*1 Cоrporation, STOCKYARDS, CENTRAL MONTANA Plain FRASER ROSABELLE R. B. Respondent, tiff and FRASER, Defendants, et E. C. CLARK al., Defend Appellants. ants No. 9739. 1957. Decided Dec. 1957.
Submitted February Rehearing 17, 1958. Denied (2d) *2 argued Gee, Lewistown, Roundup, Howard Jeffries, C. G. J. orally appellants. for
DeKalb, Dockery Symmes, Lewistown; Weymouth Sym- & mes, Billings, DeKalb, argued and H. oral- Lewistown, Leonard ly respondent.
MR. ADAIR: JUSTICE appeal
This from a a pre- an final entered on liminary hearing interpleader brought in an action Cen- against tral Montana as corporation, defendants, E. Fraser, Fraser, Clark, R. B. C. Rosabelle Clark, Grace Owens and Zada Owens.
This is separately proceeding the fifth numbered to be filed Supreme particu some involving Court since phase outgrowth lar law, of an district court suit Fraser February commenced R. B. wife, against Rosabelle plaintiffs his the defendants E. C. Clark and Fraser *3 Evan Owens. See v. Clark Supreme 9435, 160, Mont. July 8, 1954, Court No. 128 decided & 105; rel. Clark Owens v. District (2d) 273 Pac. State ex January 20, 1955, Court, Supreme 9494, No. 128 decided Court Owens, Fraser & 526, (2d) 1000; v. Clark Su Mont. 278 Pac. 56, 5, 1955, 129 Mont. 282 9522, preme Court No. decided Court, Supreme v. District (2d) ex rel. Fraser 459; Pac. State 1955, 625-627, May Mont. No. decided Court Supreme No. aрpeal, instant Court (2d) 223, and Stockyards Fraser. Montana Owens, E. Clark and Evan owners of year 1952 C. In the then in the State of Hereford cattle purebred herd of large sufficient lands in acquiring of suitable Nebraska, desirous were needs of herd Montana accommodate of the State to Montana. they anxious move which ranch lands suitable to own certain B. claimed R. Fraser and, Owens after extended of Clark and requirements meet Fraser, seller, and E. Clark and B. as C. Evan R. negotiations, separate three instruments buyers, entered into Owens, as writing-, purchase from R. B. Fraser of two fenced Fergus County, enclosed situate in ranches both commonly Home Ranch designated (1) known as: The Ranch, (2) also called the North which Moulton Ranch and The apart ranches were located about fifteen miles and neither which writings pertaining was described in the to the trans- section, township range either numbers. writings
The three pertaining purchase all bear date 30, 1952, (1) “Receipt December Agreement and were: to Sell Purchase,” (2) “Supplement Receipt Agreement Buy” (3) to Sell and “Contract for Deed.” pertinent parts writings appear aforesaid three Fraser v. Clark & Owens, Supreme Appeal Court pages 60-65, at (2d) 459, pages 461- February
On wife, the seller R. B. Fraser and his Rosabelle plaintiffs, as commenced civil suit No. 19805 in the district court for County, Yellowstone Montana, against the purchasers, B. C. Clark Owens, defendants, and Evan as demanding money $28,500 with interest as well larger interest on a sum claimed R. B. Fraser owing to be to him from Clark and Owens under one or more three writings. above mentioned
Upon the commencement of such civil suit No. 19805, R. B. Fraser caused a writ of attachment to issue and be delivered to Fergus County, sheriff Montana, who, on February 20, upon, levied virtually seized and attached all of the per- property sonal E. defendants C. Clark and Fergus County, including 394 head of plus cattle 186 head suckling calves. timely the On motion of Clark and Owens, the Honorable *4 Guy Derry, judge presiding C. in said cause in the district court County, for Yellowstone a change ordered of venue to the district Fergus County court for order, which on appeal court, this was affirmed. See Fraser v. Clark and Owens, Su- preme Appeal 9435, supra, Court No. July decided 8, 1954.
172 August 6, 1954, McConochie,
On the Honorable Stewart duly judge County, elected Fergus of the district for before whom the transferred 19805 was then civil action No. pending, petition and of the defendants E. C. Clark Evan a releasing made an order from the attachment part upon, namely: property Clark and Owens levied dry 2-year head heifers, of horses and cer- old head trucks, tain automobiles, enumerated ranch ma- tractors and chinery Owens, 129 equipment. and Fraser & See v. Clark 56, 459, page 57, (2d) page at K,. September 21,
On Fraser 1954, B. Fraser and Rosabelle disqualified McConochie, Judge whereupon District the Honor- H. in Fall, judge able Victor the First Judicial District Broadwater, and for the and was Counties of Lewis and Clark jurisdiction called in No. 19805. Fol- and assumed said cause lowing a and to dissolve hearing petition on the of Clark Owens property, Judge the attachment the attached on the remainder of refusing dis- denying petition Fall an order and made ap- attachment, solve the from order Clark and Owens which 1947, pealed 93- provided for B..C.M. Sec. court as is 93-8005, 8003, 2, 3, appeal 93-8004, subd. subd. and Sec. Sec. 9522, being No. in this court. appeal while their said No.
On December defendants, this court the undetermined pending Owens, sold and delivered Central E. C. Clark engaged in at Lew- Stockyards, corporation, business Montana agreed head of calves for sum of Montana, 175 istown, buyer, for which $14,390.12 drafts, drawn it on the North- three issued
made Lewistown, Montana, dated December each Bank of western E. Clark, order of C. Grace payable and each Owens, being sight Zada drafts Evan Owens Clark, $3,597.53 No. 1567 for No. 1566 for $7,195.06, $3,597.53. December issuance thereof on upon the
Immediately were seized attached sight drafts three all *5 173 defendants, County Fergus property sheriff the of as the Owens, assuming pursuant Clark and said sheriff to act authority issued in civil of a writ attachment Fraser, No. B. Fraser Rosabelle 19805, at the instance R. and plaintiffs belong must the de- property therein. subject it is 3 Bancroft’s Code fendants before to attachment. 3045, Pleading, page 2287, notes and section 5, opinion, On April pronounced its supreme court judgment appeal adjudging decision No. 9522 and on said personal property be- attachment the cattle and other longing was Clark and Evan Owens defendants E. C. wrongful at- dissolving discharging and forthwith and such merits tachment in toto.
Also, April 5, 1955, duly su- on remittitur issued out of the preme court, in appeal ordered, No. as and on remittitur, copy supreme such true court’s duly opinion, appended, decision and thereto Fergus filed in the office of the district for clerk of the County in cause action No. 19805. Fergus County
On the sheriff of delivered to April 11, Owens, the three drafts total- defendants, Clark and said sheriff had seized and withheld from ing $14,390.12 which 6, 1954. since December Clark payees, Clark immediately the drafts Northwestern presented Owens payment for but the drawee bank dеclined Bank of Lewistown Clark Owens that drafts informed honor the Stockyards, stopped payment Montana drawer, had Central all thereof. day, drawer, following April 12,
theOn filed in the district court complaint interpleader, being County its district Fergus B, therein, 19910, naming R. No. as defendants court cause Clark, Clark, Fraser, Fraser, E. C. Grace Rosabelle Zada Owens. Owens and Clark, E. Clark, C. Grace May 2, defendants
On Owens, by through counsel, Zada their Evan Owens appeared in said to strike cause No. written motion designated portions Stockyards’ complaint of Central Montana in interpleader. May 18, 1955,
On B. Fraser and Rosa- defendants R. belle through counsel, appeared cause 19910 by interposing general demurrer to the corporation’s complaint in interpleader, which demurrer was overruled on June Fra- at which time the defendants *6 granted days ser were within which to answer. July 29, 1955,
On Fraser, by through the defendants attorneys, Wood, Cooke, Moulton, their & filed an served and plaintiff answer to the corporation’s comрlaint interpleader. in 10, 1955, On October hearing was on motion the had the defendants Clark and designated portions Owens to strike plaintiff the corporation’s in complaint interpleader at the conclusion judge, whereof the district the ruling that motion demurrer, strike was in the same category sustained as the motion and plaintiff corporation days allowed the within which to complaint interpleader. serve and file an amended in 28, 1955,
On the Central Montana Stock- October complaint its in yards, interpleader served and filed amended defendants, Owens, promptly to which the Clark and and on 1955, interposed (1) day, a motion: To the same October complaint, (2) strike amended to render such dis- missing plaintiff’s prejudice (3) with for an directing pay the clerk the district court to forthwith order Owens, sum movants, the Clark and the and amount so de- stockyards corporation with posited by the such clerk. praecipe therefor On December on filed de- in fendants, said cause No. Clark the de- defendants, Frаser, R. B. Fraser and Rosabelle fault of the plead for their failure to answer or entered otherwise complaint interpleader in amended within the plaintiff’s time doing. so law for allowed
Following entry defendants, of the above default Fraser, pleading designated Rosabelle filed a R. B. Fraser and Complaint” opening paragraph “Answer to Amended B. whereof reads: now defendants R. Fraser and “Come * * * alone, and not for Rosabelle for themselves severally, remaining defendants, jointly and, * * * through attorneys, file this their answer to the action, complaint amended the time in the above entitled for ~bystipulation filing extended homing same been plamtiff, allege:” counsel this connection (Emphasis supplied.) appeal any in the there appear
Nowhere record does stipulation extending the time for the defendants R. B. Fraser original complaint in inter- and Rosabelle to answer the Fraser original pleader April 12, represented filed as is nor there in the thereto, appear answer of Frasers does stipulation extending record time for said defendants complaint interpleader, Fraser answer the amended filed represented in the answer of the Frasers October merely alleged stipulations thereto. have been un- Should the friendly top-secret arrangements filed between the counsel, they Fraser corporation and or their the defendants binding have force or either the would do no effect defendants, court or the Clark and Owens who had no notice *7 knowledge or thereof. Fraser was filed some the answer defendants above complaint was served and plaintiff’s amended days after to their de- the Frasers have attempt by made
filed. No in the trial duly entered default, so set and such fault aside against to stand of record years ago, continues almost two court 93-3905. 1947, section Frasers. See R.C.M. the filed their answer Owens 1955, Clark and On December corpo- plaintiff interpleader in complaint the amеnded to affirmatively plead- Owens Clark and in answer ration which deposited in to the funds up their claim and set ed interest right therein. any had or Frasers denied that Flachsenhar, the dis- W. R. 1956, Judge February 24, On corporation’s plaintiff mo- granted presiding, judge trict- an- tion to strike and Owens allegations certain of the Clark March by reply filed following ruling plaintiff, swer which 9, 1956, allegations the Clark denied certain of the Owens answer. 12, 1956, stipulation, by counsel by
On March and between into, agreed respective parties day for the it was entered court moneys deposited that one-half in the district defendants, plaintiff corporation may Clark paid be to they may remedy and Owens, prejudice to without whatever pay said three plaintiff have the fialure reason of they presented demand the time drafts on payment. Northwestern Bank of Lewistown for Symmes, Esq., of 12, 1956, Weymouth D. Also on March plaintiff, district court action counsel for filed district court requesting that said his certain affidavit Clark, injunction restraining E. C. permanent issue а the said Clark, prosecuting from Grace Evan Owens and Zada Owens February 27, separate independent action filed certain Clark, Fergus County, E. C. in said district court for Owens, plaintiffs, Clark, Evan Zada Grace Owens and corporation, defend- against Stockyards, Montana Central and withheld ant, deposited court to recover the fund so interest, counsel together with from the Clarks and Owens fees, damages. punitive costs and No. 19910 had of said cause 12, 1956, trial was March
On jury, May and on Flachsenhar, sitting without a Judge before plaintiff, was entered action, awarding dismissing it from the the fund de- paid be out of $319.15 the sum of costs defendants, Clark decreeing that posited any against prosecuting action from “enjoined and restrained any respect further proceeding plaintiff any defendant claim by reason of against deposited” in said district heretofore the funds might have decreeing that “the defend- further by Fraser, and the defendants and Rosabelle Fraser R. B. ants *8 Owens, Zada do Clark, Clark, E. C. Grace Evan Owens and сlaims, demands interplead this cause and settle several themselves.” controversy in suit between and matters in this rendered judgment, so decision, From the above order and Clark, Grace E. C. against them, the defendants entered which Clark, appeal took this Evan Owens and Zada timely proper. is both respondent,
Counsel for the orally motions. argued has filed and court various before this Exceptions. Respondent’s Motion to Bill counsel Strike of interposed appellant’s has from trans a motion to strike cript exceptions urging herein appeal the bill of set forth prepared, required that such bill was not served and filed by law. July 17, 1956, respondent’s appellants’
On counsel and coun- stipulation writing, reading: sel made and entered into Exceptions Bill “Stipulations Settlement for Stipulated re- Hereby “It Is between counsel Bill proposed Exceptions that the annexed spective parties transcript proceedings true, complete is a correct cause, including tеstimony of trial the above entitled thereon, rulings and includes and the Court all witnesses matter, pleadings in said the same be copies of all Judge tried the above entitled allowed who settled and Exceptions. full, Bill of as a true and correct day July, 17th “Dated Symmes Dockery &
“DeKalb, Symmes Weymouth D.
By
Attorneys for Plaintiff and Howard C. Gee
G. J. Jeffries
By Howard C. Gee
Attorneys for Defendants Clark, Clark, Grace
E. C. and Zada Owens”
Owens *9 July On Judge Flachsenhar, judge W. R. who tried action, acting pursuant and to aforesaid stipulation counsel, bill, of settled and proposed allowed the submitted him complete to as a true, excep- correct and bill of tions, it ordered and signed filed as such and thereto affixed his which, certificate so far as here pertinent, reads: “Judge’s Certificate Montana,
State of j-ss.
County of Rosebud. * * # “I, Flachsenhar, Judge presided W. R. who * * * * * * cause; trial and counsel for the respective parties stipulated is a having that the annexed true, transcript pro complete copy and correct of of ceedings cause, occurring cmd at the trial the above entitled of testimony contaimng all on the trial received cause, cause; including pleadings and all in said
“Now, Ordered, be, Therefore It the same Is hereby true, complete same and cor- settled and allowed as a Exceptions the trial proceedings occurring rect Bill of pleadings in said including the above entitled all cause cause, and Ordered as such. filed day July, this 20th
“Dated “W. R.' Flachsenhar Judge Presiding.” District (Emphasis supplied.) re- why for the counsel
Any showing reason cause valid from Stockyards, should be relieved spondent, Central commitment, on which stipulation signed their above first to submitted acted, should have been trial judge relied re- supreme to applying the’ judge before the trial not followed. procedure lief. Such re- to request the trial court did not Respondent’s counsel they not shown have their commitment them of lieve they when they about what they did not know court that Judge induced stipulation, which the written made and executed exceptions, bill of W. R. Flachsenhar allow the settle and they which here seek to have strickеn. unnecessary appeal,
In take deem the view we of this we signer say voluntary ill more than that it becomes a compact attempt nullify it.
Motion moved to Appeal. respondent to Dismiss Next has is from appeal appeal that the ground
dismiss the on the neither a final order. judgment appealable nor an judgment grants adjudges,
The decree and herein orders and injunction. an appeal That an lies from such beyond question. 93-8003, order is subd. See R.C.M. Sec. 93-4701; Hodge, section Thrasher v. 86 Mont. *10 219; Pac. State ex rel. District Public Service Commission v. Court, Meyer 103 (2d) 1032; ex rel. Pac. State Court, (2d) District 102 Mont. 778. judgment
The herein Mon- dismissed the Central tana action; from the it the awarded corporation costs; enjoined its the defendants Clark and from prosecuting any against plaintiff corpo- Owens the ration involving deposited the fund with the clerk of court it ordered the insti- interplead defendants to in the action so by Stockyards. judgment tuted Central Montana The rendered appeal entered is оne from which an under our lies codes particularly Respond- under R.C.M. 93-8003. section appeal ent’s motion to dismiss the on ground the the judgment appealable herein is not denied. appeal ground to the
Respondent also moved dismiss appeal was not served the defendants that the notice of attorneys. their Fraser or Stockyards, brought respondent, It a that assumes interpleader.
action in obtained liability discharge pro- it from and to dismiss it from the (cid:127)to sum ceedings depositing after called drafts respondent Thus did the of the trial court. with clerk complaint for in its corporation all the relief asked initi- obtain As between the defendants Clark and Owens ating the action. wholly and the defendants court was with- the district power authority, interpleader, out or to make this action right, interest in or valid determination of title or deposited by plaintiff corporation. the fund so 93-8005, serving of the provides R.C.M. section for the attorney” party, his appeal notice of “on the аdverse ‘‘ ’’ statute, is a party, meaning an adverse within the party opposition object sought has an who interest may accomplished by appeal, party rights be whose or a adversely affected the reversal or modification judgment. meaning parties”
The Frasers
are not “adverse
within
duly
in the
of the above
Their default was
entered
statute.
complaint
trial court for their
to answer the amended
failure
in interpleader
allowed
law.
default
within the time
Such
attempt
remains of record in
trial court and no
was made
compliance
to vacate or set it aside. There was no
whatever
provisions
93-3905.
of R.C.M.
section
entry
right
participate
“The
of his default
his
terminates
litigation
fraud;
may
in the
not
in the absence of
and he
proper proceeding,
plead
until such default is set-aside in
file
ings,
trial,
subsequent pro
move for a new
or demand notice of
”
1803, pages
ceedings.
Bancroft, Ten-year Supp.
section
Compare
Co.,
Gas
68 Mont.
Marlowe v. Missoulа
372, 376,
“Moreover, in default let one facts, must move apprised of the fact or he Whenever his feet. *11 expedition.” Corp. Middle States Oil v. all reasonable with 770, 235 772. Drilling Co., 73 Mont. Pac. Tanner-Jones ad- a default is entered is not an against “A whom defendant judgment against from a other de- appeal an party to verse Fodera, interests. Fearon affect his v. fendants, which cannot A D, Ann. 1916 312. 169 148 Pac. Cas. [supra] Cal. an part of a defendant is admission suffered on the default default, away with such and as would not do and a reversal any judgment appeal rendered on would not long stands
181 Mac refaulting defendant.” judgment against such affect the 423, 281 Pac. App. 101 Superior Court, Cal. Donald v. 130; Mc 80, 10 Pac. Hunter, 69
673. Randall v. Cal. See also Parks, Kenney 381; v. Keany Black, xvi, Cal. Error, section Jur., Appeal & 40; 3 Am. Cal. 163; pages 465, page 88 A.L.R. parties” “adverse
"We that were not hold the Frasers served, mo- be and the appeal required whom notice of appeal Stockyards dismiss the tion of Central denied. judgment so
Supreme Judgment. decision and Court’s states: part, in in pronounced appeal this court ‘‘ that provides instant case when The contract involved approved the vendors and the abstract of title is furnished that shall returned to the vend- vendees, such abstract thereupon deposit shall forthwith, ors and that vendors Security Bank, escrow for the Savings with said Trust and purpose contract, legally of such a deed that shall be sufficient property agreed a title to the to vest the vendees merchantable sold, together title, to be ‘with instruc- said abstract tions to said bank to deliver the said deed abstract to obligations upon complete performance all the vendees contract; otherwise, that the said the vendees under deed and abstract shall be returned to the vendors for cancel- ’ lation. provides further that 10, supra, of the contract
“Paragraph payments re- the vendees to make upon failure of interest, premiums, or insurance taxes princiрal quired option of the vendors shall immedi- contract, at the whatever, of no force or effect null and void ately become immediately be and become entitled to the shall the vendors property. possession clearly provided remedy of the contract provisions
“Such thereof and under for a breach security vendors for and 93-4301, precluded section provisions of R.C.M. personal prop- and seizure of rightful attachment defendants’ *12 182
erty upon upon in an this suit was the contract which brought. the
“In accord the authorities we hold that above cited payment of upon contract sued was one for the direct not' money payments and that due under such contract provisions secured of the "contract. The order of and dis- denying district court defendants’ motion to dissolve reversed, charge the attachment aside and the attachment is set hereby discharged remanded dissolved and the cause inconsistent proceedings to the district cоurt for further not (Emphasis sup- herewith. Remittitur will issue forthwith.” plied.) 56, 129 at Fraser v. Clark & No. Mont. pages 71, 72, (2d) pages at 468. County appears Fergus promptly
It sheriff that the supreme opinion, of the court’s order and advised immediately definitely vacating discharging, and dissolv- ing attachment, filing, April 7, 1955, and also of the supreme the district court court’s cause remittitur. appears
It further that on Clark and Owens delivery specific made demand sheriff for the them of the three drafts all of which the sheriff then there refused to surrender. lien upon is to secure a object of attachment]
“The [an any judg payment property secure the defendant’s against may in the main suit recover which ment prop auxiliary the main action to secure merely It is him.' judg applied satisfaction erty to be defendant he shall be able to establish providing ment of 1 Shinn on Attachment and (Emphasis supplied.) his claim.” Karnop, Compare 4. Short v. Garnishment, 3, page section page 93-4301, “The provides:’ plaintiff, 1947, section R.C.M. afterward, summons, may or at timе issuing the time attached, security property have defendant may be recovered any judgment that satisfaction (Emphasis supplied.) elsew jurisdiction and in this
It is well settled here sat person’s property of one generally, that the attachment *13 property. the a conversion of isfy against another is a claim 767, 40 A.L.R. 139, 143, 235 Pac. Englehart Sage, they commenced February when Continuously from April 5, subsequent to until original their suit repre- Frasers attachment the when court dissolved this eourt, that the and to sented, to the district court both property was the personal property attached cattle and other and there E. and Evan Owens the C. Clark defendants pronouncement of the any prior time no evidence that at April 5, 1955, that judgment of supreme opinion court’s plaintiff, or claim to the representation the Frasers made Frasers, Stockyards, they, the Central Montana that proceeds from cattle, of the calves or of owners of 6, 1954. made December sale of the сalves on appeal No. 9522 this court of the determination After April 5, 1955, Sterling M. on theron issuing remittitur Fraser, Rosabelle aban- B. Fraser and R. Wood, of counsel that sold representations cavíes theory and doned his property of the Clarks were the therefor sight drafts issued April bearing date by letter Owens and and the Montana Stock- of Central Woods, president attorney wrote heretofore, and advised “You have been this effect: yards, to Mrs. Fraser Mr. and you again, that advising I am now so * * * proceeds sale gross entitled to and are own recently and Owens of one-half by Messrs. Clark you made proceeds These do steer calf increase. 1954 heifer and of their property but are the Owens Messrs. Clark and belong not payment Unless, therefore, you stop Mrs. Fraser. Mr. and payment and make and Owens to Messrs Clark proceeds these your company be held Mrs. will Mr. and thereof to same; liable for the payment and demand for such to the Fras- * * ers is now made. (Emphasis supplied.) It was not until 11, 1955, that Fergus the sheriff of County sight unhanded his hold on the three drafts and de- livered them the defendants, Clark and who imme- diately presented same to Northwestern Bank of Lewistown for payment, but, avail, all to no for the bank declined to honor the drafts and drawer, informed Clark and Owens Central stopped payment had all thereof. following day, April 12, 1955,
On the drawer, Montana Stockyards, through its attorneys, filed the district for Fergus County complaint its in inter- pleader, being 19910, naming cause No. as defendants R. B. Fraser, Rosabelle Fraser E. Clark, C. Clark, Grace complaint Owens Zada Owens. The seperate- sets forth nine ly paragraphs. V Paragraphs VIII, numbered inclusive, prayer for relief are as follows:
“V. That said drafts referred to above were attached *14 by Fergus County, the of pursuant sheriff Montana to a Writ duly regularly of Attachment issued this court and re- possession in the Fergus mained of the Sheriff of County, Mon- until April 11, pursuant tana on or about 1955. When to an Supreme Order Montana, Court of the State of said Writ of Attachment was vacated and set aside and on said date the duly Sheriff delivеred said E. drafts to C. and Grace Clark and Evan and Zada Owens. sight payment said drafts were made in full
“VI. That of standing in the name of payees the the certain livestock moneys of said livestock entitled to the owner or owners sight drafts. specified in said That on or about Defendants R. B.
“VII. through attorneys, Wood, and Rosabelle Fraser Billings, Montana, Moulton of wrote to the Plain- Cooke Plaintiff that the R. B. informing the Fraser and Rosa- tiff of one-half the of the livestock for belle Fraser were owner? sight drafts were issued above described and that said which the B. proceeds R. Fraser the and Rosabelle Fraser were entitled to represented by if the sight the drafts and that above-described Defendants, sight paid Plaintiff caused these the drafts to be E. C. and Grace that the said Clark and and Zada R. B. Fraser and Plaintiff Rosabelle Fraser would hold the responsible liable therefor and that this Plaintiff would be held payment. the That safely pay
“VIII. the Plaintiff the same to cannot either of the claimants of said named as Defendants in funds adjudication this action rights without Defendants between obliged themselves and that this Plaintiff has been employ attorneys purpose Defendants, for that and that E. C. and pre- Grace Clark and Evan Zada Owens have payment sented said drafts for Bank to the Northwestern Lewistown, Montana. respectfully prays:
“Wherefore “1. That Plaintiff,- Stockyards, Central be discharged liability from conflicting to all or claims that an Order of be made that the Substitution respective claims Defendants determined. be adjudged “2. That the Plaintiff be absolved and from free liability together all in this costs and case with reasonable attor- neys separate fees and for such other and releases as to the may just premise. Court seem payment
“3. of said drafts the claimant That this Court, thereto Clerk of that the claimants entitled up three drafts referred to above delivered Clerk him.” this Court and cancelled complaint IX its Mon- paragraph In alleged that, filing” with the tana “simultaneous *15 complaint deposited of it the its has clerk of the district equal to the total sum the three drafts court an amount drafts, the payment” “in full but record shows that it 13, 1955, day April being following filing until the was not the complaint, Judge McConochie, of its that District Stewart on parte application ex Montana Stock- deposit with
yards, made order that and filed an be held $14,390.12 “the clerk said court total sum of * * * the n rights conflicting until claimant defendants duly adjudicated.” already Supreme Montana had Court of the State of adjudicated rights of the claimants determined and hand, R. B. Fraser on the one and those Fraser and Rosabelle other, when, April of the claimants Owens on the Clark and complaint filing plaintiff’s one week before pronounced and interpleader, opinion, its decision judgment adjudged it that the appeal on said wherein and court, denying order of the the motion of Clark district their cattle discharge Owens to dissolve the attachment on personal property, and other is “set aside and reversed” * * * discharged.” is “thе attachment dissolved and is To a plain unqualified This was and reversal. reverse contrary it judgment or order means to overthrow decision, judgment it is reversed make Amid.When a or order Reynolds, 18 Cal. as if never rendered or made. Raun v. 276, 275, page at 290. supreme mandate of pursuant court’s
Where district filed and judgment was entered its No. -19805 such Fergus County in cause court for judgment of Su continued to be the judgment remained and did questions which preme Court those in the court and hearing district actually arise on the rights as the presented, there as Avell been which could have of the Frasers litigant, rights e. the and claims i. parties property in and to the attached the Clarks adjudged and became and are fully considered; determined Mining Co., Placer Kimpton v. Jubilee judicata. res page at 109, page at Holter, page 1 Mont. Mining Co. v. In Columbia speaking of a remittitur and mandate Court, Supreme issued, said: properly regularly
187 supervisory aof imperative “The was the command mandate to a subordinatе court. 1 ‘ disobey. powerless to The court below was admitted, if error, and, been
“Disobedience would have supreme supervisory court authority tribunal as a of this would be annihilated.” 639, pages 2 5th Ed. at Judgments,
In Freeman on section appellate 1345, 1346, judgments said: is “The They not any are as those of other court. courts conclusive as only facts, law, that the law as establish but also so settle subsequent upon, any appeal applied must to all the decided be judicata in other cases as stages cause, they res are adjudicated.” Estate, 60 every matter In re Smith’s See Jones, 550, 276, 696, Mont. 199 Pac. Brennan 101 Mont. v. (2d) 697, 55 700. Pac.
(cid:127) 174, 8, Pac. Border, 4, page 87 Mont. at 285 In Anderson v. “The court, said: Callaway, speaking for this Chief Justice is an brief devoted to greater portion appellant’s exhaustive is opinion former case attempt demonstrate that our which erroneous, points short is that as to all but the answer in, upon, in former directly passed and were involved case, opin aрpeal, and in this whether which involved binding upon case, law the right wrong, ion is or it is the Apple court, binding upon is us.” See also: v. the trial (2d) 138; Hardy, v. Edwards, 135, 139, 123 211 Pac. Ivins Mont. 121 (2d) 204; Emigh, Lake 513, 516, 123 217 Pac. v. Mont. Ry. 550; Pac. (2d) Carlson v. Northern Mont. Ry. 914; Neary Northern Pac. Co., v. Pac, 226, 235; Heinze, Finlen 32 Mont. Co., 41 Mont. 366, 80 Pac. interpleader suit in authority bringing As of its for the upon relies B.C.M. defendant, against “A whom 93-2825, provides: which section contract, specific personal or pending upon an a answer, upon affidavit may, any time before property, him, against makes and with- person party not a to the action a contract, or him, upon out such collusion with demand upon person and the adverse property, for such notice to such party, person such apply to the court for an order to substitute party, place, liability in his him from to either discharge contract, depositiong on his court the amount claimed on as the delivering value, person such property, or its discretion, make the may direct; may, in its and the court may made сonflicting order. are or And whenever claims person personal property, per- or the relating for or *17 person obligation, any portion thereof, formance of such an or may bring conflicting compel to against an action claimants interplead litigate among them them- to several claims made, the action may selves. The order substitution be interpleader may maintained, plain- or applicant be and the conflicting discharged liability tiff be from to all or claimants, although their or have not common titles claims origin, identical, independent or are not but adverse to and of one another.” (93-2825) Code, above-quoted section construing the
In Roy Melchert, 67 Mont. Security Bank of in State two 340, 342, this said: “This section covers ‘(1) respecting B. fund If A. sues distinct classes of cases: may as defendant claims, B. have C. substituted which C. also liability. the order of substitu from When and himself relieved according of com made, proceeds to course tion is to a (2) If A. and C. assert hоstile claims practice. mon-law B., action, an hands of B. but neither commences fund in the in inter- liability, may a suit himself from commence to relieve defendants, deposit A. the fund pleader naming and C. as interest in the discharged. Because B. has no court, and be rights, his infringed A. nor has fund, and because neither C. both, against of action at law either he state a cause cannot Savings & may equity.’ Missoula Trust invoke the aid of but 355, 941.” Son, & 50 Mont. Pac. Bank v. Inman attempted brought interpleader suit in be The instant governing applicable to and provisions of the statute under the second class of cases above-mentioned. This involves two separate contests and determinations. The first determination to be made plaintiff’s is as to right bring the suit and to compel the defendants interplead. If first determination be made in favor of the instituting the suit then the presented second matter is litigation the contest and between the contending property claimants for the fund or involved. 6 Bancroft’s Code Practice Rеmedies, Interpleader, section 4878, page 6421.
In State ex rel. State Bank of Court, Townsend v. District 551, 558, 559, (2d) 396, 399, this court said: “We believe that the original demurrers as filed peti- tion in interpleader good, original in that petition support the affidavit in only thereof stated that Burgess C. N. laid claim question. to the funds in There must something be further than this, mere assertion of a claim another, alleging something without of the nature of the claim to show that is it, there some basis though even may the claimant ultimately not succeed establishing right funds, his to the but a Furthermore, conclusion. if the nature of claim character established, may thereof are not possible party requesting interpleader has an independ- incurred liability ent claimant, and is position not *18 of a mere [Citing stakeholder. authorities.]
[*] # [*] # # [*] “In [passing upon sufficiency petition a for an order of] interpleader, where the court is asked to petitioner allow the pay money into discharged court and be from further liability, important it is most position to determine the petitioner as a petition stakeholder before the granted. is The right granted under dealing the statutes interpleader with the protect is not to from against a liability, double but assumes give protection only against regard double vexation in to one liability. many
“We have been cited to dealing cases liability of banks on cashiers’ cheeks, and on certified checks. gen- The
190 certified
eral broad is checks and statement made that cashiers’ It is further subject are to stop payment checks not orders. liability is stated that check a bank on cashier’s stop check, power same as on that the a certified same ordinary All payment not exist as in the case of checks. does law, are statements, general of these cor- statements of rect, application principles in the cases cited of such * * * undoubtedly In the bona fide correct. hands of holder, duty, pay, and the the bank but one is to has even hold that point, eases on this those which unanimous may payment a bank refuse under сertain circumstances.” petition interpleader, rule is that must or affidavit conflicting disclose some reasonable basis of claims Corp., Realty Sup. fund or property. Goodstein v. Contower (2d) 350; Flanagan O’Dwyer, (2d) 53 N.Y.S. 86 N.Y.S. Sup., v. 559; App., 130 Hopkins, Hancock Oil Co. of California v. Cal. (2d) 497, (2d) 24 490, (2d) 463; affirmed Cal. Society, App. Equitable Rosen v. Life 263 Div. Assurance N.Y. (2d) 910, grounds 33 N.Y.S. on other 289 reversed Columbus, 899; Knights 45 206 (2d) N.E. McNamara v. App. 235; Big Div. 201 v. London Assurance N.Y.S. eleisen, Eq. 564, (2d) 494, 496; 135 Varian v. Ber N.J. 39 A. rien, Barabee, 42 A. 238 Ala. Eq. 1, 875; 10 Harden v. N.J. 519, 192 109 W. Va. 268; Caldwell, So. United Fuel Co. v. Gas 323; 107; Matlack v. 280 Mo. Kline, S.E. S.W. (2d) 611; Meredith, App. Meredith 148 S.W. Mo. Interpleader, 16, page 431; C. J. section 48 C.J.S. Inter- pleader section 14. complaint 1955, the its of October
In amended setting the claim the Stockyards, in forth herein, part: alleged, defendants * * * upon by plaintiff called defendant R. “That tipon that he was the plaintiff Fraser made demand B. who paid and if the said livestock certain owner of Clark, therein, Clark, E. C. Grace defendants drafts to the bring against plaintiff suit would Zada he Owens and *19 for the value of the interest in the for which hе had livestock paid plaintiff the drafts that if issued, and threatened it thereto, said drafts, peril. it so addition would do at its own In * * plaintiff Wood, Moulton, received letter from Cooke & stating in they represented unmistakable terms that R. B. demanding withholding payment said of of drafts, plaintiff or the would held liable defendant Fraser damages (Emphasis all supplied.) he sustained.” complaint amended also alleged about Decem- ber plaintiff stockyards corporation duly regu- larly separate sight made its three drafts on the Northwestern Bank payable of Lewistown “E. to the order of C. and Grace Clark and Evan Zada Owens” and it further alleged:
“VI. The said sight drafts full payment were made in of standing certain payees livestock in the- name of owner or moneys owners said livestock are entitled * * * specified in said drafts.
“VIII. plaintiff That no interest has this contro- versy, except to relieve itself liability; taking and is not sides in controversy. Plaintiff has not colluded with either contenders, of said nor interpleader has filed this to aid either side controversy. said Clark, Clark,
“IX. E. That defendants C. Grace Evan Owens have, prior and Zada the commencement of this action, through attorneys made similar threats of an action against for damages plaintiff payment if it withholds drafts.
“X. safely pay That the cannot the same to either of the claimants of said funds named as defendants in this adjudication rights action without be- defendants * * (Emphasis tween supplied.) themselves Under the decision of State ex rel. State Bank of Townsend Court, supra,
v. District cited, plain authorities complaint tiff’s amended fails to set forth the conflicting claims sufficiently the defendants to show that there is reason able or plead- well founded basis therefor. Plaintiff’s amended *20 defendants,
ing fails to set forth the claim or demand of the attorneys merely that than to state Clark and other damages.” See Collishaw “made similar threats of an action Refining Co., v & 121 Mont. Smelting . American (2d) That the has been con- Central Montana be, siderably more should active than a disinterested stakeholder successfully presented, the that it is evidenced motion allegations material prosecuted, for an order to strike certain Owens, to defendants, from the answer made Clark and plaintiff’s complaint. amended strike, the trial court sus- Plaintiff’s said motion which represented tained, allegations that of the Clark certain of redundant, incompetent, irrelevant, and Owens answer were immaterial conclusions which are insufficient con- and/or plaintiff’s complaint. stitute a defense to amended plaintiff’s Among allegations, so stricken on ordered motion, following: are aforesaid prop- the exclusive bought of them were “That cattle so ; sale that such erty Defendants of these [Clark Owens] obligations accruing that independent transaction,- was an therefor, express, primary and direct thereby are pay and to be, that Company, Plaintiff same cannot obligations of the action; indirectly, all, by this directly or at affected or not, Fraser nor either of were were “That the Defendants any manner them, transaction or involved parties to said not, did nor either of therein; said Defendants did that any any have claim to them, or own interest or own ever cattle, any that said of these Defendants’ cattle, or any interest in or had said drafts at no time owned Defendants any part thereof.” Court, Bank v. District In ex rel. of Townsend State State (2d) page 399, at page 559, 94 Mont. supra, raised, main issue question main court said.- “The Townsend, its Bank of if all state involved, is whether State true, in the position of a petition as amended ments in the question to whether stakeholder, and this involves the liability independent Bank of Townsend incurred an State has speci- interpleaded, and more parties asked to be made on fically stop may be payment whether or not a order a cashier’s check when once issued and delivered.” strick above-quoted, allegations, material so and also other plain motion of the answer, en from the Clark аnd Owens stockyards company, properly tiff forth Clark and set pave way Owens in their and render admissible answer to Stockyards tending evidence that to show the Central in and, also, was not a disinterested stakeholder it had independent liability defendants, curred an Clark allegations Owens. The from ordered stricken the Clark and *21 go Owens answer preliminary primary to the heart of the required matter very to be initial established at the outset of the hearing, is, recognized by for the law this stated Security court in Roy Melchert, supra, State Bank v. of page page 343, quoting, at 216 Pac. at when “ approval, perfect from 15 R.C.L. viz.: ‘An attitude of
disinterestedness, excluding interest, even an indirect on the part plaintiff indispensable of the is the maintenance of the ‘‘ ’’ bill, position impartiality, and his must be one of continuous thing save that possession right in his awarded party’.” Bank
Again in State ex rel. State
of Townsend v. District
page 561,
(2d)
page 400,
Court, supra, 94 Mont. at
respondents
upon the
this court said: “The
over
[claimants]
by
are
ruling of their demurrer
entitled to contest
answer
may
allegations
the truth
petition, and
contest
of the various
right
petition,
of the
and have decided
its merits the
interpleader.”
Bank of Townsend to its order
State
Maulsby
Scarborough,
(2d) 897,
179 Md.
16 A.
In
by plaintiff
interpleader
to the answer of
where a demurrer
sustained, a similar
one of the defendant claimants was
circum-
Maryland
presented,
Appeals
Court of
stance to that here
interpleader
stated: “Included
the decree of
an order
sustaining
plaintiff
appellant’s
a demurrer
to the
answer
nor
interpleader.
to the bill of
We have not been referred to
any
a
authority
precedent
do we find
for a demurrer
plaintiff
pleadings
defendants in inter-
pleader.
position
impartiality.
must
He
maintain a
of strict
defendants,
long as he
not
himself to
So
had
bound
one
respective
plaintiff
is a matter
indifference to the
what the
is that
stake-
position
contentions of the defendants are. ‘His
holder; he has
interest in the
and cannot be affected
no
issue
825;
Eq.
Stef-
the final decree in
cause.’ Miller’s
Prac.
fey,
Stationery
161 Md.
Co.,
Inc. v. American Bank
* * *
interpleader
plicable By motion to strike presented. to the situation here its allegations from con- the Clark and Owens’ answer such vital stockyards cerning claim of Clark poise and bal- corporation failed to maintain the delicate has disinterested stakeholder. ance merits court was discharge on the The dissolution arising in the attach- adjudication questions of all and is final litigant put the same parties and the proceedings ment Attachment had issued. C.J.S. if attachment position as no *22 82. page note section propеrty is the lien on the an attachment dissolved
“Where vacated, right hold the and the thereunder seized * * # Where an attachment has property ceases. attached should return holding property dissolved, the officer been a, Attachment section Subd. 7 C.J.S. promptly.” the same 4, page 636. 96, 97, b, note *23 judgment and and nullify Supreme opinion but to Court’s tbe property, with- and Owens their to further withhold from Clark repugnant authority therefor, clearly was and is out lawful not be judgment and to with this court’s and inconsistent Supreme in the quite tolerated. It is clear that face Attorney April 5, 1955, above letter of Court’s decision of judgment promoted ignored decision and Woods this court’s judgment and tolerated, nullify the which, if would lawsuit supreme super- authority of this tribunal as a annihilate Holter, supra, and visory Mining v. court. See Columbia Co. Border, supra. Anderson knowledge notice and with Montana
Central April 12, judgment, on opinion and this court’s County original Fergus its com district court of filed withhold from attempt to further an plaint interpleader seeking order to them an moneys due and Owens Clark sight drafts with the the three money in amount of deposit County Fergus be held “to court of the district clerk * * * duly conflicting rights defendants until Stockyards ig Montana Thus, the Central adjudicated.” did the fact that mandate and also judgment and court’s nore this undetermined, court, in said district pending then there was obligations and rights, wherein cause of Fraser, plaintiffs, and Rosabelle R. B. Fraser and claims of defendants, E. C. Clark and those of adjudicated. tried and presented, in issue and to and are repugnant proceedings are acts, conduct and foregoing opinion judgment with this court’s and inconsistent tolerated and void. not to be therefore Judge Stewart McConochie District made The order Stockyards to allowing April 13, $14,390.12 total sum of of court “the said clerk deposit with be held by the clerk [*] [*] '* until the rights of the conflict- adjudicated” repugnant likewise duly is ing defendants are judgment April opinion this court’s and inconsistent pronounced heretofore wrong, the Right 5, must both this binding this court stand and is Accordingly order the district court. the district court’s Border, supra April for in void Anderson v. page at this court page 285 176], *24 [87 that law opinion right wrong, held “whether the is is the or binding case, court, and binding upon trial is upon authority us.” For and same like reasons restraining order March by Judge issued Flachsenhar on 12, injunction and and filed March and the ordered 1956, 14, 1956, the judgment by Judge May 9, on rendered Flachsenhar 1956, May entered on repugnant and inconsistent 1956, 11, with opinion judgment this court’s and therefore void. April
The order made and filed deposit 1955, 13, total sum of the drafts is set aside and vacated. restraining order March issued filed March 12, 14, 1956, injunction May and the May 9, order of and filed are set dis- aside and vacated. The 11, 1956, trict May May court rendered on and filed on is and annulled. The in interpelader reversed action com- menced prosecuted by and thereafter re- spondent, Stockyards, corporation, is dis- the money missed and funds deposit the clerk district court such is ordered forth- delivered appellants, with to the E. C. Clark Owens, order. It further appellants, Clark, ordered E. C. Clark, Grace Evan Owens and Zada have recover their costs, both in the Supreme Court, district and in the respondent from the corpora- Central Montana tion. It is ordered. so HARRISON, MR.
MR. JUSTICE JUSTICES CHIEF ANGSTMAN, concur. BOTTOMLY and
MR. CASTLES: JUSTICE result, not all that is said herein.
I in the but concur notes Subd. judg- this Proceedings. April 5, 1955, court’s On Inconsistent dissolved, discharged fully and cancelled then and there ment the attachment remanded to the district and orderer “the cause proceedings opin- not inconsistent” with onr further ion Owens, and in Fraser v. 129 Mont. Clark and (2d) 459, Notwithstanding above-express against fur- prohibition proceedings ther opinion judg- inconsistent court’s and ment, pronounced April 5, 1955, and from and after effective following wholly proceedings, repugnant inconsist- and opinion judgment, ent with this wilfully court’s had and done knowledge opinion judg- with notice and ment pronounced, so viz.: 8, 1955, County On Fergus sheriff of refused to surrender therefor, to Clark and on their demand sight drafts, three payable all defendants, Clark and Owens, and then in possession him hеld sheriff’s authority. without lawful Next, Stockyards stopped the Central payment sight drafts, the three payees, made issued to the Clark and Owens, as owners of the calves sold and delivered them to stockyards corporation. Sterling Wood, M. for R. B. Thereafter counsel Fraser and February 1954, inwho commenced district Rosabelle court action No. wherein were issued the attachments here represented, it wherein both in the district involved and Supreme Court, property upon, that court and in the levied defendants, that E. and attached was C. seized Clark Owens, suddenly position theory abandoned such wholly theory proceeds adopted inconsistent that calves, made Clark and on December the sale of the Owens belong not to Clark and Owens did not and do but and, by Mr. bearing and Mrs. Fraser letter property .1955, Attorney April 11, Wood threatened the stock- date of stopped payment yards corporation pro- of such unless payment and Owens and unless it made thereof ceeds to Clark stockyards Frasers, it, corporation, to his clients the would attempt only same. This not held liable for to circumvent