Kinion v. Design Systems, Inc., 80-202
| Decision Date | 24 December 1980 |
| Docket Number | No. 80-202,80-202 |
| Citation | 620 P.2d 852,190 Mont. 226 |
| Parties | Richard KINION, Plaintiff and Appellant, v. DESIGN SYSTEMS, INC., A Montana Corporation, Ted T. Topolski, Bill Childers, Larry Dauenhauer, Defendants, and Security Trust and Savings Bank, Defendant and Respondent. |
| Court | Montana Supreme Court |
C. L. Overfelt, argued, Great Falls, for plaintiff and appellant.
Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Ronald R. Lodders, argued, Billings, for defendant and respondent.
Plaintiff Richard Kinion brought a breach of contract action against defendant Design Systems, Inc., the Security Trust and Savings Bank (Security Bank), and several others in July 1978. A default judgment was entered against defendants Design Systems, Inc. (Design) and Security Bank by the Cascade County District Court on December 27, 1978. Security Bank moved to set aside the default judgment on March 10, 1980. Juge Coder entered an order setting aside the default judgment on March 27, 1980. Richard Kinion timely filed a notice of appeal from the District Court order and on June 3, 1980, filed an application for a writ of supervisory control.
We hold that the District Court order is interlocutory and nonappealable and that the present case is inappropriate for the exercise of supervisory control.
In Shields v. Pirkle Refrigerated Freightlines (1979), Mont., 591 P.2d 1120, 36 St.Rep. 472, we specifically held that an order vacating a default judgment is only appealable as a final judgment under Rule 1, M.R.App.Civ.P., if the result of the order is to finally dispose of the case. In the present case the order vacating the default judgment left the case pending in the Cascade County District Court for a trial on the merits. As a result, no final judgment was entered, the District Court order was interlocutory and the appeal is not properly before this Court.
Kinion's application for a writ of supervisory control was filed to allow this Court a means of granting him relief in the event we determined, as we have, that this case is nonappealable. He asserts that the issuance of a writ of supervisory control in the present case would be proper since the alternative remedy, a trial on the merits, is wholly inadequate. Plaintiff further asserts that a writ should issue to prevent needless litigation.
A similar issue was presented in Fitzgerald v. Aetna Ins. Co., (1978), 176 Mont. 186, 577 P.2d 370. In that case, Aetna appealed from a District Court order which granted the plaintiff a partial summary judgment. Aetna also sought a writ of supervisory control with regard to a District Court order denying a motion to strike two counts of plaintiff's...
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Roberts v. Empire Fire and Marine Ins. Co.
...Empire relies on Shields v. Pirkle Refrigerated Freightlines (1979), 181 Mont. 37, 591 P.2d 1120, and Kinion v. Design Systems, Inc., (1980), 190 Mont. 226, 620 P.2d 852. In Shields we In all this long history, the appealability of orders granting motions to set aside default judgments has ......