                              No.    90-169                     I




            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



ROBERT B. FRANKLIN,
            Plaintiff and Respondent,
     -vs-
A. WESLEY SWENSON,
            Defendant and Appellant.



APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Patrick F. Flaherty, Flaherty       &   Winner, Great Falls,
                Montana
       +    For Respondent:
                Joan E. Cook, Miller       &   Cook, Great Falls, Montana


                               Submitted on Briefs:          August 9 , 1990




                                Clerk
 I
                                                             9    I




Justice Fred J. Weber delivered the Opinion of the Court.


     Defendant's appeal from Justice Court to the District Court
of the Eighth ~udicial~istrict,Cascade County, was dismissed on
the grounds that the undertaking      filed   failed to meet     the
requirements of either 5 5 25-33-201 or 25-33-205, MCA.     From that
decision, defendant appeals to this Court.    We reverse.
     The sole issue for our review is whether the District Court
properly dismissed Swensonls appeal from Justice Court?
     plaintiff, Robert Franklin (Franklin), filed a complaint in
Cascade County Justice Court alleging that defendant, Wesley
Swenson (Swenson), negligently prepared Franklin's 1987 Federal
and State Income Tax returns.   The Justice Court entered judgment
against Swenson for taxes and accrued interest in the sum of
$2,015.50 ($1,977 + costs of $38.50), and attorney fees of $600.
     Swenson filed a notice of appeal and demand for jury trial to
the District Court.   He then filed an affidavit and posting of
property bond as security for appeal, promising to sell his home,
and from the resulting equity pay to Franklin the judgment and
associated costs should Franklin again prevail in the District
Court.   Swenson filed a $500 undertaking for costs on appeal
executed by Western Surety Company as surety.
     Swenson also filed with the Clerk of Court a one year
Certificate of Deposit (CD) with a face value of $2,287.14.      The
CD was in the names of Arden W. or Romayne E. Swenson as joint
tenants with     right of   survivorship.   Defendant executed   an
assignment of the CD to the Clerk of Court.     Romayne E. Swenson
did not execute such a document.        The Bank acknowledged the
assignment of the CD.
     Franklin moved     to dismiss the appeal arguing Swenson9s
undertaking was defective due to a lack of the requisite sureties.
A hearing was held on Franklin's motion and the District Court
dismissed the appeal on the grounds that Swenson failed to comply
with 5 25-33-201, MCA, or in the alternative, S 25-33-205, MCA.
From that decision, Swenson appeals to this Court.
     Did the District Court properly dismiss Swenson9sappeal from
Justice Court?
     The District Court concluded that Swenson failed to comply
with either 5 25-33-201, MCA, or 5 25-33-205, MCA.    Section 25-
33-201, MCA, provides that an undertaking must be filed with "two
or more sureties, in a sum equal to twice the amount of the
judgmentf9. Section 25-33-205, MCA, provides for the deposit of
money in lieu of undertaking and states:
     Whenever an undertaking is required on appeal by the
     provisions of this chapter, a deposit in the court below
     of the amount of the judgment appealed from plus $300  .
     . .
     The District Court concluded that since Swenson filed with
only one surety, the alternative procedure provided by S 25-33-
205, MCA, applied. However, the District Court also concluded that
Swenson failed to comply with the alternative procedure.         It
concluded that the CD deposited with the Clerk of Court was not
properly assigned because both joint tenants did not execute an
assignment.     It further concluded that the amount deposited with
the Clerk of Court was insufficient.
     Section 25-33-205, MCA, requires a deposit in the amount of
the judgment ($2,015.50) plus $300 ($2,315.50)     .   The District Court
held that the CD would have had to have been in the name of A.
Wesley Swenson alone or both joint tenants should have executed
assignments.    The District Court further held that the $500 cost
bond filed by Swenson was not in an amount sufficient to meet the
requirements of 9     25-33-201, MCA, nor was it filed with          two
sureties.
     Swenson maintains that substantial compliance with the statute
is sufficient to perfect the appeal from the Justice Court to the
District Court. He argues that under 5 25-33-205, MCA, his deposit
was short only $28.36.     (Statutory amount of $2,315.50 less face
value of CD of $2,287.14 equals $28.36)    .    He urges that the true
measure of the CD is the I1cash"value rather than the I1facenvalue.
The cash value of the CD at the date of assignment was $2,475.83,
which exceeded the required $2,315.50.         Swenson further contends
that his assignment of the CD was valid.       He argues that one joint
tenant on a CD can transfer the CD without consent of the other
joint tenant.
     Franklin maintains that the CD was defective because it was
not in the correct amount and because Romayne Swenson did not
execute an assignment of her interest.             He further maintains that
the $500 bond is statutorily insufficient because it was not signed
by two sureties.
      The    purpose     for    requiring    an    undertaking     is   for    the
preservation of the rights of the litigants as established by the
justice     court.       An    undertaking    on    appeal    in   "substantial
compliancevrwith the statute clothes the District Court with
jurisdiction.        State ex rel. Gregory v. District Court (1930), 86
Mont. 396, 284 P. 537; Adams v. Crismore (1984), 211 Mont. 245, 683
P.2d 497.     When the undertaking is insufficient a new one may be
filed, and the appeal saved. rvInsuf
                                   ficientvr
                                           means merely defective
and   not    void.      A     "voidw undertaking      is     equivalent   to   no
undertaking. An ambiguous undertaking was declared void in Pirrie
v. Moule (1905), 33 Mont. 1, 6, 81 P. 390, 392. If the undertaking
filed is void the appeal must fail for lack of jurisdiction.
Goldsmith v. Lane (1987), 226 Mont. 341, 735 P.2d 306.
      Because Swenson did not file with two sureties, 5 25-33-205,
MCA, controls.        Under that statute Swensonrs deposit of money in
lieu of the undertaking was only $28.36 short.                We conclude that
Swenson's undertaking was merely insufficient and in substantial
compliance with the statute. We hold that the District Court erred
in dismissing Swensonrsappeal from Justice Court. We further hold
that on remand, Swenson shall be allowed to perfect his undertaking
by depositing the correct amount ($2,315.50) with the Clerk of
Court.      The Clerk shall release the CD and assignment so that
Swenson can cash the CD by September 21, 1990, according to its
terms.   Cash in the amount of $2,315.50 shall be deposited with
the Clerk of Court.         Should Swenson fail to so deposit the cash
proceeds on or before September 21, 1990, the appeal shall be
dismissed.
     Reversed and remanded.
                                                                         ,




We concur:




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