H. Earl Clack Co. v. Oltesvig, No. 7636.

Docket NºNo. 7636.
Citation104 Mont. 255
Case DateFebruary 12, 1937
CourtUnited States State Supreme Court of Montana

104 Mont. 255

H. EARL CLACK CO.
v.
OLTESVIG et ux.

No. 7636.

Supreme Court of Montana.

Feb. 12, 1937.1


Appeal from Twelfth Court, Hill County; C. B. Elwell, Judge.

Action by the H. Earl Clack Company, a corporation, against Theodore Oltesvig and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.


Jess L. Angstman, of Havre, and Freeman, Thelen & Freeman, of Great Falls, for appellants.

Max P. Kuhr, of Havre, for respondent.


RALPH L. ARNOLD, District Judge (sitting in place of SANDS, C. J., disqualified).

The plaintiff recovered a judgment against the defendants in a foreclosure action on lands located in Hill county. The defendants set up an affirmative defense that the note and mortgage upon which the action was based arose out of a wagering transaction involving dealings in the grain market at Minneapolis.

The respondent filed a motion in this court to strike the bill of exceptions from the transcript on appeal for the reason that the trial court did not settle the bill within the time allowed by law and the additional period of sixty days granted. The record shows that the bill of exceptions was served and filed four days after the expiration of the additional time granted by the trial court. The motion to strike was well founded in view of the ruling of this court in the case of O'Donnell v. City of Butte, 72 Mont. 449, 235 P. 707. However, because the judgment must be affirmed upon the merits, we need devote no more attention to the motion.

The findings of fact of the trial court were to the effect that the defendant Theodore Oltesvig bought and sold December and May wheat upon the Minneapolis Chamber of Commerce and deposited with the plaintiff various sums, totaling $11,000, to be applied by the plaintiff, on behalf of the defendant, as margins in such sales; and that there was no mutual agreement or understanding by and between the parties to such purchase and sale of wheat for future delivery that there should be no delivery of such wheat or that settlement of such transactions should be made solely upon the basis of the difference in prices on the day of purchase and on the day of sale. The court further found that if it was the intention of the defendant merely to speculate in wheat and make settlement for his gains or losses based upon the difference in the price of wheat upon the dates of the several transactions, such intention was not communicated to the other party. Other findings were to the effect that the defendants...

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8 practice notes
  • Hart v. Honrud, No. 9409
    • United States
    • Montana United States State Supreme Court of Montana
    • March 11, 1957
    ...76, 80 P.2d 370; Dalbey v. Equitable Lefe Assurance Society of United States, 105 Mont. 587, 74 P.2d 432; H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586; Missoula Light & Water Co. v. Hughes, Page 332 106 Mont. 355, 77 P.2d 1041; Sanders v. Lucas, 111 Mont. 599, 111 P.2d 1041, 10......
  • Hutchinson v. Burton, No. 9117
    • United States
    • Montana United States State Supreme Court of Montana
    • September 20, 1952
    ...supported by many authorities, and in our opinion leaves no ground for a different conclusion. See, also, H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586. We think it would needlessly encumber the reports to recount authorities in support of the rule when there is no reasonable gr......
  • Lake v. Webber, No. 8757.
    • United States
    • Montana United States State Supreme Court of Montana
    • January 14, 1948
    ...107 Mont. 76, 80 P.2d 370;Dalbey v. Equitable Life Assur. Soc. of United States, 105 Mont. 587, 74 P.2d 432;Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586;Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041), yet we cannot say that the evidence decidedly preponderates again......
  • Hankins v. Waitt, No. 8746.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 13, 1948
    ...80 P.2d 370;Dalbey v. Equitable Life Assurance Society of the United States, 105 Mont. 587, 74 P.2d 432;H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586;Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041), yet we cannot say that the evidence decidedly preponderates a......
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8 cases
  • Hart v. Honrud, No. 9409
    • United States
    • Montana United States State Supreme Court of Montana
    • March 11, 1957
    ...76, 80 P.2d 370; Dalbey v. Equitable Lefe Assurance Society of United States, 105 Mont. 587, 74 P.2d 432; H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586; Missoula Light & Water Co. v. Hughes, Page 332 106 Mont. 355, 77 P.2d 1041; Sanders v. Lucas, 111 Mont. 599, 111 P.2d 1041, 10......
  • Hutchinson v. Burton, No. 9117
    • United States
    • Montana United States State Supreme Court of Montana
    • September 20, 1952
    ...supported by many authorities, and in our opinion leaves no ground for a different conclusion. See, also, H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586. We think it would needlessly encumber the reports to recount authorities in support of the rule when there is no reasonable gr......
  • Lake v. Webber, No. 8757.
    • United States
    • Montana United States State Supreme Court of Montana
    • January 14, 1948
    ...107 Mont. 76, 80 P.2d 370;Dalbey v. Equitable Life Assur. Soc. of United States, 105 Mont. 587, 74 P.2d 432;Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586;Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041), yet we cannot say that the evidence decidedly preponderates again......
  • Hankins v. Waitt, No. 8746.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 13, 1948
    ...80 P.2d 370;Dalbey v. Equitable Life Assurance Society of the United States, 105 Mont. 587, 74 P.2d 432;H. Earl Clack Co. v. Oltesvig, 104 Mont. 255, 68 P.2d 586;Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041), yet we cannot say that the evidence decidedly preponderates a......
  • Request a trial to view additional results

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