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                                                                No. 98-128




                           IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                             1998 MT 226N




                                            WILLIAM R. GIBSON, d/b/a GIBSON

                                                ADVERTISING AND DESIGN,




                                                      Plaintiff and Respondent,




                                                                       v.




                                              PHIL COUCH and KELLY HOOD,

                                                         THE AUTO SHOW,




                                                    Defendants and Appellants.




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                                                             APPEAL FROM: District Court of the Thirteenth Judicial
                                                                                 District,

                                             In and for the County of Yellowstone,

                                         Honorable G. Todd Baugh, Judge Presiding.




                                                     COUNSEL OF RECORD:




                                                             For Appellants:




                                                    Phil Couch (pro se), Billings




                                                            For Respondent:




                                            William R. Gibson, Jr. (pro se), Billings




                                               Submitted on Briefs: July 16, 1998




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                                                    Decided: September 10, 1998




                                                                     Filed:




                                    __________________________________________

                                                                     Clerk




                      Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ Phil Couch appeals from a money judgment entered against him in the Thirteenth
Judicial District Court, Yellowstone County. He states the issue as whether the lower
courts erred in failing to dismiss the complaint as filed in an improper venue.
However, because we determine that this appeal is moot, we do not reach that issue.

¶ In November 1996, William Gibson d/b/a Gibson Advertising and Design filed a
complaint in the Yellowstone County Justice Court against Couch, Kelly Hood, and
their business, The Auto Show. Gibson claimed that the defendants owed him $700
for layout and design of a logo for The Auto Show. Gibson's business is located in
Yellowstone County; The Auto Show is located in Gallatin County. Couch was the
only defendant served with process. He thwarted service of process upon Kelly Hood
by assaulting the process server.


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¶ In both the Justice Court and the Yellowstone County District Court, to which
Couch appealed for de novo review, Couch moved to dismiss this action on grounds
that Yellowstone County was an improper place for trial. Both the Justice Court and
the District Court denied Couch's motions to dismiss and subsequently entered
judgment against him in the amount of $700 plus interest and costs.

¶ The District Court's judgment was entered on December 22, 1997. Couch filed a
notice of appeal on January 19, 1998, and on January 31, 1998, moved to convert the
bond he had filed on appeal from Justice Court to a supersedeas bond pending
appeal to this Court. The District Court, noting that the appeal bond no longer
existed because it had been used to satisfy the District Court judgment, determined
that the motion was moot and denied it.

¶ A moot question is one which existed once but no longer presents an actual
controversy. Ruckdaschel v. State Farm (1997), 285 Mont. 395, 396, 948 P.2d 700, 701.
A party may not claim an exception to the mootness doctrine where the case has
become moot through the party's own failure to seek a stay of a judgment. Turner v.
Mountain Engineering and Const., Inc. (1996), 276 Mont. 55, 60, 915 P.2d 799, 803.

¶ Here, Couch waited over a month following the entry of judgment against him to
move to have his Justice Court appeal bond converted to a supersedeas bond, and he
never moved the District Court for a stay of execution of judgment. In the meantime,
Gibson's judgment against him was satisfied. We hold that the judgment in this case
having been satisfied, the venue question which Couch raises on appeal is moot.
Accordingly, we dismiss this appeal.

/S/ J. A. TURNAGE



We concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART


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Justice James C. Nelson dissents.




¶ I respectfully dissent. In my view the Court's approach misses the mark
completely. The District Court's decision should be reversed with instructions that
Gibson's complaint be dismissed without prejudice.

¶ It makes little sense to write a long and involved legal analysis in opposition to a
two-page, noncitable opinion. Accordingly, I state my rationale in very summary
fashion. On the facts of this case and under the version of Rule 3.A.(1)(b), of the
Montana Justice and City Court Rules of Civil Procedure (M.J.C.C.R.Civ.P.) in
effect at the time Gibson filed his complaint and at the time the Justice Court entered
judgment, Gibson was required to file his action in Gallatin County. Yellowstone
County was not a proper place for trial of Gibson's cause. Under Rule 3.B.,M.J.C.C.
R.Civ.P., "[w]hen the county . . . in which the complaint is filed is not the proper
county . . . for . . . trial, the complaint must be dismissed without
prejudice." (Emphasis added.) Moreover, under Rule 3.C.(4), M.J.C.C.R.Civ.P., "[i]f
the objection that the action is brought in the wrong county . . . is taken at trial and
overruled, it may be the cause of a reversal on appeal and does not otherwise
invalidate the judgment."

¶ In the case at bar, since Yellowstone County was not the proper place for the trial
of Gibson's action, the Justice Court was required to dismiss his complaint without
prejudice. Furthermore, since Couch objected to the place of trial in Justice Court
and since his objection was overruled, the District Court was obligated to entertain
his appeal and to reverse the judgment of the Justice Court.

¶ This Court's mootness approach is simply a red herring. Why should Couch have
had to post a bond to secure a judgment that the rendering court never had authority
to enter in the first place? Moreover, the Justice Court judgment which was

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"satisfied" with the appeal bond was void ab initio since the court that rendered it
was without authority to do so. Finally, the majority cite no rule or other authority
that requires a litigant on appeal to district court from justice court to move to
convert his appeal bond to a supersedeas bond within some given time frame. The
District Court erred in failing to see the forest for the trees, and we have now
compounded the error.

¶ I would address the merits of Couch's appeal, and I would reverse with
instructions that Couch's complaint be dismissed without prejudice. I dissent from
our failure to do so.



/S/ JAMES C. NELSON




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