State ex rel. Chicago, M., St. P. & P. R. Co. v. District Court of Fifth Judicial Dist. in and for Madison County

• Decision Date: 06 November 1937
• Docket Number: 7751.
• Citation: 73 P.2d 204,105 Mont. 396
• Parties: STATE ex rel. CHICAGO, M., ST. P. & P. R. CO. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY et al.
• Court: Montana Supreme Court

73 P.2d 204

105 Mont. 396

STATE ex rel. CHICAGO, M., ST. P. & P. R. CO. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY et al.

No. 7751.

Supreme Court of Montana

November 6, 1937

Original application.

Application by the State of Montana, on the relation of the Chicago Milwaukee, St. Paul & Pacific Railroad Company, for a writ of supervisory control to direct the District Court of the Fifth Judicial District, in and for the County of Madison, and the Honorable Henry G. Rodgers, Judge thereof, to permit the filing of an amended answer in a case therein pending.

Writ of supervisory control issued.

Murphy & Whitlock and Edmund T. Fritz, all of Missoula, for relator.

Geo. W Howard, of Butte, for respondent.

STEWART Justice.

This is an application for a writ of supervisory control to direct the district court of Madison county to permit the filing of an amended answer in a case therein pending.

The action is one in which plaintiff seeks to recover damages from the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, relator herein, for alleged personal injuries and medical care, in the treatment of the injuries. It was commenced in the respondent court on July 2, 1936. Thereafter, on October 9, 1936, defendant answered the complaint. In its answer it denied generally the allegations of the complaint regarding the alleged injuries, admitted that it owned and operated the train and railroad equipment involved in plaintiff's injuries, and affirmatively alleged that on June 29, 1935, defendant filed a petition in bankruptcy in a United States District Court of Illinois, and that by order of that court the defendant "was and now is authorized and empowered among other things, to defend any claim, demand or cause of action, whether or not suit or other proceedings to enforce the same had been brought in any court or tribunal." Reply was filed denying that the bankruptcy proceedings had any effect on plaintiff's complaint or proceedings for reducing the same to judgment. Thereafter, on August 20, 1937, the cause was set for trial before a jury for October 25, 1937. On September 8, 1937 defendant gave notice of its desire to file an amended answer, and at the same time served a copy of the proposed amended answer upon plaintiff's counsel.

The proposed answer differs from the original answer in that the original admitted that defendant owned and operated the train, railroad equipment, and properties involved in plaintiff's alleged injuries whereas the proposed amended answer denies those facts and affirmatively alleges that, by virtue of the proceedings in bankruptcy and the appointment and qualification of trustees in bankruptcy and the orders of the bankruptcy court, the trustees were the sole owners and operators of the railroad at the time of the alleged injuries, and that the railroad company was not at any of the times mentioned in plaintiff's complaint the owner or operator of the railroad or any of the properties mentioned, nor in any manner in possession, control, or authority over the same, or any part thereof. On October 7, 1937, defendant requested in writing that the respondent court grant leave to file the amended answer. The application was supported by the affidavit of H. C. Pauly, one of the attorneys for defendant. On October 18 thereafter plaintiff filed written objections, and the matter was on that day submitted to the court.

In the affidavit of Mr. Pauly it is recited that he is a member of the firm of Murphy & Whitlock, who are local attorneys in Montana for the defendant; that at the time he prepared the original answer he had not been informed of all the proceedings had in the bankruptcy matter, and had received no advice or information relative to the proper parties defendant to such an action in the light of the bankruptcy proceedings, and accordingly he prepared the original answer on the merits for the railroad company which he then assumed and believed in good faith to be the proper procedure. That...