Mitchell v. Banking Corporation of Montana

• Decision Date: 21 April 1933
• Docket Number: 7088.
• Citation: 22 P.2d 155,94 Mont. 183
• Parties: MITCHELL et al. v. BANKING CORPORATION OF MONTANA et al.
• Court: Montana Supreme Court

22 P.2d 155

94 Mont. 183

MITCHELL et al. v. BANKING CORPORATION OF MONTANA et al.

No. 7088.

Supreme Court of Montana

April 21, 1933

Appeal from District Court, Lewis & Clark County; Wm. E. Carroll Presiding Judge.

Action by Grace Mitchell and others against the Banking Corporation of Montana, S. F. Tuttle, and others, in which Arthur Tuttle and Lulu T. Wallin, as executor and executrix of the will of S. F. Tuttle, were substituted as defendants after testator's death. From a judgment against defendants executor and executrix, they appeal.

Reversed and remanded.

Howard A. Johnson, of Butte, for appellants.

C. E Pew, of Helena, for respondents.

ANGSTMAN Justice.

This appeal is by Arthur Tuttle and Lulu T. Wallin, as executor and executrix of the estate of S. F. Tuttle, from the judgment entered by the court on the stockholders' liability in defendant insolvent bank. The judgment is the same as entered in the companion case No. 7015, 22 P.2d 175 this day decided; but this appeal presents questions affecting these appellants only.

S. F. Tuttle was orginally named as a defendant. He appeared by filing a demurrer. He died on October 23, 1927, and these appellants were subsequently appointed executor and executrix, respectively, of his estate. After the death of Tuttle the attorneys who had represented him during his lifetime filed an answer in his name. Thereafter, on November 15, 1930, these attorneys filed in the office of the clerk of the district court their withdrawal, stating as the reason therefor that S. F. Tuttle "is now deceased." The executor and executrix published notice to creditors requiring the presentation of claims on or before October 3, 1928. None was ever presented for the stockholders' liability.

On April 28, 1930, the district court of Jefferson county wherein the estate of Tuttle was probated, entered a decree distributing the estate of S. F. Tuttle to Arthur Tuttle and Lulu T. Wallin, as trustees for Derinda J. Tuttle, the widow of the deceased, for life, and the remainder upon her death to eight children. At that time the executor and executrix had $5,104.75 in cash, and other personal and real property of the aggregate value of $2,000.

On September 9, 1930, plaintiffs filed a motion for the substitution of appellants as administrators in this action. The motion was not served upon them, nor were they given notice of it. It was never brought on for hearing. The trial of this action was commenced on November 17, 1930, and was continued, with interruptions, until September 10, 1931, when the cause was finally submitted. These appellants were not represented by counsel in the trial and did not participate therein.

On October 22, 1931, plaintiffs filed another motion to substitute appellants as executor and executrix, respectively, and as trustees of the distributees of the estate of S. F. Tuttle. This motion was supported by an affidavit showing that appellants had not been discharged as executor and executrix, and that they held the title to the property as trustees. This motion was noticed for hearing on November 7, 1931, and notice served upon appellants on November 2d. Upon the hearing on the motion plaintiffs introduced in evidence all of the proceedings in the probate court, and showed that no claim had been presented to the executor and executrix by these plaintiffs or by anyone else for them.

On March 9, 1932, the court made an order substituting the appellants as defendants, as executor and executrix, but denying the substitution as trustees. Appellants duly excepted to the order. Thereafter, and on March 21, 1932 judgment was rendered in favor of plaintiffs and...