                               No.    90-051

             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1990



CREDIT ASSOCIATES, INC,
          plaintiff and Respondent,
      -vs-
                                                              JUG 2 6 1990
RICHARD E. HARP, SR.1 and
LAvoNNE K. HARP,                                             t d~ L L ~ L
                                                        CLERK OF SUPREP+IE   COURT
          Defendants and Appellants.                       STATE OF ~ I O N T A N A




APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                 Richard E. and LaVonne K.              Harp, Great         Falls,
                 Montana, Pro Se.

             For Respondent:
                  Dirk Larsen, Larsen       &   Neill, Great Falls, Montana



                                     Submitted on Briefs:          May 24, 1 9 9 0
                                                      Decided:     June 26, 1990
Filed:                                          m




                                     Clerk
Justice John Conway Harrison delivered the Opinion of the Court.

       Appellants Richard and LaVonne Harp appeal the order of the
District Court of the Eighth Judicial District, Cascade County,
dismissing their appeal from justice court for failure to file a
proper undertaking on appeal.        We reverse and remand.
       On June 27, 1989, respondent Credit Associates, Inc., filed
suit in the justice court of Great Falls naming the appellants in
a case brought for the collection of three claims which had been
assigned to the respondent for collection. Those collection claims
included claims to recover $98.89 for Columbus Hospital, $85.70 for
Dr. Robert E. Wynia and $151.10 for Radiology/Columbus.
       Following trial in justice court, a judgment was granted in
favor of the respondent on all three claims. The appellants filed
an appeal with the District Court but failed to file a proper
undertaking on their appeal to the District Court and the District
Court thereafter ordered that the appeal from justice court be
dismissed.     The appellants now appeal to this Court.
       The issue on appeal is whether the District Court erred in
dismissing the appeal from justice court for the reason that the
appellants had failed to file a proper undertaking as required by
law.
       In support of their arguments, appellants' brief contains
various facts which have not been established by the record before
us.    In the absence of an appropriate record, this Court cannot
consider any such alleged facts on an appeal.
       Under the provisions of   §   25-33-201(1), MCA, the appellants
were required to file an undertaking in an amount equal to twice
the amount of the judgment including costs.         In Merchants Ass'n v.
Conger (1979), 185 Mont. 552, 606 P.2d 125, an indigent defendant
had appealed from a justice court judgment to the district court.
In substance this Court held that under 8 25-33-201 (1), MCA, a
requirement that the appellant must post an undertaking in an
amount    equal   to   double   the   judgment violated    the   indigent
defendant's Fourteenth Amendment rights.        From the limited facts
available to us, it appears that this decision may be controlling
as to the major part of the undertaking.
     We   therefore    reverse the     order   of   the   District   Court
dismissing the appeal and remand the case to the District Court for
its determination of the indigency on the part of the appellants
and consideration of the law of the case, including our decision
in Merchants Association.




We concur:
