CIOTTI v HOOVER
Annotate this Case
Download PDF
No. 88-365 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 KENNETH CIOTTI AND JORDANELLA CIOTTI, Plaintiffs and Respondents, ROBERT HOOVER, DIANE HOOVER, JOHN GERLETTI, and JENNIFER HENDRIX, Defendants and Appellants. APPEAL FROM: District Court of the Twentieth Judicial ~istrict, In and for the County of Sanders, The Honorable C. B . McNeil, Judge presiding. COUNSEL OF RECORD: For Appellant: Timothy J. Lape, Polson, Montana For Respondent t Thomas Alan Kragh; Rosscup & Kragh, Polson, Montana Submitted on Rriefs: Decided: U -.I Fgle&'? . f ~ * ' . .. --.3 1 ' ) -3 L. I I 1 . tl ' ; t c' ., -.-. . lerk -..-, March 2, 1989 June 6 , 1989 ~ u s t i c e John Court. Mr. The C. appeal judgment of entered in Sheehy delivered the defendant the District the John opinion of from Gerletti Court of the the a Twentieth ~ u d i c i a lD i s t r i c t , S a n d e r s County, c o n c e r n s t h e n e c e s s i t y o f appointing three referees i n a p a r t i t i o n action a s required Because w e f i n d t h e s t a t u t e was n o t f o l l o w e d i n by s t a t u t e . t h e District Court, we r e v e r s e t h e judgment and remand for f u r t h e r proceedings. There are four issues for review by this Court as follows: Did t h e D i s t r i c t C o u r t e r r by n o t a p p o i n t i n g t h r e e 1) (3) referees as mandated 5 70-29-202(l) by and (2), MCA, before partitioning the land i n t o three parcels? id t h e D i s t r i c t C o u r t e r r by f i n d i n g t h a t none of 2) the defendants objected to the appointment a of single r e f e r e e i n s t e a d of t h r e e r e f e r e e s ? Did 3) the d e f e n d a n t s waived their err Court District rights by finding that t o t h e appointment of the three referees? 4) Henson's Did the order err by ~ i s t r i c tC o u r t dated 16, July 1984 was finding in that Judge full force for deed and effect? The Leonard parties and entered Peggy smith S a n d e r s County, Montana. were three Gerlettis. are tenants couples; into for the a contract purchase of 200 ~ i o t t i s , the Hoovers The G e r l e t t i s have s i n c e d i v o r c e d . in purchase p r i c e . common, acres A t t h e t i m e of t h e purchase, the each paying an equal with in there and the The p a r t i e s part of the The p r o p e r t y h a s been p a i d f o r i n f u l l and t h e S m i t h ' s a r e no l o n g e r p a r t i e s t o t h i s a c t i o n . On May 18, 1983, the Ciottis filed a complaint for partition of the land because they were seeking financing and the bank would not lend on a mortgage without all the owners signing for the loan. The defendants, the Hoovers and Gerlettis were not personally served with the summons and complaint. Service was attempted by publication despite the Ciottis knowledge of the whereabouts of the defendants who resided out of state. In October, 1983, a default judgment was entered against the defendants. On July 16, 1984, an order was issued by Judge John S. Henson based on the default which ordered that the property be partitioned, that Hilman Hanson be appointed referee to partition the property and that the referee submit his report dividing the property to the ~istrictCourt. On October 10, 1984, Judge Henson signed an order confirming the referee's report and an amended order confirming the report was signed December 17, 1984. On April 11, 1985, the defendants filed a motion to set aside the judgment based upon lack of service and notice. On May 24, 1985, Judge C. B. M c ~ e i lsigned an order vacating the default judgment and declaring the orders of October 10, 1984 and December 17, 1984 void because the District Court was without jurisdiction to issue the default judgment and subsequent orders. On June 13, 1985, the defendants filed an answer to the original complaint. One year later, the Ciottis filed a motion for an order to partition the land, for the appointment of a single referee, that ~ i l m a n Hanson be appointed as that referee and for confirmation of Hanson's report which was previously submitted to the court. The motion was set for hearing July 8, 1986. Prior to the hearing, the parties met for a settlement conference. The Ciottis and Gerlettis each made a proposal for settlement. There is some disagreement about which proposal was agreed upon. John Gerletti contends that the only unresolved item was the cost to have the land surveyed but it appears that he wanted five acres which abutted the creek on the property that had been fenced by the Ciottis. The settlement conference failed and the matter was set for trial on December 21, 1987. Gerletti made a motion to compel compliance with the settlement agreement and it was decided that the motion would be treated as a counterclaim at trial. Trial was held on December 21, 1987 with only the ~ i o t t i s and John ~erletti appearing. in dings of fact, conclusions of law and judgment for partition were entered on March 1, 1988 denying Gerletti's counterclaim and partitioning the land into three parcels. No referees were appointed prior to the partitioning of the land. post-trial motions were filed by Gerletti addressing the appointment of referees and the court entered amended findings of fact, conclusions of law and judgment for partition on ~ p r i l 22, 1987. Again, no referees were appointed. Finding of fact no. 13 incorporates the July 16, 1984 order which appoints ~ i l m a n Hanson as the single referee, however the parties never consented to the appointment of a single referee. Additional post-trial motions regarding the appointment of his appeal referees were filed by ~erletti and denied. followed. I 1) Did the ~istrictCourt err by not appointing three (3) referees as mandated by S 70-29-202 (1) and (2), MCA before partitioning the land into three parcels? 2) Did the ~istrictCourt err by finding that none of the defendants objected to the appointment of referee instead of three referees? a single 3) Did the District d e f e n d a n t s waived their Court rights err by finding that t o t h e appointment o f the three referees? The first three issues regarding 5 70-29-202, MCA, g o v e r n i n g t h e p a r t i t i o n i n g o f p r o p e r t y and t h e a p p o i n t m e n t o f r e f e r e e s w i l l be addressed a s one. ( 2 ) provide i n p a r t , s e c t i o n 70-29-202(1) and a s follows: ... upon r e q u i s i t e p r o o f s b e i n g made, it [ t h e c o u r t ] must o r d e r a p a r t i t i o n a c c o r d i n g t o t h e r e s p e c t i v e r i g h t s o f t h e p a r t i e s a s a s c e r t a i n e d by t h e c o u r t and a p p o i n t t h r e e r e f e r e e s . . . ( 2 ) The c o u r t , - - c o n s e n t - -e p a r t i e s , with t h e of t h may a p p o i n t a s i n g l e r e f e r e e i n s t e a d o f t h r e e r e f e r e e s i n t h e proceedings under t h e p r o v i s i o n s of t h i s c h a p t e r , and t h e s i n g l e r e f e r e e , when t h u s a p p o i n t e d , h a s a l l t h e powers and may p e r f o r m a l l the duties of the three referees. (Emphasis added. ) The i n t e r p r e t a t i o n o f the appointment of this statute, referees, i n s o f a r a s it concerns h a s n o t been an issue before t h i s C o u r t u n t i l now, most l i k e l y b e c a u s e t h e l a n g u a g e o f t h e s t a t u t e i s c l e a r and d o e s n o t l e a v e any d i s c r e t i o n w h a t s o e v e r t o t h e D i s t r i c t Court. An a c t i o n f o r p a r t i t i o n i s a s p e c i a l s t a t u t o r y proceeding. Hurley v. 595, 79 P . 242, 243. OtNeill ( 1 9 0 5 ) , 31 Mont. "We must t h e r e f o r e l o o k t o t h e s t a t u t e and f o r t h e f o r t h e a u t h o r i t y t o b r i n g t h e a c t i o n - - - procedure it i t o be bo h - - f o l l o w e d -t -i n b r i n q i n g t h e a c t i o n and a f t e r - --s instituted." ( ~ m p h a s i sa d d e d . ) Lawrence v . Harvey (19801, 186 Mont. P. 314, 607 P.2d 551, 555, q u o t i n g H u r l e y , s u p r a , 79 a t 243. The s t a t u t e p r o v i d e s t h a t u n l e s s t h e p a r t i e s c o n s e n t t o t h e appointment o f appointed. erred. a single referee, T h i s was n o t d o n e , t h r e e r e f e r e e s must be t h e r e f o r e t h e D i s t r i c t Court The r e s p o n d e n t s c o n t e n d t h i s e r r o r was h a r m l e s s e r r o r and t h a t had t h r e e r e f e r e e s been a p p o i n t e d , t h e r e s u l t would have been the same. ÿ his argument is pure speculation. We do not know what three referees might have done because three referees were not appointed under the mandatory language of the statute. The ~istrictCourt, in its findings of fact nos. 17, 18, 19, and 20, finds that the defendants did not object to the appointment of a single referee until post-trial motions. First, it is not a matter of objecting to the appointment of a single referee, it is a matter of consent which the defendants did not give. Second, these findings simply are not supported by the record. The defendant first objected at the July 8, 1986 hearing on plaintiff's motion dated June 13, 1986 which requested an order partitioning the property, the appointment of Hilman Hanson as the single referee, and for an order confirming Hanson's report filed in the proceedings which were set aside for failure to make proper service. The defendant objected again when answering a renewed motion by the plaintiffs dated August 31, 1987 requesting the The appointment of Hilman Hanson as the single referee. defendant also objected at the December 21, 1987 trial when the report by Hanson prepared for the void proceedings was introduced into evidence. Based upon the court's finding that the defendant did not object, the court found that this supposed failure constituted a waiver of the defendant's right to have three referees appointed by the court. This is clearly error. If consent for a lesser number is not given, the statute states the court must appoint three referees. 4) id the District Court err by finding that Judge Henson's order of July 16, 1984 was in full force and effect? It is fundamental to our system of law that the court rendering a decision in any particular case, have jurisdiction over the parties. ~urisdiction is power, that is, the authority to render a judgment. The District Court realized this when it vacated the first proceeding on the grounds that jurisdiction did not exist. It is elementary that when the judgment roll upon its face shows that the court was without jurisdiction to render the particular judgment, its pronouncement is in fact no judgment. It cannot be enforced. No right can be derived from it. All proceedings founded upon & are invalid ineffective for any purpose. (Emphasis added.) Apple v. Edwards (1949), 123 Mont. 135, 140-141, 211 ~ . 2 d 138. The District Court, in its findings recognized the invalidity of the default judgment issued October 4, 1983 and voided two of the resulting orders, but then states that the July 16, 1984, order was in full force and effect. This is not correct. The whole prior proceeding is void, not just parts of it. As a result, the July 16, 1984, order cannot be the basis for the appointment of a single referee. Otherwise the clearly stated requirements of § 70-29-202, MCA, are not given effect. Reversed and remanded for further proceedings in accordance with this opinion. , \_)dmJustice L A 4-. . 2 . 7 We Concur:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
