, Great Falls, for amicus curiae.
James W. Ball and Doris E. Ball brought an action pursuant to 1985 MCA in the District Court, Eighth Judicial District, Cascade County, to quiet title on real property based on a tax deed they had procured from the County. In the course of the proceedings, the District Court on May 18, 1987 entered an order that Donald Gee, as the true owner [the statute (section 15-18-401(1)(b) (1985), MCA) ] describes the record owner of the real property when the taxes become delinquent as the "true owner" to deposit in court the amount of $11,041.43 on or before June 10, 1987. No deposit was made by Gee. On August 6, 1987, the District Court entered its decree quieting title to the real property in James W. Ball and Doris E. Ball (purchasers).
The decree is fixed solely upon the court's finding, under Sec. 15-18-402(1) (1985), MCA, that since Gee had not deposited the amount stated, he is "deemed to have waived any defects in the tax proceedings and any right of redemption, and therefore, irrespective of any irregularities, defects, omissions or total failure to observe any of the provisions of the statute of Montana regarding the assessment, levying of taxes or sale of property for taxes" the purchasers were entitled to a decree quieting their title as against Gee.
Gee has appealed to this Court on the grounds that the purchasers improperly claimed items of costs to preserve the property or to make improvements thereon while in their possession. We agree and reverse and remand for further proceedings.
At all times important here, Gee has been a federal prisoner, incarcerated in a prison outside the state of Montana. He filed by mail on May 18, 1987, his handwritten "Answer to Order to Show Cause" in the District Court. He further filed a written affidavit in support of his answer. In his affidavit he stated that he had a tenant on the property who was supposed to pay the property taxes in place of rent; that the purchasers were aware that he was a prisoner at the U.S. Penitentiary in Marion, Illinois; and that he received no notification of the application for tax deed. He also denied the sum the purchasers claimed for preserving or improving the property.
The answer and affidavit were not accompanied by a filing fee. Gee did not appear in person, nor was he represented by counsel at the May 18, 1987 hearing.
In the course of the May 18 hearing, the District Judge noted that since the filing fee was not paid, there was nothing filed from Gee as of that date, but since Gee was acting pro se, the court would give him the benefit of the doubt. However, the court then stated because the filing fee was not paid the answer would not be considered as filed.
The order to show cause and make a deposit was issued to Gee upon the application of the purchasers, supported by an affidavit of James W. Ball, dated April 29, 1987, that the total of sums reasonably paid by purchasers after the date of the tax deed in preserving the property or making improvements was $4,919.18. However at the show cause hearing of May 18, purchasers claimed $8,158.54 as the amount they had expended in preserving the property or making improvements. The claimed amount was supported by exhibit 1, which Mrs. Ball candidly on testimony at the hearing stated included "a refrigerator and a range for the kitchen, cabinets for the kitchen, carpeting and shower cabinets, toilet, the whole works." The exhibit itself includes items for advertising for an application for tax deed, mailing costs, grass mowing costs, and the cost of a title search for the purposes of the quiet title action. While some of these items might have been recoverable as court costs in the event of an eventual judgment...
To continue reading
Request your trial
-
Ball v. Gee
...specifically reserved judgment on the constitutionality of the deposit requirement as applied to the indigent. Ball v. Gee (1988), 234 Mont. 140, 143, 761 P.2d 830, 832. On remand, the District Court held another show cause hearing and ordered Gee to deposit $11,683.23, including $6,009.79 ......
- Seypar, Inc. v. Water and Sewer Dist. No. 363