Sadler v. Hart , 220 Mont. 355 ( 1986 )

No. 85-460
IN THE SUPREME COURT OF THE STATE OF MONTANA
1386
JAMES H. SADLER, et ux,
Pla.intiffs and Appellants,
-vs-
DALE P. HART, et ux, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Zudicial District,
In and for the County of Missoula,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Samuel Coon, Missoula, Montana
For Respondent:
Terry A. Wallace, Fissoula, Montana
Submitted on Briefs: Dec. 18, 1985
Decided: March 13, 1986
Filed:
k Clerk *,u 8
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
James Sadler appeals the order and writ of assistance
issued by the District Court of the Fourth Judicial District
granting immediate possession of the appellant Sadler's home
to the respondents Dale and Gail Hart.
We affirm the order and writ of the District Court. Two
issues are presented for our consideration:
1. Was the order and writ of assistance proper?
2. Did the order and writ of assistance comport with
due process?
To end numerous lawsuits between the appellants and
respondents, both parties filed with the District Court a
settlement agreement which the court adopted as a consent
decree on December 31, 1984. The consent decree enjoined
both parties from filing any cause of action against each
other which arose before the date of the decree.
The decree settled all obligations between the parties,
save one. The matter remaining involved the sheriff's deed
held by Hart's to Sadler's home. The consent decree allowed
Sadlers to extinguish the Hart's interest in the home by
payment of twenty eight thousand doll-ars, payable in three
installments, time being of the essence. The District Court,
by terms of the consent decree, would act as escrow agent for
the parties. As escrow agent, the court held documents to be
released in the event of payment or nonpayment.
On July 3, 1985 the respondents pursuant to the consent
decree requested the court to take appropriate action because
the second installment due had not been paid. Their request
was accompanied by a certification of the clerk of court that
the payment had not been made.
In accordance with the provisions of the consent decree
the District Court released to the Harts quit claim deeds to
the property, a confirmation of the previous execution sale,
and a writ of assistance, which had been previously
consented to by the appellants at the time the consent decree
was adopted. The consent decree expressly stated that the
court, as escrow agent, could "act without notice to the
other parties." On July 18, 1985 the sheriff of Missoula
County served the Sadlers with the order and obtained
possession of the home for the Harts.
The appellants did not appeal the consent decree, which
is a final judgment and therefore an appealable order. In
the absence of such an appeal, challenges to the decree
itself cannot be considered. 1JIurphy v. Patterson (1901), 24
Mont. 591, 63 P. 380, 381. Therefore, this Court considers
first whether the order and writ issued by the District Court
corresponded to the terms of the consent decree. The order
and writ of assistance followed the terms of the decree
exactly and cannot be challenged on that basis.
Secondly, appellants argue they were denied due process
by not receiving prior notice of the order and writ of
assistance and by being deprived of an opportunity for a
hearing. This argument fails because the express terns of
the consent decree, signed by the appellants, indicates they
knowingly and voluntarily waived notice of the court's
actions pursuant to the default provisions of the decree.
Pacific R.V. v. Ketchum (18791, 101 U.S. 289, 295.
Appellants contend that this Court should consider their
argument that the terms of the consent decree were later
modified by the parties. We cannot consider issues or
evidence not raised in the District Court. Kearns v.
McIntyre Const. Co. (1974), 173 Mont. 239, 567 P.2d 433.
The District Court is affirmed.
We Concur:
/"
Chief Justice