                                             No.    86-98

               I N THE SUPREME COURT O THE STATE O MONTANA
                                      F           F

                                                 1986




W S M N TRACTOR CO.,
 ET O T                          a corporation,

                  P l a i n t i f f and Respondent,

       -vs-

R N L LEIGHTY,
 O AD

                  Defendant and A p p e l l a n t .




APPEAL FROM:      D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f L i n c o l n ,
                  The Honorable R o b e r t H o l t e r , Judge p r e s i d i n g .


COUNSEL O RECORD:
         F


       For A p p e l l a n t :

                   S v e r d r u p & S p e n c e r ; S c o t t B.       S p e n c e r , Libby, Montana


       F o r Respondent:

                  Murray, Kaufman, V i d a l & Gordon; D a n i e l W.                     Hileman,
                  K a l i s p e l l , Montana



                                                 - -
                                                  -                 -    -




                                                 S u b m i t t e d on B r i e f s : May 9 , 1986

                                                    Decided: J u l y 2 2 , 1986




                                                                             &
                                      &L*,L      Clerk
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


       Ronald Leighty appeals from an opinion and deficiency
judgment against him of $8,146.53           entered by the District
Court of the Nineteenth Judicial District, Lincoln County.
We affirm.
       There is one issue on appeal.          Did the District Court
err in allowing a deficiency judgment?
       Westmont Tractor Co. sued Ron Leighty for a deficiency
of $39,537.82.    That deficiency arose out of a transaction in
which Leighty, a logger, purchased three pieces of logging
equipment.     In September 1974, he purchased two Model 21 A
Tree Farmers.    They had substantially similar serial numbers:
SN SFL205 and SN 6FE204.       They will be referred to as 205 and
204.    In 1977, Leighty purchased a Model 30 Tree Farmer.         The
obligations were combined into a single note.
       The Model 30 never worked properly.          Numerous attempts
to fix it failed.       Leighty lost a great deal of time and
money in attempting to repair it, and could not make payments
on the note.     Leighty attempted to return the Model 30 to
Westmont, but Westmont refused to accept it.          Finally, in the
spring of 1978 Leighty returned the Model 30 and the Model 21
A # 204 to Westmont.         Westmont agreed to sell the machines
and credit the sale price to Leighty's account, but told
Leighty   he   would   be    liable   for   any   deficiency.   These
machines were sold at private sale.            The Model 30 was sold
for $7,500 leaving a deficiency of $17,000.00.           The Model 21
A   #204 was    sold   for   $9,000.00      leaving a deficiency    of
$8,146.53.
       In September, 1980 Westmont repossessed the remaining
Model 21 A #205.        Westmont sold the #205 at public auction to
itself for $7,500.00 leaving a deficiency of approximately
$14,500.00.
       In 1983, Westmont sued Leighty for $39,537.82.                      The
District Court held that Westmont sold the Model 30 with
knowledge     that     it would   be    used    for    logging    in rugged
terrain, and that Westmont knew or should have known it was
unfit for that purpose.         Therefore the District Court denied
the deficiency judgment on the Model 30.               The District Court
held the private sale of the Model 21 A #204 was properly
conducted.      It entered a deficiency judgment against Leighty
for $8,146.53 on the transaction.
       As to the public         sale of the Model 21 A #205, the
District Court found numerous problems.               The notice of public
sale sent to Leighty stated the sale would be July 30, 1980.
The sale was held August 27, 1980.             A newspaper advertisement
in the Missoulian on August 24 listed the sale as August 27
but referred to Model # 204.           All the notices sent to Leighty
refer to 204, while the accounting for the same sale lists
205 as the serial number.             Prior to the sale, Leighty was
billed    for    over    $4,700.00     in   repairs.      No     showing    of
reasonableness of repairs was made.              Due to these problems,
the District Court refused to grant a deficiency of judgment
against Leighty on the Model 21 A #205.
       Westmont contends this appeal should be dismissed for
failure to file an undertaking for costs on appeal as stated
in Rule 6 (a) M.R.App.Civ.P.           Westmont argues the posting of
bond   is jurisdictional.         Indeed, under S         9733 RCM    (1935)
posting   a     bond    for   costs   on    appeal was     jurisdictional.
Pappas v. Braithwaite (1946), 116 Mont. 606, 173 P.2d 116;
Sykes v. Republic Coal Company              (1943), 113 Mont. 619, 139
P.2d 543.       However that is no longer true under the current
rules.        The only step necessary to perfect an appeal is
filing a notice of appeal within time allowed by Rule 5
M.R.App.Civ.P.      "While the filing of a bond for costs may be
required, failure to            file the bond       does not affect the
validity of the appeal           . . ..     [Flailure to effect timely
filing of       the bond    should not, without more, result in
dismissal."       9 Moore's Federal Practice 5207.02.                    In this
case there are no other circumstances that mandate dismissal.
       Next    Westmont    contends       that    the    appeal      should   be
dismissed      because    the    judgment against Leighty               has been
partially      satisfied,       and   a   decision      on     appeal    becomes
ineffective.      However, where, as in this case, the judgment
was only partially         satisfied by          execution, it remains a
proper subject for judicial review.                Twenty-Seventh Street,
Inc.   v.     Johnson    (Mont. 1986), 716 P.2d               210, 211-12, 43
St.Rep. 534, 536; State v. Rafn (1956), 130 Mont. 554, 557,
304 P.2d 918, 919-20.
       Leighty contends the District Court erred in granting a
deficiency      judgment on       the Model       21 A    #    204 which was
voluntarily returned by Leighty and sold at private sale.
       Leighty    apparently      argues that while            he   voluntarily
returned the Model 21 A, after it had been returned Westmont
sent a notice of repossession sale and sold the equipment at
public sale.      Leighty however does not raise sufficiency of
the evidence.       Instead, he contends the actions of Westmont
changed the sale from a consent sale to a repossession sale
for which notice is required under Montana Law.                          Bank of
Sheridan v. Divers (Mont. 1985), 702 P.2d 1388, 42 St.Rep.
1107; Wippert v.         Blackfeet Tribe of the Blackfeet Indian
Reservation    (Mont. 1985),   695 P.2d   461, 42 St.Rep.   200;
Farmers State Bank v.    Mobile Homes Unlimited     (1979), 181
Mont. 342, 593 P.2d 734.       Appellant contends the notice of
public sale was deficient.
     The District Court found that the Model 21 A # 204 was
voluntarily returned for a private sale.       The facts as set
forth by     the District Court in its findings of fact are
controlling on appeal unless clearly erroneous.       Rule 52,
M.R.Civ.P.     St. John's Hospital v.     State Board of Health
(1973), 161 Mont. 406, 409, 506 P.2d 1378, 1379.
     There is no merit in Leighty's claim that the nature of
public   sale was defective because, as the District Court
held, the machine was returned for and sold at private sale.
Accordingly, we affirm the judgment of the District Court.




We Concur:
