No. 93-074
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
WILLIAM w. ROCHE,
Petitioner and Appellant,
-v-
NANCY SABO, Justice of the Peace,
Ravalli County,
Respondent and Respondent,
and
PATRICK HOWARD,
Intervenor.
APPEAL FROM: District Court of the Twenty First Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William W. Roche, Grantsdale, Montana (pro se)
For Respondent:
George C. Corn, Ravalli County Attorney, Hamilton,
Montana; Patrick R. Howard, Hamilton, Montana (pro
se)
Submitted on Briefs: May 27, 1993
Decided: June 10, 1993
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Fourth Judicial District, Ravalli
County, wherein the District Court vacated a Peremptory Writ of
Mandamus dated May 29, 1992: dismissed the "Complaint at Law for a
Peremptory Writ of Mandamus" of William W. Roche, Petitioner and
Appellant herein; awarded attorney fees to lntervenor Patrick
Howard; and remanded to the Justice Court for further proceedings.
We affirm.
William W. Roche was a defendant in an unlawful
detainer/eviction case in the Justice Court of the Hon. Nancy Sabo,
Ravalli County Justice of the Peace.
After a bench trial, the Justice Court found against Mr. Roche
and ordered his eviction for nonpayment of rent. Mr. Roche filed
his Notice of Appeal from the Justice Court judgment, but failed to
perfect the appeal by filing the statutory undertaking prescribed
by 5 25-33-201, MCA. The appeal was subsequently dismissed.
Mr. Roche then filed a "Complaint at Law for a Peremptory Writ
of Mandamus" in the District Court. Patrick Howard, the
plaintiff/landlord in the Justice Court action, successfully moved
to intervene in the District Court case, and, in due course, moved
for judgment on the pleadings. Judge Sabo joined in the motion.
The District Court, stating that it considered matters outside the
pleadings, treated the intervener's motion as one for summary
judgment and entered its Findings of Fact, Conclusions of Law and
Order which found, inter alia, that Mr. Roche's approach to the
case was designed to frustrate the lawful, final judgment of the
2
Furthermore, with respect to appeals from Justice Court,
Section 25-33-101, MCA, provides:
Exclusive Method of Review. A judgment or order in a
civil action, except when expressly made final by this
code, may be reviewed as prescribed in this chapter and
not otherwise. A party aggrieved may appeal in the cases
prescribed in this chapter. (Emphasis added.)
Mr. Roche's exclusive method of review of the Justice Court
judgment was by way of appeal and trial de nova in District Court.
In failing to properly exercise that right of appeal, he is not
entitled to use mandamus as a substitute.
Finally, we find no abuse of discretion by the District Court
awarding Intervener Howard his attorney fees under the
circumstances of this case. The District Court found that:
Mr. Roche's approach to this case has been one designed
to frustrate the lawful judgment of the Justice Court and
prolong these proceedings for his personal financial gain
and with complete disregard for the law and proper
procedure. In such a case an award of attorney fees and
costs is proper and fitting.
In Christopherson v. State (1987), 226 Mont. 350, 355, 735 P.2d
524, 527, we upheld the District Court's award of attorney fees to
an intervener in a mandamus action pursuant to the Court's equity
powers. Similarly, we find that the award of attorney fees is
supported by the record and was within the equity powers of the
Court in this case.
Affirmed.
We Concur:
June 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
William W. Roche
604 N. Third St.
Hamilton, MT 59840
George H. Corn
County Attorney
Ravalli County Courthouse, Box 5008
Hamilton, MT 59840
Mr. Patrick R. Howard
361 Cartwright Way
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE ,OF MONTANA
I