Monteath v. Monteath

• Decision Date: 19 April 1935
• Docket Number: 7377.
• Citation: 44 P.2d 517,99 Mont. 444
• Parties: MONTEATH et ux. v. MONTEATH.
• Court: Montana Supreme Court

44 P.2d 517

99 Mont. 444

MONTEATH et ux. v. MONTEATH.

No. 7377.

Supreme Court of Montana

April 19, 1935

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Action by James H. Monteath and wife against Uldene V. Monteath individually and as executrix of the will of James S Monteath, deceased. From an amended judgment which, in addition to granting relief to plaintiffs, granted certain relief on a cross-complaint, plaintiffs appeal.

Remanded with directions.

Gerald S. Frary, of Cut Bank, and W. D. Kyle, of Butte, for appellants.

Horace W. Judson, of Cut Bank, for respondent.

ANDERSON Justice.

This is an appeal from an amended judgment made and entered after a motion and hearing thereon, pursuant to notice given by the moving party. The record before us consists of the bill of exceptions settled after entry of the amended judgment containing the findings of fact, conclusions of law, original judgment, notice of motion, and motion to amend, together with the amended judgment. Although the motion was based upon the "records and files" in the action, none of the pleadings are incorporated in the bill of exceptions.

Defendants have filed with their brief in this court a copy of their answer and cross-complaint, certified to by the clerk of the district court. On oral argument counsel for plaintiffs consented to our examining this document and considering the same as though it was a part of the record on the appeal.

It is recited in the bill of exceptions that no notice of motion for a new trial was given or motion for new trial made; nor was any bill of exceptions ever served or filed, including any of the proceedings on the trial of the case, and that no appeal was ever perfected to this court from the original judgment entered subsequent to the trial of the cause.

Heretofore it was attempted to secure a review of the same proceeding by this court on a writ of review. State ex rel. Monteath v. District Court, 97 Mont. 530, 37 P.2d 567. We there decided that plaintiffs had a remedy by appeal to review the order made after final judgment, and accordingly that proceeding was dismissed; thereupon this appeal was perfected, again seeking a review of the same proceeding.

The action, as disclosed by the findings of fact and conclusions of law, was one for an accounting and settlement of the affairs of a partnership theretofore engaged in conducting a hotel at Glacier Park station. The partnership was composed of James H. Monteath and Sadie L. Monteath, husband and wife, and James S. Monteath, their son. Prior to March 1, 1926, Monteath, Sr., and wife had established and were operating this hotel, which they owned. On that date the son entered into the partnership arrangement with his parents. He contributed as capital $1,400; his parents the use of the hotel building and the personal property used in its operation, they retaining the title to all this property. The respective shares of the partners in the profits and losses were one-half to the son and one-half to his parents. The partnership terminated on August 31, 1932, by the death of the son. His widow was appointed executrix of his will. The plaintiffs, the father and mother, brought this action against the surviving widow of their son, as executrix and individually.

The court found, in addition to the facts already stated, that the books of the partnership had been audited, and disclosed that the father was credited to his personal account on the books with the following items: Pension money received from the United States government, $3,945.33; salary as county commissioner of Glacier county, $2,467.91; rents from property other than the hotel property, dividends on shares of stock, payments on a note, and receipts from sources other than the business of the partnership, $1,997.95; and plaintiffs' share of the profits of the partnership business in the sum of $7,592.76, making a total of $16,003.95. Also it was found that the audit disclosed that plaintiffs had withdrawn from the partnership the sum of $10,265.32, leaving a credit balance on the partnership books in favor of plaintiffs in the sum of $5,738.63. The court found that the son was credited on the partnership books with "sundry personal receipts of $5,316.71 from sources outside the partnership"; that his share of the profits of the partnership business was the sum of $5,649.76. The difference in the profits accruing to the plaintiffs and the son occurs by reason of the son renouncing his right to certain of the profits for the years 1929 and 1930. The son, during those years, was in ill health and unable to devote his time and attention to the affairs of the partnership. The court further found that as a result of the audit the son was credited with a total of $10,966.47 and that he had withdrawn from the partnership the sum of $11,874.25.

The audit disclosed a debit balance in the sum of $1,007.78 as shown by the books. The court found that in arriving at this balance the interest of the son had been charged with one-half of a $3,000 note, or $1,500, which note evidenced a loan made by a daughter to the parents prior to the formation of the partnership, the proceeds of which were used to erect the original unit of the hotel. After the correction of this erroneous charge, the court found that the son had a credit balance of $492.22. It found further that a conveyance of a one-half interest in the hotel and the personal property used therein, made on March 7, 1932, by the plaintiffs to the defendants, was without consideration; also that the plaintiffs had presented a claim to the defendant executrix based on the debit balance of $1,007.78, claimed to be owing to plaintiffs from the estate of their son, which was disallowed, and that this action was commenced within the statutory period for suit on rejected claims against estates of deceased persons. It was likewise found that a note for $1,400, pleaded in the cross-complaint of defendants' answer, signed by the plaintiffs, represented the $1,400 which the son had contributed to the partnership upon becoming a member.

As conclusions of law, the court found that the plaintiffs were the owners and entitled to the possession of the hotel property, that the conveyance of the one-half interest therein to the son and his wife transferred no title and was held for naught, and that plaintiffs were entitled to a decree rescinding the conveyance. The third conclusion was as follows: "That the defendants or either of the defendants are not liable on the Catherine Oke obligation originally amounting to $3,000 for any part or portion thereof, and eliminating the one-half thereof charged in the account of James S. Monteath on the partnership books, leaves the estate of James S. Monteath with a credit balance of $492.22, for which judgment will be entered herein in favor of said estate and against the plaintiffs as the surviving partners of said partnership."

The court further concluded that the plaintiffs did not owe the defendants, or either of them, anything on the $1,400 note set forth in the cross-complaint, and as to the cross- complaint the plaintiffs were entitled to a judgment of dismissal.

The original judgment was entered on February 21, 1934, and conformed to the conclusions of law as to the ownership of the hotel property and the cancellation of the conveyance. It was thereby "further ordered, adjudged and decreed that on August 31, 1932, following the death of said James S Monteath, the books of the partnership of the plaintiffs and said James S. Monteath were audited, and showed plaintiffs credited with a balance of $5,738.63, and the estate of said James S. Monteath, deceased, debited with a balance of $1,007.78, by charging the plaintiffs and said estate each with one-half of the Catherine Oke obligation of $3,000 referred to in the foregoing findings, but eliminating which as a non-partnership liability as found by the court, makes said credit balance of the plaintiffs $7,238.63, and said debit balance of said estate a credit balance of $492.22, but to pay which said balances there is no partnership property, all property acquired during the partnership having been bought with funds of the plaintiffs. Further ordered, adjudged and decreed that the defendant Uldene V. Monteath do not...