Kelly v. Harris

• Decision Date: 20 January 1958
• Docket Number: Civ. A. No. 1875.
• Citation: 158 F. Supp. 243
• Parties: R. F. KELLY, Plaintiff, v. Lee HARRIS, Defendant.
• Court: U.S. District Court — District of Montana

158 F. Supp. 243

R. F. KELLY, Plaintiff, v. Lee HARRIS, Defendant.

Civ. A. No. 1875.

United States District Court D. Montana, Great Falls Division.

January 20, 1958.

COPYRIGHT MATERIAL OMITTED

L. R. Bretz, Great Falls, Mont., for plaintiff.

Doyle & Francisco, Conrad, Mont., for defendant.

JAMESON, District Judge.

On July 24, 1957, plaintiff filed a request for admission of facts, directed to "Frisbee & Moore, Attorneys for Defendant", Cut Bank, Montana. On June 20, 1957, defendant had filed a praecipe for the entry of Doyle and Francisco of Conrad, Montana as attorneys for the defendant, reciting that Frisbee & Moore had withdrawn and were no longer attorneys for the defendant. On August 9, 1957, Doyle & Francisco, as attorneys for the defendant, filed answers to plaintiff's request, six days after the ten days prescribed for answer by Rule 36 of the Federal Rules of Civil Procedure, 28 U.S. C.A.

On September 10, 1957, plaintiff filed a motion to strike the defendant's answers for failure to comply with the provisions of Rule 36 and for summary judgment. On September 6th, defendant filed a motion for summary judgment, upon the ground of res judicata, in that the subject matter of this action had been litigated in the District Court of Pondera County, Montana, wherein a judgment of dismissal with prejudice had been entered. Briefs were filed by counsel for the respective parties and oral arguments were presented on all motions on January 6, 1958.

The praecipe for withdrawal of Frisbee and Moore and entry of Doyle and Francisco as attorneys for defendant was not served upon plaintiff's counsel, but defendant's brief recites that on or about June 26, 1957, Howard T. Francisco, one of defendant's attorneys, personally called plaintiff's attorney on the telephone and advised plaintiff's attorney that Doyle and Francisco were the attorneys of record for the defendant and discussed the case with plaintiff's attorney. It is recited further in defendant's brief that the defendant was not notified of the service and did not receive the request for admission of facts until August 2, 1957, whereupon he saw his new attorneys, Doyle and Francisco.

No service of request for admissions was made upon Doyle and Francisco, who were then the attorneys of record. The answers were filed seven days after the request was delivered to defendant and by him to his counsel. Regardless of the fact that the praecipe for entry of new counsel was not served upon counsel for plaintiff, there is no evidence of lack of good faith on the part of the defendant.

In the case of Hopsdal v. Loewenstein, D.C.N.D.Ill.E.D.1945, 7 F.R.D. 263, 264, the defendant's counsel was on vacation at the time of service of request for admissions, but due diligence in answering the request was pursued upon his return, The court there held that even though the answer had not been filed within the time allowed by Rule 36, "the court may, in its discretion, deny a motion to strike such answer, there appearing to be no indication of lack of good faith on the part of the responding party and no prejudice caused to the moving party." See also, Countee v. United States, 7 Cir., 1940, 112 F.2d 447.

Here the answers were actually filed within ten days after defendant and his counsel of record had notice or knowledge of the request. The counsel upon whom service was made had been withdrawn of record and plaintiff's counsel had been advised informally of the substitution of new counsel. Under these circumstances, defendant cannot be prejudiced by the misdirection of the request for admissions. Plaintiff's motions to strike and for summary judgment are denied.

Defendant's motion for summary judgment is based upon the pleadings in this action, the affidavit of Howard T. Francisco, one of defendant's attorneys, and certified copies of the pleadings, court minutes and judgment in Civil Action No. 6560, in the District Court of Pondera County, Montana, R. F. Kelly, Plaintiff vs. Lee Harris, Defendant. The complaint in this action alleges the same cause of action as the complaint in the action in state court. The minutes of the District Court of Pondera County, Montana for January 11, 1956, contain the following recital, with reference to Civil Action No. 6560, R. F. Kelly vs. Lee Harris:

"The above entitled action was called for trial, the defendant appearing in person and by attorney D. W. Doyle, the plaintiff not appearing either in person or by attorney.

"Motion made by attorney D. W. Doyle to have the case dismissed, with prejudice, on its merits. Motion granted by the Court."

On July 17, 1956, a judgment was entered reading as follows:

"Whereas, the above entitled action, was, by the Court set for trial before a jury for January 11, 1956, at the hour of 9:30 A.M., in the above entitled Court and Notice thereof was duly given to the plaintiff, and

"Whereas, on January 11, 1956, said action was duly called for trial, and the defendant and his attorneys being present answered that the defendant was ready for trial, and the plaintiff, either in person or by attorney having failed to appear for trial, the defendant moved the Court for an Order dismissing said action with prejudice, whereupon the Court granted the defendant's Motion to dismiss said action with prejudice.

"Now, therefore, it is hereby ordered, and adjudged, that the above entitled action be and it is hereby dismissed, with prejudice on its merits nunc pro tunc as of January 11, 1956."

Defendant contends that this action is barred (1) by the order of dismissal recorded in the court minutes of January 11, 1956, and (2) by the nunc pro tunc judgment entered July 17, 1956. Plaintiff argues (1) that the minute entry of January 11, 1956 was not in itself a judgment; (2) that a party cannot rely upon a judgment entered more than 6 months after the decision; and (3) that the nunc pro tunc judgment is of no force and effect.

Section 93-4705, R.C.M.1947, provides that an action may be dismissed

"* * * 3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal; * * *

"6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months;"

A judgment is a final determination of the rights of the parties. Section 93-4701, R.C.M.1947. An order dismissing an action is a final judgment from which an appeal can be perfected. If the "order" has the effect of finally determining the rights of the parties, it is a "judgment". State ex rel. Meyer v. District Court, 1936, 102 Mont. 222, 57 P.2d 778; State ex rel. Walker v. Board of Commissioners of Flathead County, 1947, 120 Mont. 413, 187 P.2d 1013. In each of these cases, however, a formal order was signed and entered. Counsel for plaintiff contends that a minute entry does not have the same effect, relying upon Pentz v. Corscadden, 1914, 49 Mont. 581, 144 P. 157, where the court held that a minute entry of an order sustaining a demurrer was not a judgment and not an appealable order.

The California court has held under a statute similar to Section 93-4705 (Cal. Code Civ.Proc. 581) and related statutes, that "the order of dismissal is the judgment in the case and becomes effective for all purposes when entered upon the minutes of the court", and that "the minute order was the real judgment and the subsequent formal judgment was but a memorial or a record thereof". Southern Pacific Railroad Co. v. Willett, 1932, 216 Cal. 387, 14 P.2d 526; E. Clemens Horst Co. v. Federal Mutual Liability Insurance Company, 1937, 22 Cal.App.2d 548, 71 P.2d 599, and cases there cited.

Defendant contends that Pentz v. Corscadden is distinguishable, but if not, that it was overruled by the subsequent Montana cases of State ex rel. Meyer v. District Court and State ex rel. Walker v. Board of Commissioners of Flathead County, supra. These cases are not precisely in point since formal written orders were entered. Here in open court the court granted defendant's "motion to have the case dismissed with prejudice, on its merits", and this action was recorded by the clerk in the court minutes. It seems probable that in line with the California decision, the Montana court would hold this a judgment. Regardless of whether the order so entered in the minutes is a judgment, in my opinion this action is barred by the judgment subsequently entered.

Counsel for plaintiff argues that a party who has failed to enter a judgment within six months after a decision, cannot enter it after the expiration of that period and rely upon it as a bar to a new action. In support of this contention, counsel relies upon Sec. 93-4705 (6), R.C.M.1947, supra, and State ex rel. Kohl v. District Court, 46 Mont. 348, 128...