Kootenai Corp. v. Dayton, 14486

Docket NºNo. 14486
Citation36 St.Rep. 1785, 601 P.2d 47, 184 Mont. 19
Case DateOctober 11, 1979
CourtUnited States State Supreme Court of Montana

Page 47

601 P.2d 47
184 Mont. 19
The KOOTENAI CORPORATION, a Montana Corporation, Plaintiff
and Respondent,
Wayne L. DAYTON and Jerome F. Borkoski, Defendants and Appellants.
No. 14486.
Supreme Court of Montana.
Submitted Sept. 18, 1979.
Decided Oct. 11, 1979.

[184 Mont. 20] Milodragovich, Dale & Dye, Harold V. Dye, argued, Missoula, for defendants and appellants.

Robert B. Brown, argued, Stevensville, for plaintiff and respondent.

Page 48

HASWELL, Chief Justice.

Defendant, Jerome F. Borkoski, appeals from a denial of a motion to set aside a default judgment.

On March 27, 1974, Wayne Dayton agreed to buy from the Kootenai Corporation (Corporation) a certain parcel of real estate in Ravalli County, Montana. The contract provided that payment for the land would be made over several years and when the full purchase price was paid title would pass to the buyer. The transfer of this property also included the transfer of an on-premise beer license to the buyer. The agreement provided that in the event of a default by the buyer that all of Buyer's interest in the property [184 Mont. 21] would terminate and that the Buyer "shall reassign the beer license."

On December 30, 1974, this contract was assigned by Wayne Dayton to Jerome F. Borkoski. At the bottom of the last page of the assignment of contract is an acceptance of the assignment signed by the President of the Corporation.

On October 13, 1977, the defendant Borkoski was served with a notice of default and cancellation of contract. The reason given for the notice was that Borkoski had allowed the on-premises beer license to be revoked.

On June 24, 1978, Borkoski was served with a summons and a complaint. The complaint alleged that the corporation "is the owner and is entitled to the immediate possession of certain described real property . . . " It then continued:

"That the Defendant Wayne L. Dayton surrendered deed to the above-described premises to the plaintiff, which deed, conveying his interest in the premises, was recorded on the 26th day of May, 1978, in Book 147 of Deeds at Page 514, Records of Ravalli County, Montana. That the Defendant, Jerome F. Borkoski, prior to the 26th day of May, 1978, entered and took possession of the said premises peacefully, without right to do so, and from and after the 26th day of May, 1978, holds and keeps possession of the same unlawfully and by force, contrary to the form of the statute in such case made and provided."

The complaint further alleged that the plaintiff was "deprived of the rents, issues and profits of said land and premises ever since the 26th day of May, 1978, to its damage in the sum of $20.00 per day . . . " and prayed for restitution and treble damages.

The summons required that the defendants appear in the District Court on June 30, 1978. The summons also stated that the action was one for forcible detainer of the premises. Borkoski did not appear in court on that date and judgment was entered against him on the same day.

On July 14, 1978, Borkoski, through his attorney, filed a motion [184 Mont. 22] to set aside judgment by default. The motion alleged that the failure of Borkoski to appear in court on June 30 was due to excusable mistake, and that the action had not been properly brought under the unlawful detainer statute, because the parties were not landlord and tenant. An affidavit attached to this motion stated Borkoski had failed to appear in court on June 30 for the following reasons:

"(The defendant) was under the impression that it was not necessary for him to go to Court unless the Defendant Wayne L. Dayton was also served with a Summons ordering him to go to Court at the same time. Your Affiant was told by Mr. Dayton that he had not been served with process ordering him to appear on June 30, 1978, and assumed that it was not necessary for your Affiant to do so. Your Affiant further telephoned the Clerk of Court's office and was informed that the above mentioned matter was not on the calendar for June 30, 1978, and therefore assumed that it was not necessary for him to appear in Court on that date."

The affidavit further stated that Borkoski was "informed and believes that the Plaintiff contends that (Borkoski) has forfeited his rights under the Contract . . . because (Borkoski) has allowed a certain . . . liquor license to lapse."

Page 49

On July 28, there was a hearing on the motion. The only person questioned during testimony was Mr. Brown, the attorney for the corporation. During this testimony the original contract for deed, the assignment of this contract to Borkoski, and the notice of default were all introduced into evidence.

At the end of the hearing the district judge denied Borkoski's motion. It is from this denial that defendant appeals.

The issues on appeal are as follows:

I. Whether the summary proceeding of forceful detainer may be used to recover property sold under contract for deed?

II. Whether the District Court judge abused his discretion in not setting aside the judgment by default?


[184 Mont. 23] Defendant's central contention is that the District Court erred in allowing the plaintiff to bring an action for forcible detainer rather than requiring that the action be one for ejectment. Defendant contends that an action for ejectment would have allowed him twenty days to answer under Rule 12(a), M.R.Civ.P. As it occurred, the default was entered only six days after the summons was served in accordance with the forcible detainer statute. Cited in support of the proposition that the plaintiff is barred from bringing this action under the forcible detainer statute is Kransky v. Hensleigh (1965), 146 Mont. 486, 409 P.2d 537. In Kransky this Court said "Whenever the unlawful detainer statutes, § 93-9701, R.C.M.1947, et seq. (now section 70-27-101, MCA, et seq.), are brought into operation it is the rule that such an action may only prevail where the relation of landlord-tenant exists." 146 Mont. at 490, 409 P.2d at 539.

In the present case it is clear that a landlord-tenant relationship did not exist. The legal relationship was contractual. It must be noted, however, that Kransky is limited to the unlawful detainer statute, section 70-27-108, MCA, which by its language specifically provides that the action may only be brought against a tenant. The present case was brought as a forcible detainer action under section 70-27-103, MCA. A reading of this statute will reveal that a landlord-tenant relationship is not required in order to bring this action. This section states in part:

"Every person is guilty of a forcible detainer who either:

"(1) by force or by menaces and threats of violence unlawfully...

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11 cases
  • Davis v. Westphal, DA 17-0003
    • United States
    • United States State Supreme Court of Montana
    • November 8, 2017
    ...56 P. 422, 423 (1899) ; 25 Am. Jur. 2d Ejectment§ 19 (2014) ; 28A C.J.S. Ejectment§§ 1 - 3 and 5 - 6 ; accord, Kootenai Corp. v. Dayton, 184 Mont. 19, 24, 601 P.2d 47, 49-50 (1979) (distinguishing common 405 P.3d 83law ejectment from statutory forcible detainer action); Miner v. Cook, 87 Mo......
  • Bartell v. Zabawa, DA 07-0698.
    • United States
    • United States State Supreme Court of Montana
    • June 10, 2009
    ...the judgment would affect the defendant injuriously, and (4) whether the defendant has a meritorious defense. Kootenai Corp. v. Dayton, 184 Mont. 19, 26, 601 P.2d 47, 51 ¶ 15 Most of the District Court's analysis focused on the issue of excusable neglect with a summary evaluation of the rem......
  • Roberts v. Empire Fire and Marine Ins. Co., 96-127
    • United States
    • United States State Supreme Court of Montana
    • September 11, 1996
    ...Lords, 688 P.2d at 293 (citing McClurg v. Flathead Cty. Comm'rs (1980), 188 Mont. 20, 610 P.2d 1153; Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 601 P.2d 47; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d The record in the present case indicates that the summons, complaint, and first di......
  • Lords v. Newman, 84-141
    • United States
    • United States State Supreme Court of Montana
    • September 19, 1984
    ...of discretion by the trial court need be found before a decision can be reversed. Language from our decisions in Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 601 P.2d 47, and Little Horn State Bank v. Real Bird (1979), 183 Mont. 208, 598 P.2d 1109, is cited in support of their The respond......
  • Request a trial to view additional results

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