Campanella v. Bouma ( 1974 )

No. 12514
I N THE SUPREME COURT O THE STATE O MONTANA
F F
GEORGE CAMPANELLA, a s R e c e i v e r f o r t h e u s e
and b e n e f i t o f LARRY C. IVERSON, I N C . , and
i t s shareholders,
P l a i n t i f f and Respondent,
-vs -
RALPH BOUMA, MRS. RALPH BOUMA, h i s w i f e ; e t a l . ,
Defendants, Counter a n d / o r
Cross - P l a i n t i f f s and A p p e l l a n t s ,
-vs -
FARMERS STATE BANK O CONRAD, EARL M. BERTHELSON, and
F
UNITED BANK O PUEBLO ( f o r m e r l y ARKANSAS VALLEY BANK),
F
Counter a n d / o r Cross Defendants
and Respondents,
-vs -
RAY LIGHTNER and MRS. RAY LIGHTNER, h i s w i f e ,
Cross-Defendants and Respondents,
-vs -
CARL 0. IVERSON and LARRY C. IVERSON,
Petitioners for Intervention,
Counter a n d / o r C r o s s - P l a i n t i f f s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t ,
Honorable Paul G. Hatf i e l d , Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t s :
Ralph Bouma (Pro Se) appeared, Ledger, Montana
K e i l and Gustafson, Conrad, Montana
Dale L. K e i l appeared and Gale R. Gustafson a r g u e d ,
Conrad, Montana
For Respondents:
D z i v i , Conklin, Johnson and Nybo, Great F a l l s , Montana
James W. Johnson argued, Great F a l l s , Montana
Swanberg, Koby, Swanberg and M a t t e u c c i , Great F a l l s ,
Montana
Raymond F. Koby a r g u e d , G r e a t F a l l s , Montana
Church, H a r r i s , Johnson and Williams, Great F a l l s , Montana
Cresap S. McCracken argued, Great F a l l s , Montana
James, C r o t t y , Fopp & Paul, Great F a l l s , Montana
G , Robert C r o t t y argued, Great F a l l s , Montana
a=- - Submitted: March 19. 1974
Filed
Mr. J u s t i c e Wesley Castles delivered the Opinion of t h e Court.
This is an attempted appeal by defendants Bouma from an order dated
March 23, 1972, by the Honorable Paul G . Hatfield made during the pleading
stages, such order designed t o s e t t l e the pleadings so t h a t issues raised
by the complaint might be pursued. This unusual attempted appeal a t t h i s
stage makes our review and t h i s opinion somewhat unorthodox. However, in
an e f f o r t to aid subsequent proceedings, we will s e t f o r t h more materials
than necessary t o decide the appeal.
In December, 1971, the respondent receiver commenced t h i s action
against the appellants Bouma f o r the rescission of t h e Bouma contract t o
purchase 4,520 acres of farmland from the corporation. The history of other
l i t i g a t i o n involving the corporation dates back t o 1964. The l a t e s t case be-
f o r e t h i s Court i n the s e r i e s of cases in Cause No. 12387, Farmers S t a t e Bank
.
of Conrad v . Iverson, e t a1 and Bouma, reported a t Mont. , 509 P.2d
839, 30 St.Rep. 501. In t h a t opinion a review of the long l i t i g a t i o n was made
and w will not repeat i t here.
e B u t hereinafter we will r e f e r t o t h a t opinion.
The combined order i n Pondera County Cause No. 8 9 9 delineates and describes
the complex s i t u a t i o n and we quote the e n t i r e order a s follows:
"A review of the court f i l e in the above-entitled action reveals
t h a t the P l a i n t i f f f i l e d h i s complaint herein on or about December
10, 1971. Defendant Ralph Bouma f i l e d his answer and supplemental
answer on September 22, 1972, and November 28, 1972, respectively,
s e t t i n g f o r t h twenty-eight separate defenses. Said Defendant f i l e d
h i s counterclaim, consisting of nine separate counts, on September
22, 1972. On December 19, 1972, P l a i n t i f f f i l e d a l t e r n a t i v e mo-
tions under Rule 12, M.R.C.P. t o s t r i k e Counts One, TWO, Three
and Nine of said Defendant's counterclaim, or a l t e r n a t i v e l y t o
dismiss said counts f o r t h e i r f a i l u r e t o s t a t e a claim f o r r e l i e f .
Additionally said motion sought the dismissal of a l l of the re-
maining counts upon the same ground o r , a l t e r n a t i v e l y , seeking an
order requiring a more d e f i n i t e statement of said remaining counts.
These a l t e r n a t i v e motions were supported by P l a i n t i f f by a memoran-
dum f i l e d January 5, 1973, and opposed by Defendant Ralph Bouma on
February 7 , 1973, by a motion t o quash said motions, along with
other pending motions. P l a i n t i f f f i l e d a reply memorandum on
February 22, 1973, and a hearing upon said motions was held, by
order of the Court, on March 1 , 1973. The Court having considered
the aforesaid motions, the memoranda i n support thereof, the argu-
ments by Ralph Bouma, appearing pro s e , by James W. Johnson, appear-
ing f o r the P l a i n t i f f , and by Gale Gustafson appearing f o r Defend-
a n t , Mrs. Ralph Bouma (over the objection of P l a i n t i f f ' s counsel
t h a t Mrs. Ralph Bouma had no i n t e r e s t in motions going t o the merits
of her husband's s o l e counterclaim), and the court being cognizant
of the condition and circumstances of the record i n t h i s cause t o
date and being f u l l y informed in the premises, IT IS HEREBY ORDERED
A FOLLOWS:
S
"(1 ) The Motion t o Quash of Defendants Ralph Bouma and Mrs. Ralph
Bouma i s a motion unheard of in the law of t h i s s t a t e and on& not
sanctioned by the Montana Rules of Civi 1 Procedure. Such a motion
was contrary t o the former practice i n this s t a t e (see S t a t e ex r e l .
McVay v . D i s t r i c t Court, 126 Mont. 382, 251 P.2d 840) and i s super-
fluous and unauthorized i n t h e present practice. Said motion by
said Defendants, f i l e d herein on February 7 , 1973, i s hereby s t r i c k e n .
The memorandum f i l e d i n support of said Motion t o Quash has been
taken by the Court a s a memorandum i n opposition t o the a l t e r n a t i v e
motions of the P l a i n t i f f and has been considered by the court.
" ( 2 ) Regarding Counts One, Two, Three and Nine of the counter-
claim of Defendant Ralph Bouma, both a l t e r n a t i v e motions of Plain-
t i f f ' s t o s t r i k e o r dismiss said Counts a r e well taken. For the
reasons, and upon the authority c i t e d in P l a i n t i f f ' s b r i e f , said
counts f a i l t o s t a t e a claim against P l a i n t i f f upon which r e l i e f
may be granted. I t i s unnecessary t o grant such dismissal, how-
ever, as a l l of said counts a r e frivolous, impertinent and im-
material. The a l l e g a t i o n s in these four counts bear no r e l a t i o n -
ship whatsoever t o the p a r t i e s or issues involved i n t h i s case,
and a c t u a l l y a r e v i r t u a l l y u n i n t e l l i g i b l e as t o a cogent theory
supporting the claims f o r r e l i e f . B the r e l i e f demanded, Mr.
y
Bouma wishes t o enjoin the e f f e c t of and eventually s e t aside
previous f i n a l judgments of t h i s court t o which he was not a
party. Such i s a bald and unlawful c o l l a t e r a l attack upon those
judgments which were made upon due j u r i s d i c t i o n , or a t l e a s t Mr.
Bouma has not alleged otherwise. In addition, Mr. Bouma would
have no standing t o make such c o l l a t e r a l a t t a c k s , even i f i t were
allowable. These former judgments " a f f e c t " Mr. Bouma i n t h a t the
chain of events has produced a receiver which is suing him. Since
the P l a i n t i f f receiver has alleged t h a t he has been duly appointed
and authorized and Mr. Bouma has denied those a l l e g a t i o n s , the
r e c e i v e r ' s standing i s undoubtedly i n issue i n t h i s case by the
denials and defenses of Mr. Bouma. Such proof a s both p a r t i e s
a r e able t o adduce will go toward t h i s issue. To a small extent
such issue i s involved with the allegations Mr. Bouma has s e t
f o r t h i n these four counts of his counterclaim, and t o t h a t ex-
t e n t such allegations a r e n o t immaterial, however they a r e r e -
dundant. I t would be an unwarranted stretching of the l e t t e r
and theory of our procedural rules t o allow these counts t o stand.
Taken a s a whole, Counts One, Two, Three and Nine of Ralph Bouma's
counterclaim a r e frivolous, redundant and impertinent, and a r e here-
by stricken.
"(3) P l a i n t i f f ' s motion t o dismiss Counts Four, Five, Six, Seven
and Eight of Defendant Ralph Bouma's counterclaim i s hereby denied.
The allegations of Counts Seven and Eight, i f taken as t r u e f o r
purposes of said motion, c l e a r l y s t a t e a claim f o r r e l i e f against
t h e P l a i n t i f f corporation. The allegations of Counts Four, Five,
and Six however, a r e d e f i c i e n t and a n t i t h e t i c a l i n places, and
a r e confusing overall. Because these counts were submitted by
Mr. Bouma pro s e , he shall have an opportunity t o c l a r i f y the
nature of his alleged claims. I t would be wise f o r Mr. Bouma t o
consult with counsel a s t o the d e f i n i t i o n of f e e simple ownership
and then t o c l a r i f y Counts Four and F i v e as t o t h e exact n a t u r e
o f t h e performance sought and t h e exact p o r t i o n s o f t h e a1 leged
agreements g i v i n g r i s e t o such o b l i g a t i o n s . With regard t o
Count Six, M r . Bouma must s t a t e h i s damages w i t h p a r t i c u l a r i t y
b o t h as t o t h e exact nature o f t h e damage which i s a l l e g e d t o
be t h e breach o f t h e indemnity agreement and a l s o as t o t h e
damage which he has a l l e g e d t o have flowed from t h a t breach. I t
i s hereby ordered t h a t Defendant Ralph Bouma s h a l l have u n t i l
A p r i l 20, 1973, t o f i l e a more d e f i n i t e statement o f Counts
Four, F i v e and S i x o f h i s counterclaim, o r s u f f e r t h e i r d i s m i s s a l .
"Defendant Ralph Bouma s h a l l be g i v e n no f u r t h e r c o n s i d e r a t i o n
whatsoever f o r being unrepresented by counsel i n t h i s a c t i o n .
The c o u r t recognizes h i s r i g h t t o r e p r e s e n t h i m s e l f b u t s e r i o u s -
l y questions h i s judgment i n a case o f a p p a r e n t l y g r e a t magnitude
and meaning t o him. The c o u r t has no r e a l i n t e r e s t o r r i g h t i n
q u e s t i o n i n g h i s judgment o r motives unless and u n t i l h i s conduct
o f h i s own case s e r i o u s l y approaches t h e p o i n t o f hampering o r
impeding t h e a d m i n i s t r a t i o n o f j u s t i c e o r t h e r i g h t s o f o t h e r
p a r t i e s b e f o r e t h e c o u r t . W are now a t t h a t p o i n t . S p e c i f i c
e
i n s t a n c e s s h a l l go u n c i t e d a t t h i s time, however i t i s apparent
t h a t i n t h e p a s t M r . Bouma has used h i s l a c k o f r e p r e s e n t a t i o n
t o h i s advantage i n these proceedings and has a l s o used t h e f a c t
o f h i s w i f e ' s r e p r e s e n t a t i o n a l s o t o h i s advantage. I n t h e f u -
t u r e , counsel f o r Mrs. Bouma w i l l n o t be p e r m i t t e d t o argue o r
otherwise p a r t i c i p a t e i n instances where she has no more than a
t a n g e n t i a l i n t e r e s t and M r . Bouma has t h e d i r e c t i n t e r e s t . If
M r . Bouma wishes t o continue t o r e p r e s e n t h i m s e l f t h a t i s h i s
p r i v i l e g e , however h e n c e f o r t h he w i l l be h e l d t o t h e same h i g h
standards o f knowledge and s k i l l and e t h i c s as an a t t o r n e y and
o f f i c e r o f t h i s court.
"On September 22, 1972, Defendant Ralph Bouma f i l e d h e r e i n what
he denominated as a 'cross-claim' a g a i n s t Ray L i g h t n e r and Mrs.
Ray L i g h t n e r , h i s w i f e , n e i t h e r o f whom were p a r t i e s t o t h i s
a c t i o n . On February 26, 1973, t h e s a i d L i g h t n e r s f i l e d a com-
bined motion seeking t o dismiss s a i d k r o s s - c l a i m J f o r i t s
f a i l u r e t o s t a t e a c l a i m upon which r e l i e f c o u l d be granted,
and upon several o t h e r grounds enumerated i n s a i d motion, and
a l s o seeking t o s t r i k e s a i d ' c r o s s - c l a i m ' as being redundant,
immaterial , i m p e r t i n e n t and scandalous i n several enumerated
respects, and a l s o seeking a more d e f i n i t e statement. On
March 16, 1973, Defendant Ralph Bouma f i l e d a motion t o quash
s a i d combined motion.
"On November 28, 1972, Defendant Ralph Bouma f i l e d h e r e i n what
he denominated a ' c r o s s - c l a i m ' a g a i n s t t h e Farmers S t a t e Bank o f
Conrad, E a r l M. Berthelson and t h e U n i t e d Bank o f Pueblo, none o f
which were p a r t i e s hereto. On December 18, 1972, the Farmers
S t a t e Bank and M r . Berthelson f i l e d a l t e r n a t i v e motions t o s t r i k e
o r dismiss s a i d ' c r o s s - c l a i m ' and on December 19, 1972, t h e U n i t e d
Bank o f Pueblo f i l e d i t s motion t o dismiss f o r want o f j u r i s d i c -
t i o n . On December 21 , 1972, separate memoranda were f i l e d i n
support o f s a i d motions. On February 7, 1973, Defendant Ralph
Bouma f i l e d a motion t o quash these motions o f t h e s a i d banks
and t h e s a i d M r . Berthelson, combined w i t h t h e motion t o quash
P l a i n t i f f ' s motions as h e r e i n b e f o r e r e f e r r e d t o , t o g e t h e r w i t h a
memorandum i n support o f s a i d motion t o quash. On February 14,
1973, t h e Farmers S t a t e Bank and M r . B e r t h e l son f i l e d a j o i n t
memorandum i n opposition t o Bouma ' s motion t o quash and in support
of t h e i r own motions, and on February 15, 1973, t h e United Bank
of Pueblo f i l e d a reply memorandum t o Bouma's motion t o quash,
"Neither Ralph Bouma nor the Lightners have requested a hearing
upon the Lightners' motions nor Mr. Bouma's motion t o quash them
b u t the Court deems i t s e l f aware and informed s u f f i c i e n t l y t o r u l e
from the face of said motions and t h e face of said 'cross-claim'.
By order of the Court the motions of the Farmers S t a t e Bank of
Conrad, Earl M. Berthelson and the United Bank of Pueblo, and
Ralph Bouma's motions t o quash said motions were s e t f o r hearing
on March 1 , 1973. The Court having considered t h e several motions
of the p a r t i e s , the memoranda i n support thereof or opposition
t h e r e t o , t h e arguments of Mr. Ray F. Koby, representing the
Farmers S t a t e Bank and Earl M. Berthelson, Cresap S. McCracken
representing the United Bank of Pueblo, Ralph Bouma representing
himself and Gale Gustafson representing Mrs. Ralph Bouma (over
the objection of Mr. McCracken and Mr. Koby), and the Court being
cognizant of the condition and circumstances of the record in
this cause and being f u l l y informed i n the premises, IT IS HEREBY
ORDERED A FOLLOWS:
S
" ( 1 ) The motion of Ralph Bouma t o quash t h e motions of the
Lightners, and the motion of Ralph Bouma t o quash the motions of
the Farmers S t a t e Bank, Earl M. Berthelson, and the United Bank
of Pueblo are both hereby denied. Reference i s made t o paragraph
1(1) of t h i s Combined Order. The reasoning and r e s u l t s s e t f o r t h
there apply here. As s t a t e d i n the McVay case hereinbefore re-
ferred t o , such a motion i s t o be regarded as superfluous, f r i v o -
lous, confusing and bad practice. Said motions have been taken
by this Court t o be memoranda i n opposition t o the motions sought
t o be quashed and have been read and considered by the Court.
" ( 2 ) The motion of Ray Lightner and Mrs. Ray Lightner t o s t r i k e
the 'cross-claim' of Defendant Ralph Bouma i s hereby granted. The
motion of the Farmers S t a t e Bank of Conrad and Earl M . Berthelson
t o s t r i k e Ralph Bouma's 'cross-claim' is hereby granted. Ralph
Bouma's 'cross-claim' as pertains t o the United Bank of Pueblo
is hereby stricken by t h i s Court's own motion as provided by Rule
1 2 ( f ) of t h e Montana Rules of Civil Procedure. Additionally, the
motion of the Lightners f o r dismissal of said 'cross-claim' f o r
i t s f a i l u r e t o s t a t e a claim is hereby granted. The motion of the
Farmers S t a t e Bank and Mr. Berthelson t o dismiss the 'cross-claim'
against them f o r i t s f a i l u r e t o s t a t e a claim i s hereby granted.
And the motion of the United Bank of Pueblo t o dismiss the 'cross-
claim' as pertains t o t h a t bank f o r t h i s Court's lack of j u r i s -
diction over said bank and lack of j u r i s d i c t i o n over the subject
matter i s hereby granted. The remaining motions of t h e Lightners
as s e t f o r t h in t h e i r combined motions as f i l e d herein on February
26, 1973, a r e deemed moot.
"Neither the Farmers S t a t e Bank, Earl M . Berthelson, United Bank
of Pueblo, Ray Lightner nor Mrs. Ray Lightner a r e p a r t i e s t o t h i s
action. The Montana Rules of Civi 1 Procedure do not permit nor
even contemplate a cross-claim against a person o r e n t i t y which
i s not a party. Neither 'cross-claim' cam be converted i n t o a
t h i r d party claim under Rule 14 of the Montana Rules of Civil
Procedure a s , in neither case, can the allegations or the r e l i e f
sought be stretched t o s t a t e t h a t any of these nonparties a r e , o r
may be l i a b l e t o Mr. Bouma f o r a l l o r part of t h e P l a i n t i f f ' s claim
.
against Mr. Bouma Furthermore, neither 'cross-cl aim' s e t s f o r t h
f a c t s e n t i t l i n g Ralph Bouma t o any r e l i e f against the said non-
p a r t i e s . The r e l i e f sought i n said 'cross-claim' i s not such a s
would make the addition of any of said nonparties j u s t i f i a b l e a s
necessary or proper p a r t i e s .
"The allegations i n the 'cross-claim' against the United Bank
of Pueblo, are v i s i b l y devoid of any reference t o said United Bank
of Pueblo and do not support any claim f o r re1 i e f i n favor of Ralph
Bouma against said bank whatsoever. The 'summons' served upon t h e
United Bank of Pueblo, w i t h i n the S t a t e of Colorado i s l e g a l l y
i n s u f f i c i e n t t o obtain j u r i s d i c t i o n over said bank f o r want of
meeting the m i n i m u m requirements of Montana Rules of Civil Pro-
cedure Rule 4C. Nothing i n the pleadings, b r i e f s , argument o r
judicial notice of t h i s Court shows the United Bank of Pueblo
t o be subject t o the j u r i s d i c t i o n of t h i s Court in t h i s proceed-
ing under M.R.C.P. Rule 4B o r otherwise. The r e l i e f sought against
the United Bank of Pueblo, and against the Farmers S t a t e Bank of
Conrad and Earl M. Berthel son are again attempts t o s e t aside
previous f i n a l judgments of t h i s Court, with no jurisdictional
deficiencies alleged, by a person who was not a party thereto.
Such attempts a r e prohibited c o l l a t e r a l attacks upon said judg-
ments a s s e t f o r t h in paragraph I . of t h i s Combined Order.
"On February 28, 1973, Defendant Ralph Bouma, along w i t h Mrs.
Ralph Bouma, f i l e d a document e n t i t l e d Motion t o Quash and Motion
For Substitution of Appearances. T h i s motion sought an order
quashing the motion by the Central Bank of Montana t o deposit
funds into court. That motion t o quash was denied i n t h i s Court's
order dated March 20, 1973, e n t i t l e d Order Requiring Deposit of
Money a t I n t e r e s t . The remainder of the motion seeks an order
requiring a d i f f e r e n t law firm t o be substituted as counsel f o r
the Farmers S t a t e Bank i n t h i s action because of an alleged con-
f l i c t of i n t e r e s t of said law firm from alleged previous represen-
t a t i o n of c e r t a i n individuals n o t p a r t i e s t o t h i s action, namely
individual members of the Iverson family who were formerly stock-
holders in the corporation which i s P l a i n t i f f herein. These motions
were noticed by the Boumas f o r hearing on March 1 , 1973, the time
s e t by the court f o r the hearing of other motions herein prev-
iously ruled upon. However, said motions were not served upon
adversaries, p a r t i c u l a r l y the Farmers S t a t e Bank, u n t i l March 1 ,
1973, a t the hearing of said other motions. The Court a t t h a t
time, prior t o reading Bouma ' s memorandum, a1 1owed counsel f o r
t h e Farmers S t a t e Bank ten (1 0) days t o f i l e a memorandum in
opposition t o said motion, said memorandum having been f i l e d here-
i n on March 9, 1973. The court a l s o allowed an additional ten (10)
days f o r Ralph Bouma t o f i l e a responding memorandum in support
of said motion, said memorandum having been f i l e d herein on March
20, 1973. The court a t t h a t time a l s o s t a t e d i t s intention t o
r u l e upon said motion from the b r i e f s and memoranda submitted.
The court having the f u l l benefit of the aforesaid memoranda
and being f u l l y informed i n t h e premises, IT IS HEREBY ORDERED
t h a t the motion f o r substitution of appearances f i l e d herein by
Ralph Bouma and Mrs. Ralph Bouma be, and hereby i s denied. In so
r u l i n g , the court has attempted t o r e t a i n i t s o b j e c t i v i t y , con-
tinuing t o assume t h a t such motion was legitimately motivated,
an exceedingly d i f f i c u l t task considering the motion i s absurd
i n nature, irrelevant and scandalous i n content and basely vituper-
a t i v e i n tone. There i s no place in our judicial system f o r
such an undignified product even i f a member of the bar had not
l e n t h i s name t o i t . T h i s is true apart from t h e truth or
fa1 s i t y of the t o r r e n t of a1 l egations s e t f o r t h i n Mr. Bouma's
memoranda. The argument and authority s e t f o r t h in the memoran-
dum of Farmers S t a t e Bank i n opposition t o the Boumas' motion,
a t paragraph 11. thereof, i s well taken. Said motion i s u n -
authorized and most impertinent and should properly be stricken
from the record. Since the Court's ruling i n paragraph 11. ( 2 )
hereof renders t h e question of the representation of Farmers
S t a t e Bank moot anyway, the Court's order of denial of the motion
will s u f f i c e , w i t h t h e caveat t o Defendant Bouma and t o any
counsel f o r h i m or Mrs. Bouma t h a t any f u t u r e motions or plead-
ings f i l e d herein w i t h content of a similar nature or w i t h sim-
i l a r apparent motivation will be stricken summari l y and consider-
ed a s contemptuous.
"On March 1 , 1973, a t the time of the aforementioned hearing,
counsel f o r Mrs. Ral ph Bouma herein, Dale L . Kei 1 , presented t o
the court l e t t e r s purportedly signed by Carl 0. Iverson and Larry
C . Iverson authorizing said counsel t o additionally represent them
i n these proceedings. Said counsel then proceeded t o f i l e herein
a motion by said persons t o intervene in these proceedings pur-
suant t o Rule 24 of the Montana Rules of Civil Procedure. Attached
thereto was a proposed p e t i t i o n t o be f i l e d by said persons t o
s e t aside previous orders of t h i s court, based upon similar or
identical allegations t o those s e t f o r t h by Defendant Ralph Bouma
a s Counts One, Two, Three and Nine of his counterclaim against
P l a i n t i f f herein and the same or similar t o those allegations
contained in said Ralph Bouma's 'cross-claim' against t h e Farmers
S t a t e Bank, Earl M. Berthelson, and the United Bank of Pueblo, a l l
of which has been hereinbefore stricken and dismissed. On March 1 ,
1973, the Court allowed said counsel ten (10) days t o f i l e a brief
i n support of said motion t o intervene and stated i t s intention
t o r u l e from b r i e f s . Counsel f o r Carl 0. Iverson and Larry C .
Iverson f i l e d such memorandum herein on March 12, 1973, and
appended t o i t a notice of hearing upon said motion s e t f o r April
2, 1973. N such hearing has been s e t by the Court. Further, on
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March 16, 1973, counsel f o r said Iversons f i l e d herein a document
denominated a Proposed Motion f o r D squal i f ication of Counsel
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and t o Set Aside. This seeks an order t o disqualify t h e law firm
representing the Farmers S t a t e Bank upon the same grounds as the
motion denied t o Defendant Ralph Bouma i n the preceding paragraph
and f u r t h e r seeks an order declaring previous orders of t h i s Court
null and void f o r said a1 leged c o n f l i c t s of i n t e r e s t . Such pro-
posed motion incorporates by reference a l l of the contents of the
motion and the supporting memoranda and the argument pertaining
t o said motion f o r substitution of counsel by Ralph Bouma. The
Court having considered the motion f o r intervention by Carl 0.
Iverson and Larry C . Iverson, together with the memorandum i n
support thereof, taking cognizance of Defendant Ral ph Bouma Is
previous claims of a similar nature t o the p e t i t i o n proposed,
taking judicial notice of the f i n a l judgment of t h i s court i n
Civil Actions No. 8221 and 8073 consolidated, and deeming i t s e l f
f u l l y informed and advised i n the premises without f u r t h e r memo-
randa from possible opposing parties and without argument, IT IS
HEREBY ORDERED A FOLLOWS:
S
"1. That the notice of hearing upon said motion appended t o the
Iversons' memorandum i s hereby stricken and any hearing which the
Clerk of the above-entitl ed court may have docketed f o r said date
is hereby vacated. Such notice was contrary t o the s t a t e d i n -
tention of t h i s Court, i n open court. While the Court i s not
adverse t o scheduling hearings f o r p a r t i e s upon proper request, a
hearing and f u r t h e r argument upon this motion would be superfluous.
2 The document e n t i t l e d Proposed Motion For Disqualification
of Counsel and To Set Aside, f i l e d herein by Larry C . Iverson
and Carl 0. Iverson i s hereby s t r i c k e n . The Iversons a r e not p a r t i e s
t o t h i s action, b u t merely seeking t o a t t a i n t h a t s t a t u s and as such
have no standing t o make any motions until they a r e p a r t i e s . In
addition, a l l t h a t i s set f o r t h i n paragraph 111. herein i s appli-
cable here, especially since the Iversons propose t o adopt by
reference the e n t i r e Bouma motion i n t h a t regard. Simply because
the Iversons would allege t h a t said law firm a t one time represented
them would not add any sanction or dignity t o such a motion. I t
i s evident t o the Court t h a t such proposal, i f allowed, i s merely
an attempt by Mr. Bouma t o do i n d i r e c t l y what he cannot do d i r e c t l y .
"3. The motion of Carl 0. Iverson and Larry C . Iverson t o i n t e r -
vene i n these proceedings i s hereby denied. Nowhere in t h e motion
or the supporting memorandum i s i t suggested t h a t the Iversons have
any more i n t e r e s t i n these proceedings than the f a c t t h a t a t one
time they -stockholders in the P l a i n t i f f corporation. Judicial
were
notice is properly taken of the aforementioned judgment of this
Court in actions numbered 8221 and 8073 ruling t h a t said persons a r e
no longer stockholders nor o f f i c e r s nor d i r e c t o r s of said corpora-
tion and therefore have no i n t e r e s t in i t . The apparent sole p u r -
pose of intervention here i s a c o l l a t e r a l a t t a c k upon said judgment,
and others of this Court, which, according t o the proposed p e t i t i o n ,
contains no f u r t h e r enabling allegations than the previous c o l l a t e r a l
a t t a c k s which were dismissed hereinbefore. Additional l y , such attempt
t o e x e r t an i n t e r e s t i n Larry C . Iverson, Inc. would appear t o be
contemptuous of paragraph 6 of the order of t h i s Court dated April 7 ,
1971, and entered i n Causes No. 8221 and 8073 cons01 idated.
"V.
"IT IS FURTHER ORDERED t h a t any f u r t h e r attempts t o f i l e herein any
documents s u b s t a n t i a l l y similar or identical t o those dismissed o r
stricken by t h i s Combined Order will be considered contemptuous un-
l e s s preceded by a petition seeking leave of t h i s Court t o so f i l e ,
and an order granting such leave.
"VI.
"Upon the Court Is own motion IT IS HEREBY ORDERED t h a t t h e demand
or demands f o r jury t r i a l f i l e d herein a r e hereby s t r i c k e n . The
court is exercising i t s equity j u r i s d i c t i o n over these e n t i r e
proceedings and i t i s therefore fundamental t h a t there i s no r i g h t
t o a jury t r i a l f o r any party. The court may well exercise i t s
discretion t o c a l l an advisory jury f o r any o r a l l factual ques-
tions upon which i t would d e s i r e assistance in determination. Due
and s u f f i c i e n t notice will be given t o a l l p a r t i e s i n t h a t event."
The foregoing combined order says i t a l l . The brief of appellants on
appeal continues t o use language, the nature of which the d i s t r i c t judge de-
scribed as "absurd i n nature, i r r e l e v a n t and scandalous in content and basely
vituperative in tone."
The appellants a s s e r t three issues on appeal, which are s t a t e d a s
a b s t r a c t questions and do n o t point out any e r r o r on the part. of t h e t r i a l
judge. Essentially a s i n g l e issue i s determinative of the appeal. That is
whether an order such as t h i s s t r i k i n g portions of a pleading a s being f r i v -
olous, impertinent and immaterial is appealable.
W hold t h a t i t i s not.
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The materials stricken have t o do w i t h matters previously ruled upon
in Cause No. 12387 heretofore referred t o . In t h a t opinion we s a i d :
"Extensive proceedings followed r e s u l t i n g i n a s h e r i f f ' s s a l e
of the pledged corporate stock t o p l a i n t i f f and a judgment
f o r p l a i n t i f f on October 2 , 1367, by the d i s t r i c t court approv-
ing the s a l e of the stock, although i t allowed the corporation
t o prevent a f o r f e i t u r e of i t s stock i f i t s terms of i t s Aug-
u s t 22, 1966 'purchase of indebtedness' agreement made i n
open court were complied w i t h by October 10, 1967. This com-
pliance never occurred so the judgment became f i n a l .
"From this judgment an appeal t o this Court was taken by de-
fendants b u t never perfected.
"Up t o t h i s point i t is t o be noted t h a t p e t i t i o n e r s and
appellants were n o t p a r t i e s t o this l i t i g a t i o n , nor i n any other
causes of action being Nos. 8073 and 8221, Pondera County, both
of which involve the appointment of a receiver f o r the Carl 0.
Iverson Corporation and operation of the corporate properties.
"There i s a cause of action however in which p e t i t i o n e r s and
appellants a r e involved as defendants, and t h a t i s cause No.
8509, Pondera County wherein the receiver of the Carl 0. Iverson
Corporation is seeking t o have s e t aside a 'contract f o r deed'
executed on July 17, 1968 by purported o f f i c e r s of the corpor-
ation a s s e l l e r t o the petitioners as buyers, and a 'farm oper-
ation ' agreement between the corporation and p e t i t i o n e r s and
appellants dated June 16, 1967.
"Now going back t o t h e original action, cause No. 7779, from
which t h i s appeal found i t s beginning.
"Commencing w i t h July 1972, p e t i t i o n e r s and appel 1a n t s began
f i l i n g i n t h i s proceeding certain documents now known as
'Bouma papers'. These papers consist of an a f f i d a v i t of d i s -
q u a l i f i c a t i o n , p e t i t i o n t o s e t aside judgment of October 2,
1967, motion f o r s t a y of proceedings, a f f i d a v i t , application f o r
oral hearing on motion, motion f o r advisory jury, brief in
support of motion, motion t o s t r i k e nonparties postjudgment,
statement f o r the record and brief i n support of motion t o s t a y
proceedings, a1 1 f i l e d pro s e .
"On August 29, 1972 the d i s t r i c t court entered i t s order, f i l e d
August 30, 1972, finding:
" ' a l l of said f i l i n g s of said Ralph and Mrs. Ralph Bouma in said
cause a r e frivolous, e n t i r e l y without merit, and t h a t Ralph
Bouma and Mrs. Ralph Bouma a r e not e n t i t l e d t o any r e l i e f of
whatever nature in said cause, and a r e strangers into said cause
without any r i g h t whatever t o be heard or otherwise p a r t i c i p a t e
t herei n ;
" 'NOW THEREFORE ***
" ' * * * they a r e hereby stricken from the above e n t i t l e d cause
as frivolous'.
"From this order p e t i t i o n e r s and appellants have appealed t o
t h i s Court and from the date of f i l i n g the notice of appeal,
September 12, 1972, a r e f i n a l l y , publicly and openly repre-
sented by counsel.
"We have experienced l i t t l e d i f f i c u l t y i n finding t h a t t h e
t r i a l court was correct and we so hold."
From the foregoing i t i s c l e a r t h a t the matters stricken had been ruled
upon before; and aside from t h e i r lack of relevancy were res judicata. Treat-
ing Boumas' pleadings stricken a s an attempt t o a1 lege fraud, Ralph Bouma's
only i n t e r e s t claimed was a l i e n f o r farm crop services which he claimed t o
have a t one time rendered the corporation. N claim was alleged i n any event.
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I t follows t h a t an attempted appeal from an order s t r i k i n g portions of
t h e pleadings i s improper both on the merits and procedurally. In Volume 2A
of Moore's Federal Practice, p. 2424, i n discussing Rule 12, Motions t o S t r i k e ,
the author s t a t e s : "* * * a mass of evidence unnecessarily pleaded, legal
conclusions argued a t length, paragraphs seeking t o r e t r y a previous a c t i o n ,
or obviously sham matter may be s t r i k e n . " This f i t s the s i t u a t i o n here. An
order s t r i k i n g such matters i s n o t appealable prior t o f i n a l judgment. See
S t a t e ex r e l . G . F. Nat. Bk. v . D i s t r i c t Court, 154 Mont. 336, 340, 463 P.2d
326.
This leaves a s the only remaining issues the d i s t r i c t c o u r t ' s order
dismissing the stockholders of Larry C . Iverson, Inc. as determined in Pondera
County Civil Action 8221; and dismissing as t o Lightners. In a l l respects we
affirm. The order previously quoted is adopted i n i t s e n t i r e t y .
W have not d e a l t w i t h other matters appearing i n the b r i e f s such as
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charge of c o n f l i c t of counsel, charges against other p a r t i e s and counsel. We,
l i k e t h e d i s t r i c t judge, have s t r i v e n t o remain objective. W have examined
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t h e record and caution counsel f o r appellants. A word t o the wise should be
sufficient.
Bouma is i n possession of the productive farm land, harvesting t h e crops
therefrom; and it may be that the trial judge will have to fashion procedures
to force the issue to trial on the merits. Contempt powers, impoundment
of the funds derived from crops and other procedures should be sufficient
for the trial judge to force the issue to trial.
Having examined the record, the issues and all other matters, we affirm
the order.
(Justice
Wk concur: +- .*
r .
Chief Justice