                                             No.    83-70

                        I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                    1983




STATE OF MONTANA, ex r e l . ,
GEORGE W. CADY and ROBERTA CADY,
husband and w i f e ,

                                     Petitioners,



THE D I S T R I C T COURT OF TEE THIRTEENTH
J U D I C I A L D I S T R I C T OF THE STATE OF MONTANA,
IJ AND FOR THE COUI'JTY OF B I G HORN P,ND THE
 P
IiONORABLE ROBERT H WILSON,      .
                                     Respondents.




O R I G I N A L PROCEEDING:


C o u n s e l of R e c o r d :


          For Petitioners:

                      L e w i s E.    Brueggemann,    Billings,      Montana


          For Respondents :

                      Clarence Belue,        H a r d i n , Montana


                                                                         -            -
                                             Submitted:        February 16, 1983

                                               Decided:       A p r i l 28, 1 9 8 3




Filed:       APR 2 8 1983
                         ORDER AND OPINION
                DENYING WRIT OF SUPERVISORY CONTROL

Mr. Justice John C.        Sheehy delivered the Opinion of the
Court.


     On February 4, 1.983, relators George W. and Roberta Cady
filed in this Court their petition for writ of supervisory
control,    review    or   other     appropriate   relief.     In   the
petition, the relators requested that this Court issue a writ
or order (1) declaring the District Court's ejection order
removing relators from certain property in Big Horn County to
be illegal, (2) granting a stay of all further proceedings in
the lower court, (3) ord-ering the return to the relators of
all properties involved in lower court action pending the
outcome    of   an   appeal   then   before   this Court, and,      (4)
restoring the parties to the status quo prior to the ejection
order of February 1, 1983.
     Underlying the petition of the relators was an action
that was pending in the District Court, Thirteenth Judicial
District, Big Horn County, brought by George W. and Roberta
Cady, as plaintiffs, against Anne T. Black and Big Horn Bank,
as defendants.        Plaintiffs claim that Anne T. Black had
breached certain contracts with the plaintiffs, and that the
bank as escrow holder was also responsible.                  Defendants
denied the Cady's allegations, and Anne T. Black claimed a
default under the contract which entitled her to repossess
the property.
     It appears that Anne T. Black had sold to the Cadys a
cafe, laundromat, residence and other real property located
at Lame Deer, Montana, under two contracts for deed in 1975
and 1976.
     On     August      13,    1982,      the    District      Court      signed     a
judgment, entered on August 16, 1982, to the effect that the
plaintiffs were in default under both contracts for deed, but
that for reasons of equity, since unjust enrichment of the
defendant Black would occur if forfeiture were applied, the
District Court relieved the Cadys from forfeiture granting
them six months from July 27, 1982, in which to pay the
remaining sums due and owing under the contracts for deed.
     On     September      23,     1982,       the   District      Court    entered
judgment      in   favor      of   Big    Horn       Bank   granting      the     bank
$6,394.60     attorney fees, with              interest at 10 percent per
annum from date.           Notice of the entry of this judqment was
served by the clerk on September 23, 1982.
     On November         8, 1982, the District Court amended the
judgment of default and relief from forfeiture by granting
Anne T. Black attorney fees in the amount of $5,000.                            Notice
of the entry of this amendment to judgment was served on
November 9, 1982, by the clerk.
     On November 17, 1982, upon motion of the Cady's for the

withdrawal of the contract documents from the office of the
Clerk of the Court, "for the purpose of obtaining a new V.A.
loan to pay off properties and for other reasons" the court
ordered the release of the documents to the Cadys.
     On December 8, 1982, Cadys made a motion to set aside
and reopen the cause or for a new trial under Rule 60(b),
M.R.Civ.P.,        on   the    ground      that      new    evidence      had    been
discovered     which     affected        the    cause.       The    new    evidence
consisted of a report from a handwriting expert to the effect
that the contract documents had been altered.
        Black filed responses objecting to the motion to reopen
the cause, and asking for damages and punitive damages for
falsity in the allegations respecting the contract documents.
        On December 23, 1982, the District Court denied all
motions.      Notice was given by the clerk of the order denying
all motions on December 28, 1982.

      On January 3, 1983, the Cadys filed their notice of
appeal "from the order denying plaintiffs' motion for a new
trial entered in this action on the 23rd day of December,
1982. I'
      On January 6, 1983, Anne T. Black appealed from the
order denying her motion for damages and punitive damages
under the order of December 23, 1-982.
      On January 28, 1983, the District Court entered an order
staying execution of its amended judqment upon the filing of
a supersedeas bond in the sum of $18,000 by the Cadys.
      On February 1, 1983, the District Court entered its
order      declaring    the   interest    of   the    Cadys      under    both
contracts forfeited authorizing the bank as escrow agency to
deliver to Anne T. Black the escrow deeds to said property
and ordering the Rosebud County Sheriff to enter the premises
and eject every person holding the same adversely to Anne T.
Black and to restore Anne T. Black to possession.
      The    Rosebud    County   Sheriff   made      his    return   to    the
ejection order, stating that he had served individual copies
of the said order and ejected all persons from the premises
restoring Anne T. Black to the same.
      Although a copy of a supersedeas bond is included in the
exhibits     attached    to   relators'    petition        for   supervisory
control, no supersedeas bond was filed with the District
Court or appears in the court file.             The District Court has
never approved a supersedeas bond.
        From the foregoing, it should be clear that no appeal
was taken by the Cadys from the District Court judgment of
August 13, 1982, nor from the subsequent amendments to that
judgment.    Each of the appeals taken by the Cadys and by Anne
T. Black related to the order of the District Court denying
Cadys' motion to reopen the case and Black's motion for
damages and punitive damages.
    Both appeals were handled by us in cause no.                   83-42
before this Court.
    On March        3, 1983, on motion      of Anne T.       Black, we
dismissed the appeal in that case and denied rehearing by our
order of March 24, 1983.
        In this cause, on February 10, 1983, we entered an order
which    granted    a    stay of all further proceedings in the
District Court, denied without prejudice petitioners prayer
that all properties be returned to them, denied their prayer
that all parties be returned to their respective positions
and conditions prior to the ejection order of Februa.ry 1,
1983, and reserved ruling on whether the District Court's
ejection    order       was   illegal.   That    question   was   deemed
submitted on that date.
    Our examination of the court file and the records in
this cause reveal that the order of ejectment issued by the
District Court on February 1, 1983, in this case was not
illegal, null or void.
    Rule 62(b), M.R.Civ.P., provides that the District Court
may stay the execution of or any proceedings to enforce a
judgment when there is pending a motion under Rule 59, or
R u l e 60.          I n t h i s c a s e , t h e D i s t r i c t C o u r t had a l r e a d y r u l e d

on Cad.yls R u l e 60 m o t i o n ,              and s o R u l e 6 2 ( b ) d o e s n o t a p p l y .

          The r i g h t o f a judgment h o l d e r t o e n f o r c e a judgment i s

s e t f o r t h i n s e c t i o n 25-13-101,                which p r o v i d e s t h a t a p a r t y

i n whose f a v o r judgment                  i s g i v e n may a t a n y t i m e w i t h i n s i x

v e a r s a f t e r t h e e n t r y t h e r e o f have a w r i t o f e x e c u t i o n i s s u e d

f o r i t s enforcement.

          A    judgment          debtor o r other party desiring t o stay t h e

execution of              a judgment o r o r d e r o f t h e D i s t r i c t C o u r t must

p r o c e e d u n d e r R u l e 7 of t h e Montana R u l e s o f A p p e l l a t e C i v i l

Procedure.             That Rule p r o v i d e s t h a t i f an a p p e l l a n t d e s i r e s a

s t a y o f p r o c e e d i n g s , where t h e c o u r t h a s made no s u c h o r d e r ,

h e may p r e s e n t t o t h e D i s t r i c t C o u r t and s e c u r e i t s a p p r o v a l

of     a s u p e r s e d e a s bond.
       .                                         In    this    case,       t h e District Court

fixed          the    amount       of     such    supersedeas          bond     in   the   sum o f

$18,000.              However,         no s u c h bond was e v e r p r e s e n t e d t o t h e

District             Court       for    approval       prior     to    the    issuance     of        the

ejection order.                  T h e r e f o r e , on F e b r u a r y 1, 1 9 8 3 , t h e judgment

holder,          Anne       T.    Black,      was      entitled       to     enforcement        of     a

judgment by e x e c u t i o n u n d e r s e c t i o n s 25-13-101                and 25-13-201,

MCA.           The D i s t r i c t C o u r t f o l l o w e d t h e s e      statutes,      and was

a u t h o r i z e d by s t a t u t e t o o r d e r t h e d e l i v e r y o f t h e p o s s e s s i o n

of     t h e r e a l and p e r s o n a l p r o p e r t y u n d e r         s e c t i o n 25-13-307,

MCA   .
          ACCORDINGLY,            I T I S ORDERED:

          1.         That    the petition             of   the relators for           a w r i t of

supervisory             control,         writ     of       review     or    other    appropriate

r e l i e f i s hereby denied.

          2.      T h a t c o p i e s o f t h i s o p i n i o n a n d o r d e r b e s e r v e d upon

c o u n s e l o f r e c o r d by t h e c l e r k o f t h i s c o u r t .

          DATED t h i s                  d a y o f A p r i l , 1983.
We Concur:




      C h i e f Justice
