                             No. 80-70
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1980


TOM MATHER, d/b/a MATHER &
ASSOCIATES, MICHAEL PAUL,
d/b/a AMERICAN PROPERTIES,
                               Plaintiffs and Respondents,


LARRY K. IlUNSl'ZiN and JACQUELINE
DUNSTAN, DALE ANDERSON, RANDAL
W. ANDERSON, and GUARANTY TITLE COMPANY,
                               Defendants and Appellants.


Appeal from:   District Court of the Eighth Judicial District,
               In and for the County of Cascade.
               Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
    For Appellants:
         Alexander and Baucus, Great Falls, Montana
         Ward E. Taleff argued, Great Falls, Montana
    For Respondents:
         Hartelius and Associates, Great Falls, Montana
         Michael Smartt argued, Great Falls, Montana



                             Submitted:   September 11, 1980



Filed:


                                      Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

     Defendants appeal from an order of the Cascade County
District Court refusing to dissolve a writ of attachment
directed at tying up proceeds of a house sale in order to
assure that money will be there to pay a real estate com-
mission if the plaintiff real estate agents prevail in the
underlying lawsuit.
     Defendants raise many issues for review and several merit
a reversal and order dissolving the writ of attachment. We
confine our opinion, however, to our determination that the
plaintiff real estate agents failed to comply with section
27-18-203, MCA, by failing to allege that a debt was then
owed, which means that the writ of attachment cannot stand.
     Randal W. and Dale Anderson, two of the defendants
here, are the sellers of a house.   Larry K. and Jacqueline
Dunstan, the two remaining defendants, are the buyers of the
house.   The plaintiff real estate agents allege that the
sellers and buyers violated a real estate listing agreement
and buy-sell agreement, and that in doing so they had the
desire to deprive the agents of their six percent real
estate commission.
     The sellers listed their house on July 5, 1979, with
Tom Mather, a real estate agent.    The listing agreement gave
the agent or any member of the multiple listing service, the

exclusive right to sell the house, and provided that the
agent was entitled to a six percent commission when he met
his obligations under the contract.    This agreement, which
expired on October 6, 1979, provided up to 60 extra days 50 close
any deal on which earnest money had been paid.
     On July 11, 1979, American Properties, a member of the
multiple listing services, and one of the plaintiffs here,
arranged a prospective sale to the buyers.        The sellers, buyers,
and American Properties, signed a buy-sell agreement that
was to expire in 30 days, although it allowed a 30-day
extension.   This agreement also provided for the six percent
real estate commission.   Another condition was that the sale
was contingent on the review and approval of the buyer's
wife, Jacqueline Dunstan.
     We are unable to tell what happened over the next three
months, except to state that for some reason a dispute arose
between the sellers and the real estate agents.        In December,
the real estate agents learned that the sale between the
Andersons and the Dunstans was going to take place without
the participation of the agents.        The agents feared they
would lose a commission and therefore filed a lawsuit against
the sellers and buyers, in essence claiming they had been
cheated out of their commission.        The real estate agents
also obtained an ex parte writ of attachment, which was
aimed at holding a portion of the house sale proceeds to
satisfy the six percent sales commission.
    After learning of the writ of attachment, both the
sellers and buyers filed motions in trial court aimed at
quashing the writ of attachment.        They alleged several

grounds, but after a hearing, the trial court denied all
grounds and ordered that the writ of attachment remain in
effect pending the outcome of the lawsuit.        The sellers and

buyers appeal from this order.     As we stated earlier, the
writ was improperly issued for several reasons, but it is
sufficient here to confine our discussion to the failure of
the real estate agents to allege in the supporting affidavits,
facts showing that a debt was then owed.
     The basis for obtaining the prejudgment writ of attachment,
was apparently section 27-18-203, MCA, which provides in

pertinent part:
                                 - 3-
     "Actions may be commenced and writs of attach-
     ment issued upon any debt for the payment of
     money . .
             . before the same shall have become
     due when it shall appear by the affidavit, in
     addition to what is required in 27-18-202:
     "(1) that the defendant is leaving or is about
     to leave the state, taking with him property,
     moneys . . or .
     " (2) that the defendant is disposing of his
     property or is about to dispose of his property,
     subject to execution, for the purpose of defrauding
     his creditors."
Plaintiff real estate agents peg their case on subsection 2
of this statute.
     Two questions are presented here.   Whether the affidavit
provided sufficient evidentiary facts to establish that a
debt was owed to the real estate commissioners--that is,
that the sellers and buyers owed a six percent commission to
the real estate agents; and whether sufficient facts were
contained in the affidavit to show that the defendants were
disposing of or about to dispose of the proceeds of the real
estate sale for the purpose of defrauding the real estate
agents.
     In the affidavit and at the hearing, the real estate
agents repeatedly stated that there was no debt until the
sale was made. Therefore, they took the position that they
were entitled to the commission only when the sale was
closed between the Andersons and the Dunstans.   There was no
allegation and absolutely no evidence presented in the
affidavit that the sale had actually been closed.   This
being the case, they had no right to obtain the writ of
attachment, for the statute clearly specifies that a debt
must be owed, even though it may not yet be due.
     We note that the real estate agents arguments on appeal are
not the same as their arguments in trial court on the question
of whether the buyers and sellers owed the commission to the
real estate agents.    Here, on the basis of Diehl   &   Associates,
Inc. v. Houtchens (1977), 173 Mont. 372, 567 P.2d 930, the
agents argue now that they were entitled to the commission
once they found a ready, willing and able buyer, and that it
did not depend on an actual closing.   Assuming this to be
true, they cannot avail themselves of this position now when
they failed to make these allegations before the trial court
as a basis of obtaining the writ of attachment.      The real
estate agents cannot breathe new life into the attachment by
telling us what they should have told the trial court before
the writ was issued.
     The agents had to come under either section 27-18-
203 (1) or (2) in order to avail themselves of a prejudgment

writ of attachment.    They chose subsection (2) as that which
gave them the right to obtain the writ.     Therefore, they
were required in their affidavits to set out an evidentiary
basis to conclude that the buyers and sellers here had either
disposed of the sales monies, including the commission, or
were about to do so and that the purpose was to defraud
creditors.   They clearly failed in this.
     The affidavit alleged generally that the real estate
agents had learned that the sellers and buyers had independently
arranged for a sale of the house and that they had changed
closing agents.   With no evidentiary basis stated at all, it
alleged that the sellers had taken a course of conduct with
the intent to defraud the real estate agents of their commission.
With no evidentiary basis stated at all, it further alleged
that the seller would dispose of the sales price money,
including the commission, unless a writ of attachment was
issued.   There are simply no evidentiary facts stated that
lead one to conclude that either the sellers or buyers
intended to dispose of the money and had the purpose of
defrauding the real estate agents out of their commission.
     The affidavit alleged generally that the real estate
agents had learned that the sellers and buyers had independently
arranged for a sale of the house and had changed closing
agents.     It also stated generally that the sellers and
buyers had refused to deposit the six percent commission
with a trust fund pending the outcome of a lawsuit directed
at deciding whether the agents were entitled to the commission.
With no evidentiary facts stated, the affidavit alleged that
the sellers and buyers had taken a course of conduct designed
to defraud the real estate agents of their commission.      With
no evidentiary facts stated, the affidavit also alleged that
the sellers would dispose of the sales money, together with
the six percent commission, unless a writ of attachment was
issued. No court could reasonably conclude from these statements
that the sellers or buyers intended to dispose of the money
and to defraud the real estate agents out of their commission.
     The order refusing to dissolve the writ of attachment
is reversed.    The trial court is directed to enter an order
dissolving the writ of attachment.




We Concur:


   ~~~         4,9s/cjdweeQ
..............................
          Chief Justice




This case was submitted prior to January 5, 1981.
