                                 No. 84-98
                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      1984




CI-IARLE ADAMS ,
       S

               Plaintiff and Respondent,


ROBERT M. CRISMORE, JEAN CRISMORE
and R.M. CRISMORE, INC., a Pqont.
corp. ,
               Defendants and Appellants.




APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of the Lake,
               The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:

     For Appellants:

               Murray, Kaufman, Vidal    &   Gordon; Daniel W. Hileman,
               Ralispell, Montana


     For Respondent :

               Keith C. Rennie, Polson, Montana




                                 Submitted on Briefs:    April 26, 1984
                                              Decided:   Jxly 10, 1984


Filed:




                                 Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
      Charles Adams, plaintiff, obtained a default judgment
against Robert M. Crismore, defendant, in the Justice Court
of Polson on September 21, 1983.                 Defendant appealed the
default judgment to the District Court of the Fourth Judicial
District in Lake County.              On December 8, 1983 the District
Court entered a judgment denying defendant's motion to set
aside    and    dismiss the      Justice Court's       default    judgment.
Defendant appeals.
      Plaintiff filed two actions against defendant on August
29, 1983.       One complaint filed in the Justice Court of Polson
Township sought damages from defendant for nonpayment of a
debt on a personal loan and for services rendered as an
independent contractor.            The    second action filed         in the
District Court of Lake County claimed damages from defendant
for unpaid wages owed plaintiff.              Plaintiff's counsel served
both complaints upon defendant in Kalispell, Flathead County,
Montana.
      Defendant filed a special appearance motion to dismiss
alleging lack of personal jurisdiction over defendants by
,Justice Court of Polson Township since defendants resided
outside    of    Lake   County    and were      improperly     served with
process outside of Lake County.               At a hearing on September
21,     1983    the   Justice    of     the   Peace   ruled    that   proper
jurisdiction of the Justice Court had been invoked, denied
defendant's motion to dismiss for lack of jurisdiction and
subsequently entered a default judgment against defendant.
      Defendant filed a notice of appeal to the District Court
along with the requisite undertaking on September 26, 1983.
Plaintiff       immediately     filed    an   objection   to   undertaking
claiming that it was fatally defective and failed to perfect
a proper appeal.          Defendant was requested to provide               3   good
and sufficient undertaking within a reasonable time.
      Defendant moved the District Court to consolidate the
appeal from the Justice Court with the existing District
Court action.          Plaintiff filed an objection to defendant's
motion    for    consolidation, claiming                that   the   motion    was
untimely and that all actions by the District Court should be
postponed until defendant's appeal was properly perfected by
a sufficient undertaking or otherwise dismissed.                      Defendants
failed to cure the defective undertaking.                       On October 24,
1983, plaintiff filed a motion to dismiss defendant's appeal
because the fatal insufficiency in the undertaking failed to
invoke the proper jurisdiction of the District Court.
      A hearing on November 2, 1983 was held before retired
district judge, the Honorable E. Gardner Brownlee, sitting in
place    of     the    Honorable       Douglas     G.    Harkin.       Defendant
contended that since the Justice Court acted without personal
jurisdiction, its judgment was rendered a nullity and subject
to a collateral attack which did not require an undertaking

to be filed.          Additionally, defendant requested the District
Court to consider his appeal as a writ of review.                          At the
hearing, defendant filed and served on plaintiff, without
prior notice, a motion to set aside Justice Court judgment
and   dismiss.         The court granted plaintiff two weeks                     to
respond to defendant's motion.                   On November 18, plaintiff
appeared before Judge Brownlee and argued that the District
Court    lacked       proper       jurisdiction to       rule on     defendant's
motion to dismiss because defendant's defective undertaking
had not been corrected.                The trial court did not require
defendant     to      file     a    sufficient    undertaking        and   granted
defendant's motion to dismiss the justice judgment.
     November      21,   plaintiff   filed     a   rule    60(b)    motion
requesting the District Court to set aside its ruling of
November 18, and to consider plaintiff's motion to dismiss
the appeal for lack of district court jurisdiction.                 Having
resumed jurisdiction over his cases, Judge Harkin presided at

the November 30 hearing where all parties were represented by
counsel.     The District Court's order of Decemher 8, modified
its previous order pursuant to Rule 60(b), M.R.Civ.P.                  and
granted plaintiff's motion to dismiss defendant's appeal due
to   lack     of   jurisdiction      since    defendant's        requisite
undertaking was      defective and     such insufficiency was not
corrected.
     Appellant presents the following issues on appeal:
     1.      Whether     the   District    Court   erred    in     granting
plaintiff's motion to dismiss defendants' appeal from the
Justice Court.
     2.     Whether the District Court erred in not acting upon
defendants' motion to consolidate.
     The dispositive issue before this Court is whether the
District Court had proper jurisdiction to address the appeal
from the lower court judgment.            Jurisdiction of the Justice
Court is not at issue on appeal and not discussed herein.
     Appellate procedure        to district court from justices'
courts is set out in 25-33-201, MCA,           the pertinent part of
which states:
     "25-33-201. Undertaking on appeal. (1) An appeal
     from a justice's or city court is not effectual for
     any purpose unless an undertaking be filed, with
     two or more sureties, in a sum equal to twice the
     amount of the judgment, including costs, when the
     judgment is for the payment of money .          . ."
     In State ex rel. Gregory v. District Court (1930), 86
Mont. 396, 398, 284 P. 537, this Court held:

     "The settled rule is that an undertaking on appeal
     in substantial compliance with the sta.tute is made
        a prerequisite to clothe the district court with
        jurisdiction on an attempted appeal to the district
        court, and if such undertaking is not filed, or is
        totally defective, the appeal is a mere nullity."
        Unless an appeal from a justice's court is effectuated
in accordance with         the controlling statute, the district
court has no jurisdiction of the appeal.              The subject appeal
was     not   properly    perfected   due      to   deficiencies    of    the
a.ccompanying requisite undertaking.            Although the sum of the
undertaking was sufficient, the singular signature violates
25-33-201, MCA, which clearly requires two or more sureties.
In addition, Empire Construction Company, Inc., which appears
on.   the      undertaking,    is     a   foreign      corporation,       not
incorporated under the laws of this State for the purpose of
making, guaranteeing or becoming a surety and thus is not a
valid     corporation     surety    pursuant    to    33-26-101(1),      MCA.
Moreover, the trial court judge unequivocably recognized that
the appellant's undertaking filed with the notice of appeal
failed to comply with statutory criteria.
        Section 25-33-207, MCA provides:
      "Defective undertaking.      No appeal shall be
      dismissed for insufficiency of the undertaking
      thereon or for any defect or irregularity therein
      if a good and sufficient undertaking be filed in
      the district court at or before the hearing of the
      motion to dismiss the appeal, which undertaking
      must be approved by the district judge."
      The record reveals that the defendant had adequate time
to provide a. sufficient and good undertaking prior to or on
the day of the November 2 hearing but failed to cure said
defects.
      Due to the defendant ' s defective undertaking his appeal
is unperfected as a matter of law, and fails to properly
invoke the jurisdiction of the District Court.                     District
Court's       judgment   granting   plaintiff's      motion   to   dismiss
defendant's appeal due to lack of jurisdiction is affirmed.
T h e r e f o r e , t h e s e c o n d i s s u e i S moot.




W e concur:
