                               No. 8 5 - 5 2 0
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1986




JESSE A. TOAVS,
                Plaintiff and Appellant,


BILLINGS FEDERAL CREDIT UNION,
CLINTON VAN ATTA,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                Jesse A. Toavs, pro se, Billings, Montana

         For Respondent:
                Herndon, Harper,   &   Munro; Scott H. Stanaway, Billings,
                Montana




                                       Submitted on Briefs: March 21, 1 9 8 6
                                         Decided: June 5, 1 9 8 6


Filed:




                                       Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     Jesse Toavs appeals the order of the District Court,
Thirteenth Judicial District granting summary judgment for
the defendants and respondents LaBonnie Realty and others.
We affirm the order granting summary judgment.
     Three issues are presented for our review:
     1.     Whether   there   is    any   genuine   issue   as   to   any
material fact within the meaning of Rule 56 (c), M.R.Civ.P.
that the appellant received notice of the Credit Union's
Motion for Summary Judgment;
     2.     Whether or not there is a genuine issue as to any
material fact that a mechanic's lien filed by the appellant
on December 6, 1984, with the County Clerk and Recorder of
Yellowstone County, Montana is invalid; and
     3.     Whether there is a genuine issue of material fact as
to whether the appellant unlawfully detained the property and
thereby damaged,the Credit Union to the extent awarded by the
District Court.
     The Billings Federal Credit Union loaned Robert and
Virginia Bowman $57,000.00 to improve some real property in
Billings.     In the fall of 1984, the loan approached default
and the Bowmans executed a Warranty Deed dated October 19,
1984 to the Credit Union, conveying the property to the
Credit Union.     On October 19, 1984,the Credit Union hired an
appraiser who     notified    the    Credit Union     that Toavs was
occupying the property.       The Credit Union sent by certified
mail a letter dated October 31, 1984 to Toavs instructing him
to leave the property.         After receiving the letter Toavs
inquired about purchasing the property.             He applied for a
loan from the Credit Union, but was rejected because he could
not substantiate adequate income.
     On December 6, 1984, Toavs filed a mechanic's lien of
$6,746.00   on the property with the Clerk and Recorder of
Yellowstone County, but neglected to serve a copy of the
mechanic's lien upon the Credit Union.           No one at the Credit
Union had given Toavs permission to work on the property.
The Credit Union had never received a bill for materials or
labor expended on the property.
     On April 16, 1985, the Credit Union served, through the
constable of the Billings Justice Court, a second notice to
Toavs to vacate.    On April 18, 1985, Toavs filed an action in
District Court with the mechanic's lien as its basis and
claiming that he had an agreement with Bowmans to purchase
the property.     Toavs did not respond to discovery requests.
The Credit Union moved for summary judgment which was granted
following    a   hearing   at   which    Toavs    failed   to   appear.
Meanwhile, Toavs had filed a petition in bankruptcy in the
United States Bankruptcy Court.         By order dated February 1,
1986, that court lifted its previous stay on the execution of
the summary judgment.
     The first issue presented concerns whether there is a
contested issue of fact whether Toavs was properly served
with the Motion for Summary Judgment.        This issue is one that
should have been raised before the District Court, and cannot
be raised on appeal.       In Re Marriage of Glass (Mont. 1985) ,
697 P.2d    96, 42 St.Rep.      328.    We note, however, that the
return of service was made by the constable.
     The second issue raised by Toavs concerns the validity
of the mechanic's     lien.      Toavs failed to respond to the
Credit Union's requests for admissions.           Rule 36, M.R.Civ.P.
provides that requests for admissions which remain unanswered
are admitted for all purposes.           By failing to answer, Toavs
admitted:     that he did not serve the Credit Union; that he
had   not    billed    the   Credit   Union;   and   that   he   had    no
permission to reside on the property.           Section 7 1 - 3 - 5 1 3 (2),
MCA   specifically requires that a copy of a mechanic's lien
must be served upon the owner of the property in order to be
valid.      The District Court properly found the unserved lien
invalid as a matter of law.
      Toa.vs also contends that his occupation of the property
was lawful and that the District Court erred in ordering him
to vacate.       We    find there are no genuine issue of fact
preventing summary judgment on this question.           Toavs admitted
he had no legal right to be on the property.                 The record
indicates the Credit Union            followed the proper statutory
procedure in attempting to have Toavs quit the property.
Therefore     the     District   Court   properly    granted      summary
judgment to      the Credit Union        concerning Toavs '      unlawful
detainer.
      Finally, the evidence supporting the District Court's
award of damages and attorney's fees is not only substantial,
but uncontroverted.
      The order of the District Court is affirmed in all
respects.
