Daniels v. Paddock

• Decision Date: 19 March 1965
• Docket Number: No. 10770,10770
• Citation: 145 Mont. 207,399 P.2d 740
• Parties: Clarence S. DANIELS, Plaintiff and Respondent, v. Donald A. PADDOCK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 740

399 P.2d 740

145 Mont. 207

Clarence S. DANIELS, Plaintiff and Respondent, v. Donald A. PADDOCK, Defendant and Appellant.

No. 10770.

Supreme Court of Montana.

Submitted Jan. 12, 1965.

Decided March 3, 1965.

Rehearing Denied March 19, 1965.

Vernon Hoven (argued), Missoula, John W. Bonner, Helena, for appellant.

Robert Skelton, Thomas P. Hendricks (argued), Skelton & Hendricks, Missoula, for respondent.

JAMES T. HARRISON, Chief Justice.

This is an appeal from a judgment entered in the district court of Missoula County following the granting of a motion for summary judgment.

In his complaint, plaintiff alleged that defendant had in his possession money collected by him as attorney for the plaintiff, the property of the plaintiff, in the sum of $15,304.39; that defendant was entitled to retain the sum of $4,758.35 for reimbursement of funds paid by defendant on behalf of plaintiff and plaintiff was entitled to the immediate payment of the remainder of $10,546.04; that defendant on or about September 1, 1958, converted the remainder to his own use and failed to notify plaintiff that he had collected the money; that such sum was due and owing to plaintiff, with interest from September 1, 1958, plus additional damages as provided by law. Plaintiff prayed for judgment in that amount, together with interest, trebled as provided by law, and for his costs.

Defendant appeared by motion to dismiss on the ground the complaint failed to state a claim on which relief could be granted; the motion was denied and defendant given 20 days to answer. Defendant answered, alleging that he had no information as to the allegations of the complaint sufficient to form a belief as to the veracity of the same and therefore denied the same, praying that plaintiff take nothing and that defendant have his costs. The answer was served by mail on October 3, 1963, filed on October 7, 1963.

On October 7, 1963, a request for admissions was served upon counsel for the defendant by counsel for the plaintiff. No admissions were received and on October 29, 1963, a motion for summary judgment was served upon defendant by the plaintiff, to be heard on November 13, 1963. Such hearing was thereafter continued to November 18, 1963, and notice given defendant's counsel. On November 18, 1963, plaintiff and his counsel appeared before the court but there was no appearance by nor on behalf of the defendant.

At this hearing, the probate file in the Matter of the Estate of Charles H. Daniels, Deceased, a file of the court, was introduced. The plaintiff was sworn and testified as to the employment of defendant in the estate matter and that the sum of $10,546.04 was due him after all the other heirs had been paid. Randolph Jacobs was sworn and testified that the defendant had brought him an assignment of a contract which was in escrow at the First State Bank at Thompson Falls; about certain correspondence with that bank and receipt of check for $15,304.39 of which $13,051.61 had been applied on defendant's notes and a cashier's check sent to the Western Montana Bank for $2,252.78 for defendant's account. Plaintiff moved the court for a summary judgment based on the complaint, the answer, the interrogatories, the admissions thereof by failing to answer, and upon the evidence introduced. The court at that time took the matter under advisement.

The request for admissions deemed admitted by failure to answer as provided in Rule 36 M.R.Civ.P., discloses that defendant is an attorney at law, that since January 4, 1957, defendant was attorney for the Estate of Charles H. Daniels, Deceased, of which estate plaintiff was executor; that on January 4, 1957, the assets of the estate exceeded $18,000 which included a balance due under a contract with J. H. Murphy and Bev Murphy; that prior to January 4, 1957, all liabilities and expenses of administation of the estate, including claims and attorney's fees, had been paid, except the claims of the contesting heirs which had been compromised and settled at the sum of $7,500; that plaintiff is the residuary legatee under the will and entitled to all property of the estate after payment of expenses and the compromise settlement; that on or about September 1, 1958, the final payment on the Murphy contract was paid to the First National Bank of Missoula, Montana, in the sum of $15,304.39 and was credited to the personal obligations of defendant at his direction; that the sum of $4,758.35 was paid by defendant to the contesting heirs, said sum being the balance then remaining on the compromise settlement and that no other sums have been paid by defendant for or on behalf of said estate or plaintiff; and that on or about August 2, 1963, demand was made of defendant to account for the assets and proceeds of the said estate but the defendant failed to account for the same.

On November 27, 1963, defendant filed a motion to reopen hearing on summary judgment and noticed the same for hearing. At the same time, defendant filed his admissions which were signed by his attorney and the verification states that the admissions made in answer are made from a letter received from the defendant.

The motion to reopen the hearing was argued before the court on November 27, 1963. On December 4, 1963, an affidavit of defendant's counsel was filed which requested that defendant be permitted to respond to the request for admissions in accordance with the admissions of defendant then on file.

On December 5, 1963, a summary judgment was granted by the court. Defendant's motion to reopen the hearing was denied on December 17, 1963.

On December 19, 1963, defendant filed a notice of motion and motion for new trial. On the same day defendant filed a notice of motion and motion to amend judgment. The presiding judge was disqualified, as well as a second judge, and the Honorable Victor H. Fall of Helena was called in and accepted jurisdiction. Judge Fall stayed proceedings pending disposition of the motions. On January 17, 1964, the minutes of the court show that Judge Fall heard arguments upon the respective motions and then reopened the matter and set the hearing to commence on January 27, 1964. On January 21, 1964, to effectuate his action on January 17, 1964, Judge Fall issued an order to show cause, directed to the defendant, requiring him to appear and show cause, if any he had, why the summary judgment of December 5, 1963, should not remain in full force and effect.

On January 27, 1964, the parties appeared before the court and the following transpired:

'THE COURT: Very well, this is the time set in cause No. 26699, CLARENCE S. DANIELS vs. DONALD A. PADDOCK.

'Is the plaintiff ready to proceed?

'MR. SKELTON: Yes, your Honor.

'MR. HOVEN: Yes, your Honor.

'THE COURT: The record will show that after assuming jurisdiction in this matter I appeared on January 17th at which time I ruled that the judgment heretofore made and entered by Judge Green would be opened up for further testimony and set for further hearing this morning at 9:30 o'clock.

'It is the position of the Court, Gentlemen, that based upon the record heretofore made in this case, and upon the Judgment entered by Judge Green, the Answer and the Admissions filed by the defendant, the allegations of the plaintiff's Complaint that we can proceed at this time as though a prima facie case has been made by the plaintiff to this extent: That it is proven to this Court satisfactorily that there was a balance due, there was a sum of $10,900 in the Daniels' estate, but that sum was paid to the defendant, Paddock; that he did not pay it over to the plaintiff here.

'Now, that is the only assumption the Court makes in this case, and we are here today to find out why or if there was any obligation to do so, and as I read and understand the affidavit filed on behalf of the defendant, he states that he was under no obligation to pay that sum or any other sum over to the plaintiff, Clarence S. Daniels, by reason of a certain document or documents or agreement or whatever it may be, and that's what I am here today for, Gentlemen, do I make myself clear?

'MR. HOVEN: Yes.

'THE COURT: Is the defendant ready too with that understanding?

'MR. HOVEN: We are, your Honor.

'THE COURT: Is there any exception?

'MR. HOVEN: We accept that and make no exception to the Court's ruling.'

Following the hearing, an order was entered on February 10 and filed on February 11, 1964, which denied the defendant's motion to amend judgment and motion for new trial, vacated the order staying proceedings and adjudged the summary judgment entered on December 5, 1963, to be in full force and effect. This appeal was taken by defendant on February 14, 1964.

Defendant specifies error by the court in (1) granting the motion for summary judgment; (2) in not permitting the defendant to file his admissions and to reopen hearing on summary judgment; (3) in refusing to grant a new trial; (4) in refusing to amend the judgment; and (5) in not entering judgment for the defendant.

As to the first specification it is argued by defendant that under Rule 56(c), M.R.Civ.P., that the court is limited to the pleadings, depositions and admissions on file in determining that there is no genuine issue as to any material fact, and when witnesses are sworn and testimony produced and used by the court in its consideration and determination of the motion, such procedure is not permitted.

In this connection we call attention to Rule 43(e), M.R.Civ.P., which provides:

'(e) Evidence on Motions. Except as otherwise provided in Rule 56, when a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.'

The exception noted in connection with Rule 56 is the provision against the use of affidavits to show facts not appearing of record on a motion for...