                              No.    95-573
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1996


EDMUND WALTON, LORETTA WALTON, PATRICK E. WALTON, PATTI
WALTON, STEPHEN WALTON, CONNIE WALTON, AND T. ED WALTON,
           Petitioners and Appellants,
     v.
WESLEY PANKRATZ, PORCUPINE GRAZING ASSOCIATION, INC.,
a Montana Corporation, MATTHEW W. KNIERIM, LAURA
CHRISTOFFERSEN, NICK PANKRATZ, and JOHN DOES l-10,
           Respondents and Respondents,
     and
WESLEY PANKRATZ and PORCUPINE GRAZING ASSOCIATION,




EDMUND WALTON, LORETTA WALTON, PATRICK E. WALTON, PATTI
WALTON, STEPHEN WALTON, CONNIE WALTON, and T. ED WALTON,
           Defendants,   Cross-Defendants,    and   Respondents,
     and

EDMUND WALTON, LORETTA WALTON, PATRICK E. WALTON, PATTI
WALTON, STEPHEN WALTON, CONNIE WALTON, and T. ED WALTON,
           Cross-Plaintiffs   and   Respondents,
     v.
PORCUPINE GRAZING ASSOCIATION, INC., a Montana Corporation,
NICK PANKRATZ, PETER A. NYQUIST, NORTH BENCH RANCH, INC.,
a Montana Corporation, EAST FORK RANCH, INC., a Montana
Corporation, and WESLEY PANKRATZ, Individually and d/b/a
PORCUPINE LAND and LIVESTOCK,
           Cross-Defendants   and   Respondents.
APPEAL FROM:   District Court of the Seventeenth Judicial
               District, In and for the County of Valley,
               The Honorable John C. McKeon, Judge presiding.

COUNSEL OF RECORD:
          For Appellants:
               Arnie A. Hove, Attorney at Law,
               Circle, Montana
          For Respondents:
               Robert Hurly, Attorney at Law,
               Glasgow, Montana



                             Submitted on Briefs:   August 8, 1996
                                         Decided:   October 8, 1996
Filed:



                              Cletk
Justice Terry N. Trieweiler               delivered the opinion of the Court.

         Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result        to    State    Reporter    Publishing   Company     and   West    Publishing

Company.

         The       appellants,   Edmund    Walton,    et.   al.    (Waltons), filed a
petition for enforcement of a tribal court judgment and an

application for a preliminary injunction in the District Court of

the      Seventeenth          Judicial     District in       Valley     County.        The
respondents,           Wesley     Pankratz,    et.    al.    (PPN) ,    challenged     the

jurisdiction of the tribal court and asserted, as a counterclaim,

an ongoing agister's lien against Waltons' livestock.                          The parties

reached a settlement of the issues raised by Waltons' request for

injunctive           relief.       Waltons    then    (1)   consented to a           final

adjudication on the merits,                (2) withdrew their efforts to enforce

the tribal court order, and (3) requested a trial in the District

Court of the issues raised by PPN's counterclaim.                       After a nonjury

trial,        the District Court entered a judgment for PPN in the amount

of $92,614.18.              Waltons appeal the judgment of the District Court.

We affirm the District Court.

      The issues on appeal are:

         1.        Was there sufficient evidence to support the judgment of

the District Court?
     2.      Did the District Court err when it refused to admit a

videotape    offered     into   evidence       by   Waltons,   or when it granted

PPN's motion to quash a subpoena?

                                FACTUAL    BACKGROUND

     In November 1993, the parties made an agreement pursuant to

which Waltons would transfer possession of a number of their

livestock to PPN to keep on pastures belonging to or under the

control of PPN.        The agreement included the following provisions:
     1. A lease of PPN's deeded lands for grazing by WALTONS
     of their livestock at an agreed lease price of $10.00 per
     animal unit month for adult animals, and 6/lOths thereof
     for calves;

     2. A provision that, upon reaching feeding arrangements,
     PPN be paid going rates for feeder services;

     3.   A provision       that PPN is to be paid on the 15th of
     every month for        services to date, and that they may be
     paid in cattle        of value equal to money owed, provided
     said cattle are       free and clear of prior liens.

     On November 15, 1993, Waltons placed approximately 199 head of

livestock on PPN's grazing ranges.                  The livestock remained on PPN

ranges until January 18, 1994.                  Waltons were billed $3,980.00,

which they paid in full.            However,        after this initial successful

transaction,   the     parties' business            relationship   deteriorated    and

resulted in this litigation.
     On June 8, 1995, Waltons filed a petition for enforcement of

a tribal court judgment and an application for a preliminary

injunction    in   the   District    Court.          They   demanded   the   immediate

return of possession of their livestock.                    PPN filed an answer in

which it challenged the tribal court's jurisdiction, and asserted

                                           4
an agister's lien as a counterclaim.                       Prior to the conclusion of
the injunction hearing,             the parties reached a settlement on the

issues raised by the request for an injunction.

        Pursuant    to   that   settlement,          Waltons consented to a final
adjudication on the merits in the District Court and withdrew their

efforts     to enforce        the     tribal       court    order.       Further,     they

stipulated on the record that,                 although the amount was disputed,

PPN had a valid agister's lien.                The parties also stipulated that,

in addition to the witnesses and evidence that would be presented

at the trial, the District Court should admit and consider all of

the witness testimony given at the preliminary injunction hearing.

        A nonjury trial was held on November 27-28, 1995.                       Both sides

presented a         considerable        amount of           evidence    and     number of
witnesses.          Waltons      asserted          that,    despite     their    previous
stipulation on the record, PPN did not have a valid agister's lien

after May 2, 1995.        They disputed whether PPN had, in fact, leased

bulls     to   service        their     livestock,          and   objected      to   PPN's

calculations of their monthly bills.                   They also contended that PPN

did not take proper care of their livestock, and that high numbers

of their livestock had been killed and stolen.                         The parties also
disagreed on the actual number of Waltons' livestock for which PPN

provided grazing and wintering services.

        After the trial,        the District Court entered its findings of

fact,    conclusions of law, and order of judgment, from which Waltons

now appeal.        The District Court determined that PPN had (1) leased


                                               5
bulls to service W&tons'      cows; (2) kept, pastured, herded, and fed
WaltoIls '    livestock   during   various   periods of      time    between

January 24, 1994, and September 13,       1995; and (3) provided services

for seven of Waltons' horses.       Based on its findings, the District

Court entered a judgment for PPN in the amount of $92,614.18.              The

District Court also issued the following orders:           PPN has a valid

agister's lien; PPN is entitled to the immediate return of 292

cows,   48   heifers, and 213 calves based on their agister's lien; and

that the judgment is to be enforced by sale, as set forth in the
statutory provisions regarding agister's liens.

        The District Court subsequently issued a supplemental order.

Waltons filed a premature appeal, and this Court remanded the case

to the District Court for "the sole purpose of entering any further

orders and judgments as might be necessary to finally resolve all

issues in this cause."       The District Court then issued its final

order and awarded PPN the costs of gathering and caring                    for

Waltons'     livestock after the judgment.
                                   ISSUE 1

        Was there sufficient evidence to support the judgment of the

District     Court?
        When we review a district court's findings of fact,                the

standard of review is whether those findings are clearly erroneous.

Inlersrale Prod Credit Ass’n v. DeSaye (1991) , 250 Mont. 320, 322, 820   P.2d

1285,    1287.




                                      6
        on appeal, Waltons submitted a fifty-page brief, and no less
than forty of those pages are dedicated                      to a review   of the facts.

Waltons    point   out    alleged    inconsistencies         and    contradictions     in

PPN's evidence and testimony,           and claim that the District Court

improperly relied on that evidence and testimony.                          They   dispute

almost     every     finding of      fact       made   by    the    District      court.

Specifically,      they dispute the District Court's findings with

regard to the following issues:             the actual number of livestock for

which    PPN   provided   services;     the calculations of their monthly

bills;    the level of care PPN exercised with regard to their

livestock;     whether    PPN,    in fact,       leased bulls to serve their

livestock; and the existence of PPN's agister's lien. They contend

that the District Court's judgment and findings are not supported

by    "substantial    largely    uncontradicted         evidence,"         and that the
District Court did not give their evidence and testimony the same

weight and credibility that it gave to PPN's.
        Ultimately,   Waltons'      brief does nothing more than ask this

Court to review the facts of the case and decide that the District

Court erred in its resolution of the factual issues.                        That is not

our   role.    "It is axiomatic that it is the function of the district

court,    and not of [the Supreme] Court to hear the testimony, to

resolve conflicts in the evidence, to judge the credibility of the

witnesses and to determine the facts."                      Warnack v. Coneen Family Trust

(1994),    266 Mont. 203, 208, 879 P.2d 715, 719.                  Furthermore, 'I [wle
will not substitute our judgment for that of the trial court when


                                            7
the issue relates to the credibility of the witnesses or the weight

given to certain evidence."          Wunderlich v. Lumbermens Mut. Cm. Co.   ( 19 9s ) ,

270 Mont. 404,   408, 892 P.2d      563, 566. Nor will we substitute our

judgment for that of the District Court "even where there is

evidence in the record to support contrary findings."                    In re Alcorn

(1994),    263 Mont. 353, 360, 868 P.2d 629, 633.

     Our review of the facts, therefore, is necessarily limited,
and we are,    in this case, unwilling to substitute our judgment for

that of the District Court.         This case was driven by its facts; the

District Court was forced to resolve a myriad of complicated

factual    disputes,   including,    most    notably,    the actual number of

Waltons'    livestock for which PPN provided services.                Despite      the

alleged inconsistencies and contradictions in PPN's testimony and

evidence,     all of    the   District       Court's findings of fact are

supported by the record.      Even though evidence is controverted, its

weight is for the District Court to determine.                After a review of

the record,    we conclude that there was substantial and credible

evidence to support the District Court's findings, and that they

are not clearly erroneous.
                                     ISSUE 2

     Did the District Court err when it refused to admit a

videotape offered into evidence by Waltons, or when it granted

PPN's motion to quash a subpoena?

     When we review a district court's evidentiary or discretionary

ruling, the standard of review is whether the district court abused

                                         8
its discretion.              Hislopv.   Cody (1993), 261 Mont.   243, 247, 862 P.2d

388,    390; MontanaRailLinkv.Byard (1993),          260 Mont. 331, 337,    860 P.2d

121,    125.     The test for abuse of discretion is "whether the trial

court     acted       arbitrarily          without    employment of    conscientious

judgment or exceeded the bounds of reason resulting in substantial

injustice."          Tanner V. Dream Island, Inc. (19961,   275 Mont. 414, 430, 913

P.2d 641, 651.               Additionally,     we note that questions relating to

the admissibility of evidence are "left to the sound discretion of
the trial court,             subject to review only in the case of manifest

abuse."        Masonv.Di~zel     (1992), 255 Mont. 364, 370-71, 842       P.2d 707,

712.

        Waltons claim that the District Court erred when it refused to

admit a videotape into evidence.                  The videotape, they allege, would

have provided the District Court with additional                         information

regarding the condition of their livestock.

        The District Court refused to admit the videotape for the

following reasons:               (1) the videotape was not offered in accordance

with the rules of evidence; and (2) Waltons had already exceeded

the stringent         time   deadline the District Court had established for

the presentation of evidence.                  We conclude that the District Court

did not abuse its discretion when it excluded the videotape offered

by Waltons.

        Waltons also claim that the District Court erred when it

granted PPN's motion to quash a subpoena duces tecum served on the

Glasgow Stockyard Company.                 They allege that the subpoenaed witness

                                                 9
and accompanying documents would have provided the District Court

with     additional     information     regarding    the      actual   number of
livestock for which PPN provided services, and would have supported

the allegations regarding theft of their livestock.

       The District Court granted PPN's motion to quash the subpoena

for the following reasons:        (1) compliance with the subpoena would

have required a considerable amount of time and effort, and Waltons

provided Glasgow Stockyard with only thirteen days notice; and
(2) the requirements of the subpoena were too broad for Glasgow

Stockyard to be able to effectively comply with its terms. We

conclude that,        for the reasons set forth in the District Court's

order,    it did not abuse its discretion when it quashed Waltons'

subpoena duces tecum.

       Finally,   we note that,       in their appeal,     Waltons     raise    four

issues in addition to the two we have already addressed.                       These

four issues were not raised in the District Court, and therefore,
will not be considered for the first time on appeal.

       The judgment of the District Court is affirmed.




                                                    ust c'e


We concur:




       "Chief Justice


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Justices   "' /




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