Hadford v. Hadford, 80-268
| Decision Date | 27 August 1980 |
| Docket Number | No. 80-268,80-268 |
| Citation | 189 Mont. 329,615 P.2d 920 |
| Parties | Wendell D. HADFORD, Plaintiff and Appellant, v. Elizabeth M. HADFORD, Defendant and Respondent. |
| Court | Montana Supreme Court |
Appellant Wendell D. Hadford applies to this Court for relief from an order of the District Court, dated July 23, 1980, requiring appellant to file in the District Court within five days of the order a supersedeas bond and also providing that if he failed to file the supersedeas bond, a motion to dismiss the appeal would be granted.
The original action is cause no. 21177, pending in the District Court of the Eighteenth District, for Gallatin County. Wendell D. Hadford, as plaintiff, was ordered in a judgment entered by the District Court on April 29, 1980, to execute a deed to the defendant, Elizabeth M. Hadford, to certain real property in Bozeman, Gallatin County, and a bill of sale for a laundromat situated in that city, to pay Elizabeth M. Hadford $3,554.44 for delinquent support payments for children, and to pay attorney fees. Wendell Hadford filed his notice of appeal on May 21, 1980. On July 9, 1980, Elizabeth Hadford moved to dismiss the appeal for the reason that Wendell had failed to file an undertaking or supersedeas bond in connection with his appeal. On July 17, 1980, an undertaking for costs of appeal was filed by Wendell but no supersedeas bond has been furnished by him.
Elizabeth filed her motion to dismiss the appeal because a supersedeas bond had not been filed nor had the deed been executed within the ten days required in the original District Court order. Wendell thereupon filed his objections to the motion to dismiss and applied to the District Court for a stay of judgment pursuant to the Rule 7(a), M.R.App.Civ.P.
It was after these motions that the District Court entered its order of July 23, 1980, requiring the appellant to file a supersedeas bond on the penalty of having his appeal to this Court dismissed after five days.
The single issue raised is whether the District Court has the power to dismiss the appeal because the appellant has not filed a supersedeas bond. Resolution of the issue requires an examination of the provisions of the Montana Rules of Appellate Civil Procedure respecting supersedeas bonds.
Under Rule 4(a), M.R.App.Civ.P., an appeal is taken by filing the notice of appeal in the District Court. It is further stated in that rule that the failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal.
Under the Montana Rules of Appellate Civil Procedure, therefore, the only jurisdictional step required of an appellant to vest the Supreme Court with authority in the cause is the filing of the notice of appeal. By virtue of the same rule, the failure to take any other step in connection with the appeal, which would include the filing of a supersedeas bond, is subject only to such action as the Supreme Court may take. It is exclusively in the province of the Supreme Court under Rule 4(a), M.R.App.Civ.P., as to whether an appeal should be dismissed for failure to take additional steps, once jurisdiction of the Supreme Court is vested by the filing of the notice of the appeal.
In this case the District Court was operating under Rule 7, M.R.App.Civ.P. That rule generally relates to the powers of the District Court with respect to undertakings and supersedeas bonds after a judgment has been entered in the District Court....
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State v. Todd
...if a motion to dismiss an appeal is otherwise appropriate, the motion should be filed in the district court. In Hadford v. Hadford (1980), 189 Mont. 329, 332, 615 P.2d 920, 921, after the appellant filed notice of appeal from a district court order to the Supreme Court, the respondent moved......