State ex rel. Gold Creek Mining Co. v. District Court, Second Judicial Dist. in and for Silver Bow County

• Decision Date: 05 February 1935
• Docket Number: 7406.
• Citation: 43 P.2d 249,99 Mont. 33
• Parties: STATE ex rel. GOLD CREEK MINING CO. v. DISTRICT COURT, SECOND JUDICIAL DIST., IN AND FOR SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

43 P.2d 249

99 Mont. 33

STATE ex rel. GOLD CREEK MINING CO. v. DISTRICT COURT, SECOND JUDICIAL DIST., IN AND FOR SILVER BOW COUNTY et al.

No. 7406.

Supreme Court of Montana

February 5, 1935

Application by the State, on relation of the Gold Creek Mining Company for a writ of supervisory control to direct the District Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow, and Hon. T. E Downey, a Judge thereof, to permit the relator to file an amended answer in a case therein pending.

Writ of supervisory control issued.

S. P Wilson, of Deer Lodge, and William Meyer, of Butte, for relator.

H. L Maury and A. G. Shone, both of Butte, for respondents.

STEWART Justice.

This is an application for a writ of supervisory control to direct the district court of Silver Bow county to permit relator to file an amended answer in a case therein pending. The action is one in which plaintiff, one Daisy B. Kroehnke, seeks to recover from the defendant Gold Creek Mining Company, relator herein, the sum of $25,037.22 for services alleged to have been rendered, and moneys expended by plaintiff on behalf of defendant. The action was commenced in the respondent court on June 7, 1934. Thereafter, in August or September, the defendant answered the complaint. In its answer defendant company denied generally the allegations of the complaint, and also pleaded two affirmative defenses. Reply was filed to the affirmative matter contained in the answer.

Thereafter, in December, the cause was set for trial before a jury for January 24, 1935. On January 4th, defendant gave notice to plaintiff 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 was identical to the original answer, except that it contained, in addition to the matter previously alleged, a counterclaim for affirmative relief in the nature of an alleged indebtedness of plaintiff to defendant in the amount of $87,551.75. It is alleged that this indebtedness grew out of various dealings between defendant and the Mining Securities Company, in which transactions plaintiff acted as agent of the latter company between September, 1929, and December, 1931. On January 7, 1935, defendant requested in writing that the respondent court, and the Honorable T. E. Downey, acting judge thereof, grant leave to file the amended answer. The application was supported by the affidavit of S. P. Wilson, attorney for defendant. Plaintiff filed written objections and the matter was argued to the court by counsel for both sides. At the conclusion of the hearing, the matter was submitted and taken under advisement by Judge Downey.

In the affidavit of Mr. Wilson it is recited that he is the counsel for defendant; that at the time when he prepared the original answer he "was not advised and did not know of the existence of the counterclaim against plaintiff set out in the proposed amended answer until about January 1, 1935"; and that none of the officers of defendant company seemed to know or be aware of the existence of such proposed counterclaim.

The written objections filed by plaintiff in opposition to the amendment were that the proposed counterclaim was barred by the statute of limitations; that it did not state facts sufficient to constitute a cross-complaint or counterclaim; that it was not the proper subject of counterclaim; that it was frivolous and sham; and that defendant was guilty of laches in its application to file the amended answer.

On January 15, 1935, defendant filed the statutory affidavit of prejudice disqualifying Judge Downey. At that time no decision or ruling had been made upon defendant's motion for leave to file the amended answer. Thereafter, on January 19, Judge Downey made and entered a ruling sustaining plaintiff's objections and denying defendant's request for permission to file the amended answer containing the counterclaim. Defendant then presented its application to this court for a writ of supervisory control to compel the district court to grant the motion to file the amended answer. The application rests upon two grounds: (1) That after Judge Downey was disqualified on January 15, he no longer had any power or authority to pass upon the application for leave to file the amended answer, and that his decision of that matter made on January 19 was therefore void and of no effect. (2) Assuming that Judge Downey did have the authority to act in the matter, still, in view of the circumstances disclosed at the hearing and by the affidavit of Wilson, it is apparent that he abused the discretion vested in him by refusing permission to file the amended answer.

We find no merit in the contention advanced by defendant concerning the jurisdiction of Judge Downey to decide upon the application for filing an amended answer. In the case of State ex rel. Grice v. District Court, 37 Mont. 590, 97 P. 1032, this court held that where a disqualifying affidavit was filed after a motion to strike portions of a pleading had been submitted and taken under advisement, the jurisdiction of the court over the cause ceased after ruling on the motion. The rule thus laid down in the Grice Case has not been changed or qualified by this court since that time. We think Judge Downey had jurisdiction to pass upon the motion by reason of the fact that it was presented to and taken under advisement by him prior to the date of his disqualification. Compare Brindjonc v. Brindjonc, 96 Mont. 481, 31 P.2d 725.

A more serious difficulty is presented by the question whether the court's refusal to permit the filing of the amended answer was an abuse of discretion. Under section 9187 Revised Codes of 1921, the matter of permitting amendments of pleadings lies within the sound discretion of the trial court; the rule being to allow, and the exception to deny, them. Fowlis v. Heinecke, 87 Mont. 117, 287 P. 169; Cullen v. Western M. & W. Title Co., 47 Mont. 513, 134 P. 302; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 P. 40. The allowance of amendments to pleadings after issue joined is a matter within the sound legal discretion of the court. St....