                               NO.    91-342

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1992



HELEN E. ANDERSEN, DONALD A. YEATS,
and SANDRA C. YEATS,
            Plaintiffs and Respondents,
     -vs-
LOUANNE SINGER and RICHARD A. SINGER,
            Defendants and Appellants.



APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable Leif B. Erickson, Judge presiding.


COUNSEL OF RECORD:
            For Appellants:
                 Louanne Singer and Richard H. Singer, Pro Se,
                 Phoenix, Arizona.
            For Respondents:
                 James C. Bartlett, Hash, O'Brien & Bartlett,
                                                   .
                 Kalispell, Montana.


                               Submitted on briefs:       November 21, 1991
                                               Decided:   January 7 , 1992
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Plaintiffs and Respondents Helen E. Andersen, Donald A. Yeats,
and Sandra C. Yeats brought suit in the District Court for the
Eleventh Judicial District, Flathead County.       The District Court
granted respondents' motion for summary judgment.           Appellants,
appearing pro se, as they did at the District Court level, appeal
from the decision of the District Court.       We affirm.
     Appellants present two issues on appeal.
     1.    Whether the District Court erred in granting summary
judgment for the plaintiffs/respondents.
     2.   Whether the District Court erred in dismissing appellants'
counterclaims.
     It is difficult from the briefs and the record before this
Court, to determine with any degree of certainty the circumstances
which gave rise to the present dispute.        It appears that at one
time, appellant Louanne Singer was engaged to be married to Glenn
Andersen, the son of respondent Helen Andersen. The engaged couple
lived together in Arizona while Glenn was attending school.           The
couple then moved to Montana, bringing with them their possessions.
After a time, the couple returned to Arizona to live, leaving many
of their possessions in storage in Montana. Shortly thereafter the
relationship dissolved,    at   which   time    Glenn   took   back   the
engagement ring and returned alone to Montana.
     The appellants allege that property belonging to them is being
held "hostage" in Montana by the respondents.       Additionally, they

                                  2
contend that Glenn owes them money from various transactions that
took place while he was living with Louanne in Arizona.   In order
to secure the return of the property and money, the appellants,
without counsel, chose to file a lien against certain real property
of respondent Helen Andersen.      The appellants did not initiate
litigation seeking the return of the alleged property or money.
The   respondents brought   suit   in   District Court.   In their
complaint, respondents requested that the District Court declare
null and void the real property lien filed in the office of the
Flathead County Clerk and Recorder by appellant Louanne Singer
against the property of respondent Helen Andersen.    Additionally,
respondents requested that the District Court quiet title to the
disputed property in the name of Helen Andersen, and order the
Flathead County Clerk and Recorder to not file any additional
documents of record submitted by the appellants which purport to
adversely affect the respondents' property without first receiving
an order from the District Court granting leave to file such
document.   Finally, the respondents asked for attorney fees and
costs.
      On March 5, 1991, the District Court Judge granted the
respondents' motion for summary judgment and granted respondents
relief as they requested in their complaint. It is from this order
that appellants appeal.
      Summary judgment is proper when no genuine issues of material
fact exist and the moving party is entitled to a judgment as a
matter of law.   Rule 56(c), ~.R.Civ.p.

                                   3
                                   I
      Appellants argue that the lien they recorded was a valid and
enforceable lien and that it was error for the District Court to
declare it null and void and strike it from the records of the
Flathead County Clerk and Recorder.          Section 71-3-102, MCA,
provides that liens are created by either a contract between the
parties or by operation of law.     There was no contract between the
parties creating the lien in question.        The lien filed by the
appellants is not recognized in Title 71, MCA, which sets out the
statutory liens in Montana. The lien filed by the appellants was
neither created by operation of law nor by contract. The District
Court was correct in finding that there were no genuine issues of
material fact and that the respondents were entitled to judgment as
a matter law.
                                  I1

      Additionally, the appellants cite as error the District
Court's refusal to consider their counterclaims.            Appellants
brought a counterclaim seeking the return of certain items of
personal property and money allegedly owed to them by respondents.
Appellants also sought damages for wrongful prosecution. Following
the   respondents'   reply   to   the   counterclaim, the   appellants
attempted to file, without leave of the court or the written
consent of opposing counsel, an amended answer and counterclaim.
This amended counterclaim was essentially the same as the first,
the only difference being the appellants now sought an increased
damage award from the respondents.          In that the respondents

                                    4
prevailed in their complaint, the District Court dismissed with
prejudice any cause of action alleged by the appellants that
purported to have a basis in the theory of malicious prosecution.
The District Court was correct in concluding that the appellants'
malicious prosecution claim could not go forward because the
respondents prevailed on the merits of their action.
     That portion of the appellants' counterclaim which alleged a
cause of action for the return of certain items of personal
property was designated a permissive counterclaim by the District
Court.   The court, in its discretion, dismissed without prejudice
the appellants' cause of action.
     We hold that the District Court was correct in determining
that the respondents were entitled to summary judgment and that the
District    Court   did   not   err   in   dismissing   the   appellants'
counterclaims.      We affirm the District Court's Order in its
entirety.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company.




                                      5
We concur:




             6
                                    January 7, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named


RICHARD H. SINGER
3326 N. 37th Ave.
Phoenix, AZ 85019


James C. Bartlett
HASH, O’BRIEN & BARTLETT
136-1st Avenue West
P.O. Box 1178
Kalispell, MT 59903-1178


                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
