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Alpine Buffalo12/28/2001
ich the appeal is taken and "any matter embraced therein," Andersen contends the deficiency judgment is not "embraced within" the assignment order. She also relies on cases from other jurisdictions for the principle that a notice of appeal does not deprive the trial court of jurisdiction over matters from which appeal has not been taken.
The cases on which Andersen relies are readily distinguishable from the present case. In Garnett v. Oliver (Ky. 1931), 45 S.W.2d 815, 817, the court held that, under Kentucky statutes, a plaintiff in a suit dismissed by the trial court could obtain an order of prejudgment attachment from that court while the case was pending in the appellate court. The prejudgment attachment was not embraced within the appeal of the dismissal, pursuant to statute. In Cragin v. Lobbey (Mo. Ct. App. 1976), 537 S.W.2d 193, 195-96, the court held that, where two separate causes of action were filed jointly, appeal of one separable judgment did not affect the other, jurisdiction of which remained in the trial court. In other words, one separable judgment was not embraced within the other. While a similar result might be obtained in Montana where, for example, a trial court properly certifies a judgment as final for purposes of appeal under Rule 54(b), M.R.Civ.P., retaining jurisdiction of the underlying action, that scenario is not before us in the present case.
Finally, Andersen quotes from State ex rel. Freeman Printing Co. v. Luebke (Wis. 1967), 152 N.W.2d 861, 864, in which the court stated " f the appeal is from an order, only the subject matter of that order, i.e., only such portions of the proceedings as are germane to the order, is transferred by the appeal." She does not present Freeman in its entirety, however. The Freeman court went on to note that identifying the subject matter of an appeal and what constitutes interference with that subject matter is not always free from doubt. Under the circumstances there presented, the court held that the trial court did not have authority to grant a motion for a non-suit while appeal from an order overruling a demurrer to the amended complaint was pending, because the dismissal was a direct interference with the subject matter of the appeal. Freeman, 152 N.W.2d at 865. Freeman's "interference" approach and application to the circumstances of that case do not support Andersen's position here.
In the present case, the assignment order from which Andersen's appeal was taken and her Rule 60(b) motion to set aside the deficiency judgment are inextricably intertwined. The Rule 60(b) motion challenges the validity of the very deficiency judgment on which the appealed order of assignment is based and which that order seeks to enforce. Consequently, we conclude the deficiency judgment is a matter embraced within the assignment order seeking to enforce that judgment. We hold, therefore, that the District Court did not err in concluding that Andersen's appeal from the assignment order divested it of jurisdiction to address her Rule 60(b), M.R.Civ.P., motion.
Affirmed.
KARLA M. GRAY
We concur:
JAMES C. NELSON
JIM REGNIER
W. WILLIAM LEAPHART
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. I do not agree that district courts have unrestricted authority to enforce their judgments. Nor do I agree that district courts are divested of authority to decide timely filed post-judgment motions simply because a notice of appeal was filed.
We have in the past used broad language in defining a district court's authority to enforce its judgments. However, in the case of judgment
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