Central Montana Stockyards v. Fraser

• Decision Date: 17 February 1958
• Docket Number: No. 9739,9739
• Citation: 320 P.2d 981,133 Mont. 168
• Parties: CENTRAL MONTANA STOCKYARDS, a corporation, Plaintiff and Respondent, v. R. B. Fraser and Rosabelle Fraser, Defendants, and E. C. Clark et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 981

320 P.2d 981

133 Mont. 168

CENTRAL MONTANA STOCKYARDS, a corporation, Plaintiff and Respondent, v. R. B. Fraser and Rosabelle Fraser, Defendants, and E. C. Clark et al., Defendants and Appellants.

No. 9739.

Supreme Court of Montana.

Submitted April 24, 1957.

Decided Dec. 19, 1957.

Rehearing Denied Feb. 17, 1958.

Howard C. Gee, Lewistown, G. J. Jeffries, Roundup, argued orally for appellants.

DeKalb, Dockery & Symmes, Lewistown; Weymouth Symmes, Billings, and H. Leonard DeKalb, Lewistown, argued orally for respondent.

ADAIR, Justice.

This is an appeal from a final judgment entered on a preliminary hearing in an action in interpleader brought by Central Montana Stockyards, a corporation, as plaintiff, against the defendants, R. B. Fraser, Rosabelle Fraser, E. C. Clark, Grace Clark, Evan Owens and Zada Owens.

This is the fifth separately numbered proceeding to be filed in the Supreme Court since April 1954, involving some particular phase or outgrowth of an action at law, district court suit No. 19805, commenced February 18, 1954, by R. B. Fraser and Rosabelle Fraser, his wife, as plaintiffs against the defendants E. C. Clark and Evan Owens. See Fraser v Clark and Owens, Supreme Court No. 9435, decided July 8, 1954, 128 Mont. 160, 273 P.2d 105; State ex rel. Clark & Owens v. District Court, Supreme Court No. 9494, decided January 20, 1955, 128 Mont. 526, 278 P.2d 1000; Fraser v. Clark & Owens, Supreme Court No. 9522, decided April 5, 1955, 129 Mont. 56, 282 P.2d 459; State ex rel. Fraser v. District Court, Supreme Court No. 9529, decided May 4, 1955, 128 Mont. 625-627, 283 P.2d 223, and the instant appeal, Supreme Court No. 9739, Central Montans Stockyards v. Fraser.

In the year 1952 E. C. Clark and Evan Owens, owners of a large herd of purebred Hereford cattle then in the State of Nebraska, were desirous of acquiring sufficient suitable lands in the State of Montana to accommodate the needs of their herd which they were anxious to move to Montana.

R. B. Fraser claimed to own certain ranch lands suitable to meet the requirements of Clark and Owens and, after extended negotiations, R. B. Fraser, as seller, and E. C. Clark and Evan Owens, as buyers, entered into three separate instruments in writing, for the purchaser from R. B. Fraser of two fenced and enclosed ranches both situate in Fergus County, Montana and commonly known and designated as: (1) The Home Ranch also called the Moulton Ranch and (2) The North Ranch, which ranches were located about fifteen miles apart and neither of which was described in the writing pertaining to the transaction by either section, township or range numbers.

The three writings pertaining to the purchase all bear date of December 30, 1952, and were: (1) 'Receipt and Agreement to Sell and Purchase,' (2) 'Supplement to Receipt and Agreement to Sell and Buy' and (3) 'Contract for Deed'. The pertinent parts of the aforesaid three writings appear in Fraser v. Clark & Owens, Supreme Court Appeal No. 9522, 129 Mont. 56, at pages 60-65, 282 P.2d 459, at pages 461-464.

On February 18, 1954, the seller R. B. Fraser and his wife, Rosabelle Fraser, as plaintiffs, commenced civil suit No. 19805 in the district court for Yellowstone County, Montana, against the purchasers, E. C. Clark and Evan Owens, as defendants, demanding a money judgment of $28,500 with interest as well as interest on a larger sum claimed by R. B. Fraser to be owing to him from Clark and Owens under one or more of the three above mentioned writings.

Upon the commencement of such civil suit No. 19805, R. B. Fraser caused a writ of attachment to issue and be delivered to the sheriff of Fergus County, Montana, who, on February 20, 1954, levied upon, seized and attached virtually all of the personal property of the defendants E. C. Clark and Evan Owens, in Fergus County, including 394 head of cattle plus 186 head of suckling calves.

On the timely motion of Clark and Owens, the Honorable Guy C. Derry, judge presiding in said cause in the district court for Yellowstone County, ordered a change of venue to the district court for Fergus County which order, on appeal to this court, was affirmed. See Fraser v. Clark & Owens, Supreme Court Appeal No. 9435, supra, decided July 8, 1954.

On August 6, 1954, the Honorable Stewart McConochie, the duly elected judge of the district court for Fergus County, before whom the transferred civil action No. 19805 was then pending, on the petition of the defendants E. C. Clark and Evan Owens, made an order releasing from the attachment a part of the Clark and Owens property levied upon, namely: 36 head of dry 2-year old heifers, 11 head of horses and certain enumerated automobiles, trucks, tractors and ranch machinery and equipment. See Fraser v. Clark & Owens, 129 Mont. 56, at page 57, 282 P.2d 459, at page 460.

On September 21, 1954, R. B. Fraser and Rosabelle Fraser disqualified District Judge McConochie, whereupon the Honorable Victor H. Fall, a judge of the First Judicial District in and for the Counties of Lewis and Clark and Broadwater, was called in and assumed jurisdiction in said cause No. 19805. Following a hearing on the petition of Clark and Owens to dissolve the attachment on the remainder of the attached property, Judge Fall made an order denying the petition and refusing to dissolve the attachment, from which order Clark and Owens appealed to this court as is provided for in R.C.M.1947, Sec. 93-8003, subd. 2, Sec. 93-8004, subd. 3, and Sec. 93-8005, the appeal being No. 9522, in this court.

On December 6, 1954, and while their said appeal No. 9522 was pending in and undetermined by this court the defendants, E. C. Clark and Evan Owens, sold and delivered to Central Montana Stockyards, a corporation, engaged in business at Lewistown, Montana, 175 head of calves for the agreed sum of $14,390.12 for which the buyer, Central Montana Stockyards, made and issued three sight drafts, drawn by it on the Northwestern Bank of Lewistown, Montana, each dated December 6, 1954, and each payable to the order of E. C. Clark, Grace Clark, Evan Owens and Zada Owens, being sight drafts No. 1565 for $7,195.06, No. 1566 for $3,597.53 and No. 1567 for $3,597.53.

Immediately upon the issuance thereof on December 6, 1954, all three of the sight drafts were seized and attached by the sheriff of Fergus County as the property of the defendants, Clark and Owens, said sheriff assuming to act pursuant to the authority of a writ of attachment issued in said civil action No. 19805, at the instance of R. B. Fraser and Rosabelle Fraser, the plaintiffs therein. The property must belong to the defendants before it is subject to attachment. 3 Bancroft's Code Pleading, p. 3045, § 2287, notes 4 and 5.

On April 5, 1955, the supreme court pronounced its opinion, decision and judgment on said appeal No. 9522 adjudging that the attachment of the cattle and other personal property belonging to the defendants E. C. Clark and Evan Owens was wrongful and forthwith dissolving and discharging such attachment upon the merits in toto.

Also, on April 5, 1955, remittitur duly issued out of the supreme court, in appeal No. 9522 as ordered, and on April 7, 1955, such remittitur, with a true copy of the supreme court's opinion, decision and judgment thereto appended, was duly filed in the office of the clerk of the district court for Fergus County in cause of action No. 19805.

On April 11, 1955, the sheriff of Fergus County delivered to the defendants, Clark and Owens, the three sight drafts totaling $14,390.12 which said sheriff had seized and withheld from the payees, Clark and Owens, since December 6, 1954. Clark and Owens immediately presented the drafts to Northwestern Bank of Lewistown for payment but the drawee bank declined to honor the drafts and informed Clark and Owens that the drawer, Central Montana Stockyards, had stopped payment on all thereof.

On the following day, April 12, 1955, the drawer, Central Montana Stockyards, as plaintiff, filed in the district court for Fegus County its complaint in interpleader, being district court cause No. 19910, naming as defendants therein, R. B. Fraser, Rosabelle Fraser, E. C. Clark, Grace Clark, Evan Owens and Zada Owens.

On May 2, 1955, the defendants E. C. Clark, Grace Clark, Evan Owens and Zada Owens, by and through their counsel, appeared in said cause No. 19910 by written motion to strike designated portions of Central Montana Stockyards' complaint in interpleader.

On May 18, 1955, the defendants R. B. Fraser and Rosabelle Fraser, by and through their counsel, appeared in cause No. 19910 by interposing a general demurrer to the plaintiff corporation's complaint in interpleader, which demurrer was overruled on June 10, 1955, at which time the defendants Fraser were granted 20 days within which to answer.

On July 29, 1955, the defendants Fraser, by and through their attorneys, Wood, Cooke, & Moulton, served and filed an answer to the plaintiff corporation's complaint in interpleader.

On October 10, 1955, a hearing was had on the motion of the defendants Clark and Owens to strike designated portions of the plaintiff corporation's complaint in interpleader at the conclusion whereof the district judge, ruling that the motion to strike was in the same category as a demurrer, sustained the motion and allowed the plaintiff corporation 15 days within which to serve and file an amended complaint in interpleader.

On October 28, 1955, the plaintiff, Central Montana Stockyards, served and filed its amended complaint in interpleader to which the defendants, Clark and Owens, promptly and on the same day, October 28, 1955, interposed a motion: (1) To strike such amended complaint, (2) to render judgment dismissing plaintiff's said action with prejudice and (3) for an order directing the clerk of the district court to forthwith pay to the movants, Clark and Owens, the sum and amount so deposited by the stockyards corporation with such clerk.

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