United Bank of Pueblo v. Iverson , 164 Mont. 473 ( 1974 )

No. 12684
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1974
UNITED BANK O PUEB~O,(formerly
F
Arkansas Valley Bank) a Colorado
banking c o r p o r a t i o n ,
P l a i n t i f f and Respondent,
-vs -
C R 0. IVERSON and M B L IVERSON,
AL AE
Defendants and A p p e l l a n t s .
Appeal from: D i s t r i c t Court o f t h e Ninth J u d i c i a l D i s t r i c t ,
Honorable Robert Sykes, Judge p r e s i d i n g .
Counse 1 of Record :
For Appellants:
K e i l and Gustafson, Conrad, Montana
Gale R. Gustafson argued, Conrad, Montana
For Respondent:
Cresap S. McCracken argued, Great F a l l s , Montana
Submitted: May 22, 1974
Decided: JUL 2 2 19%
Filed : ,HJi 2 2 1974
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant Carl 0 Iverson appeals from two orders of the
.
district court of Pondera County: (1) an order refusing to vacate
a summary judgment in favor of plaintiff, and (2) an order denying
recovery of witness fees and mileage previously paid to one of
plaintiff's attorneys.
Appellant is one of two defendants in the district court,
the other being his wife who died prior to appeal. As appellant
prosecutes this appeal both individually and as heir apparent of
his deceased wife, we will treat this appeal as prosecuted by both
defendants. Plaintiff and respondent is the United Bank of Pueblo,
formerly the Arkansas Valley Bank.
In September 1964, the bank filed a debt action containing
two counts against the Iversons in the district court of Pondera
County. The first count sought recovery of approximately $23,000
and interest under a Colorado judgment based on a cognovit promissory
note. The second count sought recovery of approximately $48,000
and interest based on the Iversons' written guarantee to the bank
of the defaulted debts of Transcontinental Leasing Corporation.
During pretrial discovery proceedings, the bank filed a
demand for admissions by defendants under Rule 36, M.R.Civ.P.
Service could not be accomplished on counsel for defendants due
to withdrawal of counsel of record; service could not be made on
defendants personally as they could not be located.
On motion of plaintiff, the district court on May 10, 1965,
ordered defendants to appoint counsel or appear in person on the
same day and granted defendants an additional 20 days to May 30,
1965, to respond to plaintiff's demand for admissions.
On May 27, the district court ordered service be made on
defendants (1) by mailing to defendants' last known address in
Conrad, Montana, copies of the demand for admissions, notice to
appear in person or appoint counsel, and a copy of the court's
order of May 10, and (2) by leaving copies of these documents
for defendants with the clerk of court in Conrad. On the same
day copies of the pertinent documents were so mailed and deposited.
On June 21, plaintiff filed a motion requesting a court
order establishing as admitted all matters covered by plaintiff's
demand for admissions by reason of defendants' failure to respond.
The district court entered an order accordingly on the same day.
On the same day plaintiff moved for summary judgment and hearing
thereon was set for July 5. Copies were ordered served on defend-
ants personally or if this could not be accomplished, then by
mailing to defendants' last known address a d b y deposit with the
clerk of court.
On June 30, a firm of Kalispell attorneys filed a praecipe
of its appearance for defendants. The hearing on summary judgment
was continued from time to time to October 13. In the meantime,
defendants' written interrogatoriesto plaintiff were filed and
served. Plaintiff filed objections thereto.
On October 13, 1965, the district court entered summary
judgment for plaintiff in accordance with the prayer of its
complaint.
A sheriff's sale on execution was held. The bank purchased
the stock of defendants in Larry C. Iverson, Inc. and the interest
of defendants in stock in Larry C. Iverson, Inc. and Carl 0.
Iverson, Inc. held by their two children.
Defendants' appealed from the summary judgment on December
9, 1965. The appeal was subsequently dismissed in February, 1967.
On June 6, 1967, defendants filed in the district court
their motion to vacate and set aside the juagent against them on
the grounds of newly discovered evidence of fraud under Rule 60(b),
M.R.Civ.P.
- 3 -
On January 26, 1968, the district court (1) denied defend-
ants' notion to set aside the summary judgment because of defend-
ants' failure to prosecute their motion, and (2) issued an order
to show cause why defendants did not satisfy the judgment which
required defendants1 personal appearance on February 5, 1968.
On February 9, 1968, the district court found defendants
in contempt of court for their failure to appear, but reserved im-
position of any penalty and granted them 45 days to purge them-
selves of contempt by appearance as originally directed.
On March 11, 1968, defendants filed a second identical
motion to vacate the summary judgment on the same basis as the
first. They also filed a motion to recover witness fees and mileage
paid to one of plaintiff's attorneys who responded to a subpoena
duces tecum issued by defendants.
Eventually, the present Conrad attorneys for Carl 0.
Iverson appeared and disqualified Judge McPhillips. Judge Sykes
assumed jurisdiction and set all pending motions for hearing.
Following hearing, Judge Sykes (1) denied defendants' motion
to recover witness fees and mileage previously paid one of plain-
tiff's attorneys for responding to a subpoena duces tecum issued
by defendants, (2) denied the several motions to vacate the summary
judgment.
Defendant Carl 0 . Iverson, on behalf of himself and his
deceased wife, filed notice of appeal from those rulings on Nov-
ember 30, 1973.
Two issues are before us for review:
(1) Was the district court's refusal to vacate and set
aside its summary judgment correct?
(2) Can defendants recover the witness fees and mileage
previously paid to one of plaintiff's attorneys for responding to
a subpoena duces tecum issued by defendants?
The first issue is defendants' principal contention.
The basic arguments are: (1) the district court's order ruling
that the matters contained in plaintiff's demand for admission
were improperly entered, tainted the summary judgment, and the
same should have been vacated and set aside; (2) the indebtedness
sued upon was bottomed on cognovit promissory notes illegal in
Arizona and Montana; and (3) the foreign judgment in the first
court was never properly authenticated.
Each of these contentions involves the validity of the
summary judgment in the first instance. Once the district court
refused to vacate and set aside the summary judgment, defendants'
remaining remedy was by appeal. Here defendants filed an appeal
and later requested this Court to dismiss it which was done. This
affirmed the district court's order refusing to revacate the sum-
mary judgment. Rule 12, M.R.App.Civ.P.
The refusal cannot be revived for a second review by the
filing of a second identical motion to vacate 18 months later.
The first denial of defendants' motion to vacate for the reason
defendants failed to prosecute the same became the law of the case
and binding on the parties. Libin v. Huffine, 124 Mont. 361, 224
P.2d 144; Apple v. Edwards, 123 Mont. 135, 211 P.2d 138. The
matters necessarily3.djudicated therein became res judicata. See
Butler v. Brownlee, 152 Mont. 453, 451 P.2d 836, and cases cited
therein. Judge Sykes was correct in so holding.
The second issue for review requires no extended discussion.
The reason defendants cannot recover witness fees and mileage paid
one of plaintiff's attorneys is that they subpoenaed him to appear.
Rule 45(c), M.R.Civ.P. requires advance payment at the statutory
rate on demand. It does not distinguish between attorneys and
laymen. The particular attorney did not have to be there had he
not been subpoenaed, and he is entitled to the statutory witness
fee and mileage. The ruling of the district court is correct.
The motion of plaintiff to assess a monetary penalty
against defendants for their conduct herein is denied as a matter
of discretion. We recognize dilatory tactics by and on behalf
of defendants; we note that defendants have been found guilty of
contempt of court; nonetheless we feel that no purpose would be
served by assessing a monetary penalty at this time.
Judgment affirmed.
Justice