                              No.     93-074
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1993




WILLIAM w. ROCHE,
           Petitioner and Appellant,
     -v-
NANCY SABO, Justice of the Peace,
Ravalli County,
           Respondent and Respondent,
     and
PATRICK HOWARD,
           Intervenor.




APPEAL FROM:   District Court of the Twenty First Judicial District,
                In and for the County of Ravalli,
                The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                  William W. Roche,    Grantsdale, Montana (pro se)
           For Respondent:
                  George C. Corn, Ravalli County Attorney, Hamilton,
                  Montana; Patrick R. Howard, Hamilton, Montana (pro
                  se)


                                    Submitted on Briefs:    May 27, 1993
                                                 Decided:   June 10, 1993
Justice James C. Nelson delivered the Opinion of the Court.

      This is an appeal from the Fourth Judicial District, Ravalli
County, wherein the District Court vacated a Peremptory Writ of
Mandamus dated May 29, 1992: dismissed the "Complaint at Law for a
Peremptory Writ of Mandamus" of William W. Roche, Petitioner and
Appellant herein; awarded attorney fees to lntervenor            Patrick
Howard; and remanded to the Justice Court for further proceedings.
We affirm.
      William    W.    Roche   was   a   defendant   in     an   unlawful
detainer/eviction     case in the Justice Court of the Hon. Nancy Sabo,
Ravalli County Justice of the Peace.
      After a bench trial, the Justice Court found against Mr. Roche
and ordered his eviction for nonpayment of rent.          Mr. Roche filed
his Notice of Appeal from the Justice Court judgment, but failed to
perfect the appeal by filing the statutory undertaking prescribed
by 5 25-33-201, MCA.      The appeal was subsequently dismissed.
      Mr. Roche then filed a "Complaint at Law for a Peremptory Writ
of   Mandamus"   in the District Court.          Patrick     Howard,   the
plaintiff/landlord in the Justice Court action, successfully moved
to intervene in the District Court case, and, in due course, moved
for judgment on the pleadings.       Judge Sabo joined in the motion.
The District Court, stating that it considered matters outside the
pleadings,   treated the intervener's     motion as one for summary
judgment and entered its Findings of Fact, Conclusions of Law and
Order which found, inter alia, that Mr. Roche's approach to the
case was designed to frustrate the lawful, final judgment of the

                                     2
        Furthermore,               with          respect          to     appeals          from       Justice        Court,

Section        25-33-101,          MCA,          provides:

        Exclusive   Method   of   Review. A judgment or order in a
        civil   action, except when expressly made final by this
        code, may be reviewed as prescribed in this chapter and
        not   otherwise. A party aggrieved may appeal in the cases
        prescribed   in  this   chapter.  (Emphasis added.)

Mr.     Roche's           exclusive            method          of      review        of     the        Justice          Court

judgment       was    by    way        of     appeal        and     trial    de   nova          in    District          Court.

In     failing       to     properly          exercise            that    right      of     appeal,          he     is     not

entitled       to     use    mandamus            as     a     substitute.

        Finally, we              find       no    abuse       of       discretion      by       the    District          Court

awarding            Intervener                Howard           his        attorney              fees      under            the

circumstances          of        this       case.        The        District      Court         found     that:

        Mr. Roche's approach to this case has been one designed
        to frustrate the lawful judgment of the Justice Court and
        prolong these proceedings for his personal financial gain
        and with complete disregard for the law and proper
        procedure.   In such a case an award of attorney fees and
        costs is proper and fitting.

In     Christopherson            v.      State         (1987),         226   Mont.         350,       355,        735     P.2d

524,    527,     we       upheld        the      District         Court's      award       of     attorney         fees     to

an     intervener           in     a     mandamus           action       pursuant      to       the    Court's          equity

powers.          Similarly,             we       find       that       the   award        of     attorney          fees     is

supported       by     the       record          and    was         within     the     equity          powers       of     the

Court     in    this       case.

        Affirmed.




We     Concur:
                                          June 10, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


William W. Roche
604 N. Third St.
Hamilton, MT 59840


George H. Corn
County Attorney
Ravalli County Courthouse, Box 5008
Hamilton, MT 59840

Mr. Patrick R. Howard
361 Cartwright Way
Hamilton, MT 59840

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE ,OF MONTANA
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