WYO FARM MUTUAL INS v MONDALE

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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, AS AL W L E E. MONDALE , RALPH M R H L BEATTY , ATR 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: Decided F i l e d :JAM 1 1972 January 12, 1972 :a& ffz I7 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 defendants. 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 question 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 appeal, 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.

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