                                                       No. 88-365
                                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           1989




KENNETH CIOTTI AND JORDANELLA
CIOTTI,
              Plaintiffs and Respondents,

ROBERT HOOVER, DIANE HOOVER, JOHN GERLETTI,
and JENNIFER HENDRIX,

                                        Defendants and Appellants.




APPEAL FROM:                            District Court of the Twentieth Judicial ~istrict,
                                        In and for the County of Sanders,
                                        The Honorable C. B . McNeil, Judge presiding.
COUNSEL OF RECORD:

                     For Appellant:
                                        Timothy J. Lape, Polson, Montana

                     For Respondent t
                                        Thomas Alan Kragh; Rosscup            &   Kragh, Polson, Montana



                                                           Submitted on Rriefs:              March 2, 1989
                                                            Decided:               June 6 , 1989
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Mr. ~ u s t i c e John          C.     Sheehy        delivered            the     opinion          of     the
Court.



        The      appeal       of      the     defendant              John       Gerletti           from     a
judgment        entered        in     the     District          Court        of       the      Twentieth
~ u d i c i a lD i s t r i c t , S a n d e r s County, c o n c e r n s t h e n e c e s s i t y o f
appointing three referees i n a p a r t i t i o n action a s required
by s t a t u t e .    Because w e f i n d t h e s t a t u t e was n o t f o l l o w e d i n
t h e District Court,                we r e v e r s e t h e judgment                  and remand          for
f u r t h e r proceedings.
        There        are     four      issues        for       review       by        this     Court       as
follows:
        1)     Did t h e D i s t r i c t C o u r t e r r by n o t a p p o i n t i n g t h r e e
(3)    referees         as    mandated         by     5 70-29-202(l)                  and      (2),      MCA,
before partitioning the land i n t o three parcels?
        2)      id t h e D i s t r i c t C o u r t e r r by f i n d i n g t h a t none of
the     defendants           objected         to     the       appointment              of     a      single
r e f e r e e i n s t e a d of t h r e e r e f e r e e s ?
        3)     Did     the     District         Court          err    by     finding           that       the
d e f e n d a n t s waived      their       rights       t o t h e appointment of                       three
referees?
        4)     Did     the    ~ i s t r i c tC o u r t       err by         finding          that     Judge
Henson's        order       dated      July     16,      1984 was           in    full        force       and
effect?
        The      parties        entered        into        a    contract              for     deed       with
Leonard       and     Peggy      smith      for      the       purchase          of    200      acres      in
S a n d e r s County, Montana.                A t t h e t i m e of t h e purchase,                      there
were      three       couples;          the        ~ i o t t i s , the       Hoovers            and       the
Gerlettis.           The G e r l e t t i s have s i n c e d i v o r c e d .                 The p a r t i e s
are     tenants        in    common,        each paying              an     equal       part        of    the
purchase p r i c e .          The p r o p e r t y h a s been p a i d f o r i n f u l l and
t h e S m i t h ' s a r e no l o n g e r p a r t i e s t o t h i s a c t i o n .
      On May   18, 1983, the Ciottis filed a complaint for
partition of the land because they were seeking financing and
the bank would not lend on a mortgage without all the owners
signing for the loan.    The defendants, the Hoovers and
Gerlettis were not personally served with the summons and
complaint. Service was attempted by publication despite the
Ciottis knowledge of the whereabouts of the defendants who
resided out of state. In October, 1983, a default judgment
was entered against the defendants.   On July 16, 1984, an
order was issued by Judge John S. Henson based on the default
which ordered that the property be partitioned, that Hilman
Hanson be appointed referee to partition the property and
that the referee submit his report dividing the property to
the ~istrictCourt. On October 10, 1984, Judge Henson signed
an order confirming the referee's report and an amended order
confirming the report was signed December 17, 1984.
     On April 11, 1985, the defendants filed a motion to set
aside the judgment based upon lack of service and notice. On
May 24, 1985, Judge C. B. M c ~ e i lsigned an order vacating the
default judgment and declaring the orders of October 10, 1984
and December 17, 1984 void because the District Court was
without jurisdiction to issue the default judgment and
subsequent orders.
     On June 13, 1985, the defendants filed an answer to the
original complaint.   One year later, the Ciottis filed a
motion for an order to partition the land, for the
appointment of a single referee, that ~ i l m a n Hanson be
appointed as that referee and for confirmation of Hanson's
report which was previously submitted to the court.     The
motion was set for hearing July 8, 1986.
     Prior to the hearing, the parties met for a settlement
conference. The Ciottis and Gerlettis each made a proposal
for   settlement.   There   is   some disagreement about which
proposal was agreed upon.       John Gerletti contends that the
only unresolved item was the cost to have the land surveyed
but it appears that he wanted five acres which abutted the
creek on the property that had been fenced by the Ciottis.
The settlement conference failed and the matter was set for
trial        on December 21, 1987.   Gerletti made a motion to
compel compliance with the settlement agreement and it was
decided that the motion would be treated as a counterclaim at
trial.
        Trial was held on December 21, 1987 with only the
~ i o t t i s and John ~erletti appearing.     in dings of fact,
conclusions of law and judgment for partition were entered on
March        1,   1988  denying  Gerletti's   counterclaim   and
partitioning the land into three parcels. No referees were
appointed prior to the partitioning of the land. post-trial
motions were filed by Gerletti addressing the appointment of
referees and the court entered amended findings of fact,
conclusions of law and judgment for partition on ~ p r i l 22,
1987.       Again, no referees were appointed. Finding of fact
no. 13 incorporates the July 16, 1984 order which appoints
~ i l m a n Hanson as the single referee, however the parties
never consented to the appointment of a single referee.
Additional post-trial motions regarding the appointment of
referees were filed by ~erletti and denied.         his appeal
followed.
                                 I
     1) Did the ~istrictCourt err by not appointing three
(3) referees as mandated by S 70-29-202 (1) and (2), MCA
before partitioning the land into three parcels?
     2) Did the ~istrictCourt err by finding that none of
the defendants objected to the appointment of         a   single
referee instead of three referees?
        3)     Did     the     District         Court      err     by       finding     that      the
d e f e n d a n t s waived        their    rights      t o t h e appointment o f               three
referees?
        The      first       three        issues     regarding          5    70-29-202,         MCA,
g o v e r n i n g t h e p a r t i t i o n i n g o f p r o p e r t y and t h e a p p o i n t m e n t o f
r e f e r e e s w i l l be addressed a s one.                 s e c t i o n 70-29-202(1)          and
( 2 ) provide i n p a r t ,         a s follows:
        ...        upon r e q u i s i t e p r o o f s b e i n g made, it [ t h e
        c o u r t ] must o r d e r a p a r t i t i o n a c c o r d i n g t o t h e
        r e s p e c t i v e r i g h t s o f t h e p a r t i e s a s a s c e r t a i n e d by
        t h e c o u r t and a p p o i n t t h r e e r e f e r e e s     . . .
         ( 2 ) The c o u r t , - - c o n s e n t - -e p a r t i e s ,
                                    with t h e              of t h
        may a p p o i n t a s i n g l e r e f e r e e i n s t e a d o f t h r e e
        r e f e r e e s i n t h e proceedings under t h e p r o v i s i o n s of
        t h i s c h a p t e r , and t h e s i n g l e r e f e r e e , when t h u s
        a p p o i n t e d , h a s a l l t h e powers and may p e r f o r m a l l
        the duties of the three referees.                              (Emphasis
        added. )

The i n t e r p r e t a t i o n o f    this     statute,         i n s o f a r a s it concerns
the    appointment           of    referees,        h a s n o t been         an   issue before
t h i s C o u r t u n t i l now, most l i k e l y b e c a u s e t h e l a n g u a g e o f t h e
s t a t u t e i s c l e a r and d o e s n o t l e a v e any d i s c r e t i o n w h a t s o e v e r
t o t h e D i s t r i c t Court.          An a c t i o n f o r p a r t i t i o n i s a s p e c i a l
s t a t u t o r y proceeding.             Hurley v.         OtNeill         ( 1 9 0 5 ) , 31 Mont.
595, 79 P .        242, 243.          "We must t h e r e f o r e l o o k t o t h e s t a t u t e
f o r t h e a u t h o r i t y t o b r i n g t h e a c t i o n - - - procedure
                                                              and f o r t h e
t o be               bo h                                                   it i
- - f o l l o w e d -t -i n b r i n q i n g t h e a c t i o n and a f t e r - --s
instituted."       ( ~ m p h a s i sa d d e d . ) Lawrence v . Harvey (19801,
186 Mont.        314,     607 P.2d         551, 555, q u o t i n g H u r l e y , s u p r a , 79
P.    a t 243.
        The s t a t u t e p r o v i d e s t h a t u n l e s s t h e p a r t i e s c o n s e n t t o
t h e appointment o f             a single referee,              t h r e e r e f e r e e s must be
appointed.           T h i s was n o t d o n e ,      t h e r e f o r e t h e D i s t r i c t Court
erred.       The r e s p o n d e n t s c o n t e n d t h i s e r r o r was h a r m l e s s e r r o r
and t h a t had t h r e e r e f e r e e s been a p p o i n t e d , t h e r e s u l t would
have been the same. ÿ his argument is pure speculation. We
do not know what three referees might have done because three
referees were not appointed under the mandatory language of
the statute.
     The ~istrictCourt, in its findings of fact nos. 17, 18,
19, and 20, finds that the defendants did not object to the
appointment of a single referee until post-trial motions.
First, it is not a matter of objecting to the appointment of
a single referee, it is a matter of consent which the
defendants did not give.   Second, these findings simply are
not supported by the record. The defendant first objected at
the July 8, 1986 hearing on plaintiff's motion dated June 13,
1986 which requested an order partitioning the property, the
appointment of Hilman Hanson as the single referee, and for
an order confirming Hanson's report filed in the proceedings
which were set aside for failure to make proper service. The
defendant objected again when answering a renewed motion by
the plaintiffs dated August 31, 1987 requesting the
appointment of Hilman Hanson as the single referee.      The
defendant also objected at the December 21, 1987 trial when
the report by Hanson prepared for the void proceedings was
introduced into evidence.
     Based upon the court's finding that the defendant did
not object, the court found that this supposed failure
constituted a waiver of the defendant's right to have three
referees appointed by the court. This is clearly error. If
consent for a lesser number is not given, the statute states
the court must appoint three referees.

     4)   id the District Court err by finding that Judge
Henson's order of July 16, 1984 was in full force and effect?
     It is fundamental to our system of law that the court
rendering   a   decision  in   any   particular  case,   have
jurisdiction over the parties.   ~urisdiction is power, that
is, the authority to render a judgment. The District Court
realized this when it vacated the first proceeding on the
grounds that jurisdiction did not exist.
     It is elementary that when the judgment roll upon
     its face shows that the court was without
     jurisdiction to render the particular judgment, its
     pronouncement is in fact no judgment. It cannot be
     enforced.   No right can be derived from it. All
     proceedings founded upon & are invalid
     ineffective for any purpose.      (Emphasis added.)
Apple v. Edwards (1949), 123 Mont. 135, 140-141, 211 ~ . 2 d
138.
     The District Court, in its findings recognized the
invalidity of the default judgment issued October 4, 1983 and
voided two of the resulting orders, but then states that the
July 16, 1984, order was in full force and effect. This is
not correct.   The whole prior proceeding is void, not just
parts of it. As a result, the July 16, 1984, order cannot be
the basis for the appointment of a single referee. Otherwise
the clearly stated requirements of § 70-29-202, MCA, are not
given effect. Reversed and remanded for further proceedings
in accordance with this opinion.
                                    ,

                                      4-. .
                                \_)dmJustice L A -
                                           2 . 7
We Concur:
