No. 12188
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1972
WYOMING FARM BUREAU M T A INSURANCE
UU L
C M A Y a Corporation,
O P N ,
P l a i n t i f f and Respondent,
W L E E. MONDALE , RALPH M R H L BEATTY ,
ATR AS AL
JOHN M. BEATTY, and M R Z M. BEATTY,
YTE
Defendants and Appellants.
Appeal from: District Court of t h e Tenth J u d i c i a l D i s t r i c t ,
Honorable LeRoy L. McKinnon, Judge presiding.
Counsel of Record:
For Appellants :
Walter E Mondale argued, Lewistown, Montana.
.
For Respondent:
Robert L. Johnson and William Berger, Lewistown,
Montana.
William Berger argued, Lewistown, Montana.
Submitted: January 12, 1972
Decided :a& ffz
I7
F i l e d :JAM 1 1972
PER CURIAM:
T h i s a p p e a l h a s been t a k e n by one o f t h e d e f e n d a n t s ,
Walter E. Mondale, on h i s own b e h a l f . Mondale t h e n f i l e d i n
t h i s C o u r t a motion t o s t a y e x e c u t i o n on t h e d i s t r i c t c o u r t
judgment f o r t h e r e a s o n , h e contended, i f t h e e x e c u t i o n be n o t
s t a y e d h i s a p p e a l may become moot,
T h i s motion was p r e s e n t e d e x p a r t e and we i s s u e d a n
order t o show c a u s e , a l s o t e m p o r a r i l y s t a y i n g e x e c u t i o n on t h e
judgment. The p l a i n t i f f - r e s p o n d e n t i n s u r a n c e c a r r i e r f i l e d a
motion t o quash t h e o r d e r t o show c a u s e and a l s o t o quash t h e s t a y
of execution, The matters were f u l l y argued by c o u n s e l on t h e
r e t u r n day o f t h e o r d e r t o show c a u s e ,
I t appeared from t h e f i l e s and from t h e argument t h a t
judgment w a s e n t e r e d i n t h e d i s t r i c t c o u r t a g a i n s t a l l d e f e n d a n t s .
Appealing d e f e n d a n t Mondale a p p l i e d t o t h e d i s t r i c t c o u r t f o r a n
o r d e r s t a y i n g e x e c u t i o n of t h e judgment and r e c e i v e d such a n
o r d e r as t o him. Execution was i s s u e d upon t h e judgment and l e v y
made by t h e s h e r i f f upon t h e bank a c c o u n t s o f t h e o t h e r defend-
ants. T h i s b r i n g s i n t o f o c u s t h e c o n t e n t i o n o f Mondale t h a t i f
t h e judgment i s s a t i s f i e d it might c a u s e h i s a p p e a l t o become
moot, The nonappealing d e f e n d a n t s have n o t p r o t e s t e d t h e l e v y
upon t h e i r p r o p e r t y t o s a t i s f y t h e judgment and have r e q u e s t e d
c o u n s e l f o r t h e i n s u r a n c e carrier t o conclude t h e matter. The
p l a i n t i f f - r e s p o n d e n t c o n t e n d s t h a t t h i s C o u r t h a s no j u r i s d i c -
t i o n o v e r t h e nonappealing d e f e n d a n t s and t h e r e f o l r M o n d a l e s h o u l d
n o t b e a b l e t o a p p l y f o r o r s e c u r e a s t a y o f e x e c u t i o n as t o them,
Mr. Chief J u s t i c e B r a n t l y i n MacGinniss v , B. & M.C.C. &
S.M. Co., 29 Mont. 428, where a somewhat similar situation
existed in that it was contended that the district court had no
jurisdiction over a certain corporation because it had never
been served with process nor appeared in the action, commented
in his opinion that it was not necessary to consider that ques-
tion because if the district court had no jurisdiction over the
corporation by service of process, that corporation was not
aggrieved by the order. Further, if the court had jurisdiction,
and the corporation was aggrieved by the order, it took no ap-
peal, and can obtain no relief from this Court, except insofar
as the relief granted to the appealing defendants may incidentally
affect its rights.
This same principle was cited by Mr. Justice Holloway in
his opinion in American Surety Co. of N.Y. v. Kartowitz, 59
Mont. 1, 195 P. 99.
Thus it appears that this Court should grant no relief
to nonappealing defendants, and an appealing defendant cannot
seek relief on their behalf. In this situation the contention
of the plaintiff-respondent is correct and its motions to quash
the order to show cause and the stay of execution of the judgment
insofar as the nonappealing defendants are concerned should be
sustained.
It is so ordered, and our order to show cause is hereby
quashed, the stay of execution is likewise quashed and appellant
Mondale's motion is denied.
DATED this 17th day of January, 1972.