State ex rel. Goff v. District Court of First Judicial Dist. In and For Lewis and Clark County

• Decision Date: 23 July 1971
• Docket Number: No. 12059,12059
• Parties: STATE of Montana, ex rel. Charles W. GOFF, Relator, v. The DISTRICT COURT OF the FIRST JUDICIAL DISTRICT of the State of Montana, INAND FOR the COUNTY OF LEWIS AND CLARK, and the Hon. Victor H. Fall, PresidingJudge thereof, Respondents.
• Court: Montana Supreme Court

Page 292

487 P.2d 292

157 Mont. 495

STATE of Montana, ex rel. Charles W. GOFF, Relator, v. The DISTRICT COURT OF the FIRST JUDICIAL DISTRICT of the State of Montana, INAND FOR the COUNTY OF LEWIS AND CLARK, and the Hon. Victor H. Fall PresidingJudge thereof Respondents.

No. 12059.

Supreme Court of Montana.

Submitted April 27, 1971.

Decided July 23, 1971.

Meloy, Kline & Niklas, John R. Kline argued, Helena, for relator.

Small, Cummins & Hatch, Carl A. Hatch argued, Helena, for respondents.

JAMES T. HARRISON, Chief Justice.

Original proceeding. Relator, Charles W. Goff, seeks an appropriate writ to require the respondent district court to vacate its order of March 30, 1971, and then dismiss the complaint and quash the service of summons for lack of jurisdiction.

It appears that on March 2, 1971, Jack G. Holt, Raymond K. Whale and Leslie D. Murdock, hereinafter referred to as plaintiffs, filed an action in the district court of Lewis and Clark County seeking to void a contract made by and between plaintiffs and relator and further seeking the return of a $5,000 payment made by plaintiffs to relator.

Summons was issued by the clerk of Lewis and Clark County district court on March 2, 1971 and served in Salt Lake City, Utah, on March 4, 1971. In March 24, 1971, relator, through his counsel, made a special appearance for purpose of motion to dismiss the complaint and quash the service of summons for lack of jurisdiction, upon the grounds: (1) that relator, a citizen and resident of Utah, was not served with process in Montana and under Rule 4B, M.R.Civ.P., is not subject to the jurisdiction of the district court; (2) that the complaint shows the court has no jurisdiction over either the relator or the subject matter of the complaint; and (3) that under the existing facts the assumption of jurisdiction by a Montana court is prohibited by the Fourteenth Amendment to the United States Constitution. Following a hearing on relator's motion, the court ordered that the motion to quash service and to dismiss be denied and relator was granted 20 days to plead to the complaint.

Relator contends the district court committed manifest error in so ruling and that no direct appeal lies from the order; that if he pleads further he will be in danger of submitting himself to jurisdiction; and, that under any circumstances the remedy of appeal is inadequate as it would have to await the outcome of a trial on the merits. In this situation relator seeks the issuance of an appropriate writ to require the district court to vacate its order and dismiss the complaint and quash service of the summons.

Following ex parte presentation to this Court by counsel for the relator, an order to show cause was issued returnable on April 27, 1971. The respondents, through counsel, filed an answer and return thereto and the matter was orally argued before the Court and submitted.

Supplementary to his special appearance relator submitted to the Court affidavits of relator and one John G. Marshall, his Utah counsel. We refer to these documents to ascertain the fact situation as contended on behalf of relator. His affidavit states: He held a membership in the Philadelphia-Baltimore-Washington Stock Exchange which he desired to sell in November 1970. during that month Leslie D. Murdock, one of the plaintiffs in the district court action, came to Salt Lake City and was introduced to relator by Barry Gardner, an employee of an accounting firm in Salt Lake City, which firm was not agent, employee, representative, or under control of relator. Murdock discussed with relator the possibility of purchasing the stock exchange membership. Later in the month, around Thanksgiving time, Murdock, together with his attorney, came to Salt Lake City and met with Gardner, relator and his attorney, John G. Marshall, in relator's office. At that time relator informed Murdock the rules of the stock exchange required that membership could not be sold for less than a price established from time to time by the exchange and the minimum price at that time was $16,500. Murdock indicated his firm, Holt, Murdock and Whale, Inc., did not have sufficient cash to pay the full purchase price in cash; inquiry was made with the stock exchange and the parties agreed the membership would be purchased by the plaintiffs, as individuals, for the sum of $16,500, payable $5,000 down, and the balance on or before March 7, 1971. Thereupon Murdock delivered to relator the sum of $5,000, the down payment. The parties further agreed that relator would retain a purchase money mortgage lien upon the membership. Thereupon relator's attorney prepared a written contract of sale, which was forwarded by relator to plaintiffs at Helena, Montana, through the United States mail. Thereafter certain changes in the written contract were made and it was returned to relator by United States mail. (Photostatic copy of the signed contract is an exhibit before us and no changes are evidenced...