ROCHE v SABO
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No. 93-074 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 WILLIAM w. ROCHE, Petitioner and Appellant, -vNANCY 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: Decided: May 27, 1993 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. detainer/eviction Roche was a defendant in an unlawful 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, Section with 25-33-101, respect MCA, to appeals from Justice Court, 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 judgment In exclusive was failing entitled by way to to method of appeal properly use find circumstances of this as no Intervener awarding and exercise mandamus Finally, we of a trial that de the of Justice Court in District Court. nova right of appeal, he is not substitute. abuse of Howard discretion his The case. review by District Court District Court fees attorney the under the 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 524, an 527, we v. upheld intervener in a powers. Similarly, supported by Court this in the Affirmed. We Concur: State the District 226 Court's mandamus action we that record case. (1987), find and was Mont. 350, award of pursuant the award within the to of 355, attorney the powers P.2d fees Court's attorney equity 735 to equity fees of is the 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
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