Smith v. Foss

• Decision Date: 20 July 1978
• Docket Number: No. 13878,13878
• Citation: Smith v. Foss, 177 Mont. 443, 582 P.2d 329 (Mont. 1978)
• Parties: M. V. Si SMITH, Plaintiff and Respondent, v. Sam T. FOSS and Alice I. Foss, Defendants and Appellants.
• Court: Montana Supreme Court

Page 329

582 P.2d 329

177 Mont. 443

M. V. Si SMITH, Plaintiff and Respondent, v.Sam T. FOSS and Alice I. Foss, Defendants and Appellants.

No. 13878.

Supreme Court of Montana.

Submitted June 9, 1978.

Decided July 20, 1978.

Curtis C. Cook, argued, Hamilton, for defendants and appellants.

Harold L. Holt, argued, Missoula, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant appeals from an order of the District Court, Ravalli County, entered on April 8, 1977.In this order the court"clarified" its earlier order of October 6, 1975, regarding the testing procedure to be used to determine the organic content of peat material.

Plaintiff in the present suit is M. V. "Si" Smith and defendants are Sam T. and Alice I. Foss, husband and wife, and their son, John.In 1968, this Court held that Smith's lessor was entitled to extract peat from Foss's property and to the use of surface lands reasonably necessary or incidental to the extraction of peat.State ex rel. Foss v. District Court(1968), 152 Mont. 73, 446 P.2d 707.

Peat basically consists of organic material, minerals (reduced to ash when tested), and water.Because the water content of peat can be easily changed (e. g. by flooding or drying), the percentages of organic material and ash can vary drastically.

Smith filed this present suit in September, 1972, alleging that the Fosses deliberately flooded the peat deposits and access thereto, which prevented Smith from selling any peat.He sought actual and exemplary damages.In November, 1974, the District Court entered findings of fact and conclusions of law finding that the Fosses had deliberately and maliciously prevented Smith from harvesting and selling peat.The District Court awarded Smith both actual and exemplary damages.Judgment was entered accordingly.

In its findings and conclusions, the court determined that Smith was entitled to harvest peat which was "sixty (60) percent or more organic material as determined by a heat or ignition test."(Finding No. XI, ConclusionNo. 3, Nov. 19, 1974).This determination resulted in further controversy between the parties.

The new controversy surrounded the testing procedure to be used to determine the organic content of peat.The October 6, 1975 order was an attempt to end this controversy.In that order, the court specified that the testing procedure to be used was the "ignition method for testing 'peat' as set forth in the Official Methods of Analysis of the Association of Official Analytical Chemists, (AOAC), 11th Edition, 1970."The court adopted this testing procedure because the parties had agreed to use this testing method.

However, this order did not end the controversy between the parties.Controversy arose then as to whether the court's order meant that the samples were to be tested "air dried" or "as received"(not allowing for moisture evaporation).Using the "air dried" method, the samples tested averaged well above 60 percent organic matter.Using the "as received" method, none of the samples were above 60 percent.

As a result of this further controversy, Smith, on May 4, 1976, moved the District Court to amend its order of October 6, 1975, to specify that the testing should be conducted on air-dried samples.On April 8, 1977, the court entered an order finding that its earlier order of October 6, 1975, was ambiguous and that the time limitations of Rules 59and60, M.R.Civ.P., did not apply to this proceeding.The court then "clarified" its earlier order by specifying that the samples should be air-dried prior to testing.Thereafter, defendants brought this appeal.

On appeal, defendants have raised four issues which may be summarized into one: Whether plaintiff's motion to amend, filed on May 4, 1976, was barred by the time limits in Rules 59and60, M.R.Civ.P., which would deprive the District Court of jurisdiction to amend the October 6, 1975 order?

Defendants' position is that the District Court's order of April 7, 1977, amended the October 6, 1975 order.They argue that this was an impermissible amendment because plaintiff did not move to amend within the time limits of Rule 59, M.R.Civ.P.Further, they argue that plaintiff's motion was not timely under Rule 60, which deals with vacating judgments.Defendants maintain that since the October 6, 1975 order was a final order the time limits in the rules must be adhered to be in order to put an end to litigation.

On the other hand, plaintiff argues that the October 6, 1975 order was an interlocutory order that simply decided the testing procedure to be used.He argues that, since it was an interlocutory order, the time limits in Rules 59and60, M.R.Civ.P., have no application.Further, he argues that the court had the authority to clarify any ambiguity in the October 6, 1975 order.He contends that the April 7, 1977 order clarified the ambiguity in the October 6, 1975 order.

We hold that the District Court's order of October 6, 1975 was an interlocutory order.In that order, all the court did was approve the testing procedure the parties had agreed upon.The court was not making any final determination of the dispute between the parties because it had done so in the judgment of November, 1974.

In the judgment, the court had said that plaintiff " * * *...