                                            No.    89-344

                I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                  1989

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APPEAL FROM:      District Court of t h e F i r s t J u d i c i a l District,
                  I n a n d f o r t h e Co.unty o f L e w i s & C l a r k ,
                  The H o n o r a b l e J e f f r e y S h e r l o c k , J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

         For Appellant:

                  Tom a n d V i c k i F i e l d s , p r o s e , M e n t o r , O h i o

         For Respondent:

                  J o h n H . G r a n t ; J a c k s o n , Murdo & G r a n t , H e l e n a ,
                  Montana




                                                  Submitted on B r i e f s :            Sept.     1 5 , 1989

                                                     Decided:         October 17,            1989


Filed:
J u s t i c e Diane G.         Barz d e l i v e r e d t h e Opinion of                       t h e Court.


          Plaintiffs,          Thomas          M.     and     Vicki        J.     Fields,          filed    a
complaint           in   the       District           Court       of       the     First           Judicial
District,         Lewis and C l a r k County,                    s e e k i n g monies a l l e g e d l y
due from d e f e n d a n t , Mae W e l l s .                The D i s t r i c t Court d i s m i s s e d
t h e complaint with prejudice.                        P l a i n t i f f s appeal.           W affirm.
                                                                                              e
          On a p p e a l , e a c h p a r t y s e t s f o r t h i t s own v e r s i o n o f t h e
issues.        However, t h e germane i s s u e s r a i s e d on a p p e a l a r e :
     1.        Whether t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n i n
denying p l a i n t i f f s '       r e q u e s t f o r a c o n t i n u a n c e o f t h e May 5 ,
1989 t r i a l .
        2.          Whether        the     District            Court        erred           in     granting
d e f e n d a n t ' s motion t o d i s m i s s p l a i n t i f f s 1 c o m p l a i n t .
        3.          Whether         the      District           Court           erred        in     denying
plaintiffs'          r e q u e s t s t o o r d e r d e f e n d a n t t o p o s t bond and t o
name o t h e r s a s c o d e f e n d a n t s i n t h e a c t i o n .
        4.      Whether d e f e n d a n t i s e n t i t l e d t o h e r a t t o r n e y f e e s
t h a t were i n c u r r e d a s a r e s u l t o f t h i s a c t i o n .
          Thomas M.        and V i c k i J . F i e l d s , p l a i n t i f f s , b r o u g h t t h i s
a c t i o n i n January,           1987, a l l e g i n g t h a t Mae W e l l s , d e f e n d a n t ,
breached        a    contract          for      the     sale          of    a    mobile           home    and
therefore           owed     them         over        $4,000.              After        a        series    of
u n f o r e s e e n d e l a y s , a s c h e d u l i n g c o n f e r e n c e was h e l d on March
3, 1989 and t h e t r i a l was s e t f o r May 5 , 1989.                               The F i e l d s e s ,
who    currently           reside       i n Mentor,            Ohio,       did not           attend       the
scheduling           conference.                 Therefore,            pursuant             to     Montana
Uniform D i s t r i c t C o u r t Rule No. 1 0 , Wells s e n t t h e F i e l d s e s a
n o t i c e d a t e d March 1 3 , 1989, a d v i s i n g them o f t h e t r i a l d a t e ,
t h e s c h e d u l i n g c o n f e r e n c e o r d e r , and t h a t t h e y s h o u l d e i t h e r
a p p e a r a t t r i a l o r h i r e an a t t o r n e y t o e n t e r an a p p e a r a n c e on
t h e i r behalf.          The F i e l d s e s responded w i t h a "Reply t o C o u r t
Order f i l e d Mar.          6,     1989" d a t e d March 11, 1989 and " V a r i o u s
Motions"        dated       March        19,        1989.        In    these       documents,             the
F i e l d s e s informed t h e c o u r t t h a t t h e y f e l t c o n f i d e n t t h a t t h e
court could fairly judge the case based upon their March 11,
1989 letter and without them being present for the May 5,
1989 trial.
     In a March 30, 1989 letter to the Fieldses, the District
Court stated explicitly that if they did not attend the May
5, 1989 trial, they would automatically lose and the case
would be dismissed.    The District Court further explained
that although it may bend certain procedural rules for
individuals not represented by attorneys, certain rules
cannot be waived, including a party's right to require the
opponents to appear and to cross-examine them.
      The Fieldses subsequently filed a letter with the court
dated April 3, 1989, stating that they ,understood that they
would automatically lose the case if they did not appear for
the May 5, 1989 trial, but nonetheless asserted that they
should not be required to appear. The Fieldses then filed a
request for continuance dated April 2 4 ,      1989 with the
District Court.    A copy was not sent to Wells or her
attorney.   In their "motion for continuance," the Fieldses
stated that they have sought to obtain competent counsel but
asserted that the attorneys they contacted "felt that the
financial condition of the defendant and the size of the
amount owed [could not] justify the cost that the court is
asking [them] to incur."     The District Court denied the
motion.
      The Fieldses did not appear at the May 5, 1989 trial
nor did an attorney appear on their behalf.       The District
Court therefore granted FJells' motion to dismiss, stating
that the Fieldses failed to file a pretrial order by April
24, 1989, as ordered by the court; they failed to appear for
the May 5, 1989 trial; and they failed to comply with the
court's scheduling order. The court dismissed the complaint
with prejudice and awarded Wells the costs of her suit. The
Fieldse~appeal.
     The first issue raised on appeal is whether the District
Court abused its discretion in denying the Fieldses' request
for a continuance of the May 5, 1989 trial.
     Sections 25-4-501 and -503, MCA, are the two statutory
grounds under which a district court is authorized to grant a
continuance. Section 25-4-501, MCA, states that " [a] motion
to postpone a trial on grounds of the absence of evidence
shall only be made upon affidavit showing the materiality of
the evidence expected to be obtained and that due diligence
has been used to procure it." Section 25-4-503, MCA, states
that "[ulpon good cause shown and in furtherance of justice,
the court may, in its discretion, postpone a trial or
proceeding upon other grounds than the absence of evidence
under such conditions as the court may direct." The District
Court denied the Fieldses' motion for continuance on the
grounds that they failed to provide a good reason.
      On appeal, this Court's function is to determine
whether the District Court abused its discretion.      In the
present case, the Fieldses did not meet the requirements
mandated in either of the statutes that allow postponement of
a trial.   The Fieldses submitted neither an affidavit that
showed the materiality of the evidence that they expected to
obtain nor did they demonstrate a good cause that would allow
the District Court, in its discretion, to postpone the trial.
The Fieldses merely stated that they were attempting to
locate an attorney to represent them and then provided a list
of attorneys they supposedly contacted.
     The record reveals that the Fieldses had ample time in
which to locate an attorney to represent them.      They were
first notified by a letter dated March 13, 1989 from Wells'
attorney suggesting they procure an attorney to represent
them and then subsequently by a letter from the District
Court dated March 30, 1989. The Fieldses did not set forth a
good cause as to why they were unable to obtain a counsel.
The District Court therefore did not abuse its discretion in
denying Fieldses' motion for a continuance.
      The second issue raised on appeal is whether the
District Co.urt erred in granting Wells' motion to dismiss the
Fieldses' complaint.
     The District Court sent a letter to the Fieldses dated
March    30,  1989, stating explicitly that they would
automatically lose the case if they did not appear for the
May 5, 1989 trial.      The Fieldses did not appear at the
required time set for the trial.          The District Court
therefore granted Wells' motion to dismiss, stating that the
Fieldses failed to appear at the time and place set for trial
and that they also failed to comply with the court's
scheduling order regarding preparation and filing of a
pretrial order.
     The Fieldses argue that considering the excessive cost
they "feel that unless [Wells] can demonstrate a need for
[their] appearance at the hearing, there is no reason for
it."    The Fieldses reason that the case rests upon the
documents already submitted to the court, and that any
questions about these documents can be answered either by
mail or by checking the public repositories for such records.
     Unfortunately, the Fieldses' misunderstanding of the law
and their decision to ignore court directives has resulted in
a failed attempt to bring a successful lawsuit. The Fieldses
insist that they did not need to attend the May 5, 1989
trial, however, the law dictates otherwise.       The Fieldses
rely upon their March 11, 1989 letter to the District Court
as sufficient evidence upon which the District Court could
"fairly judge" the case.     An examination of the March 11,
1989 letter, however, demonstrates that it is replete with
hearsay. Hearsay is defined in our statutes as "a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of
the matter asserted. " Rule 801 (c), M.R.Evid.   The March 11,
1989 letter contains numerous statements regarding the sale
of the mobile home to Wells. The unsworn written statements
were made out of court and did not afford Wells the
opportunity to confront the writers--the Fieldses--or to
question them as to the veracity of the statements. Under
Rule 802, M.R.Evid., "[hlearsay is not admissible except as
otherwise provided by statute, these rules, or other rules
applicable in the courts of this state." No exceptions are
applicable in this case.    The District Court therefore did
not abuse its discretion in granting Wells' motion to dismiss
the Fieldses' complaint.
     The third issue raised on appeal is whether the District
Court erred in denying the Fieldses' requests to order Wells
to post bond and to name others as codefendants.
     In light of the disposition of issues number one and
two, we do not need to address this issue.
     The last issue raised on appeal is whether Wells is
entitled to her attorney fees that were incurred as a result
of this action.
     The contract underlying this dispute provides that "[ilf
legal action is necessary to enforce any of the provisions of
this agreement, the successful party is entitled to his costs
and reasonable attorney fees as determined by a court of
competent jurisdiction."     Wells requested her costs and
attorney fees in her counterclaim that she filed with the
court dated March 24, 1987. In its May 12, 1989 Memorandum
and Judgment, the District Court ordered the case dismissed
with prejudice and awarded Wells the costs of her suit, but
did not address the issue of attorney fees.
     We have previously stated that a party's right to
attorney fees is based upon either a statute or an underlying
contract which provides for their recovery.      Northwestern
Nat'l Rank v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 44,
729 P.2d 1258, 1264; Diehl and Assocs. v. Houtchens (1979),
180 Mont. 48, 53, 588 P.2d 1014, 1017.      In this case, the
underlying contract provides for the recovery of attorney
fees for the successful party in the lawsuit. The District
Court issued a final judgment by dismissing the Fieldses'
complaint with prejudice.   Wells therefore emerged as the
successful party.    We therefore remand this case to the
District Court for a determination of reasonable attorney
fees due Wells as a result of this lawsuit--fees generated
from both the District Court action and the appeal--and for
any additional costs that she incurred as a result of this
appeal.
     Affirmed and remanded.




                                  Justice              \    \


We concur:




Justices

Justice John C. Sheehy recuses himself from participation
in this case.
