State ex rel. Kruletz v. District Court of Fifth Judicial Dist. in and for Beaverhead County

• Decision Date: 30 January 1940
• Docket Number: 8060.
• Citation: 98 P.2d 883,110 Mont. 36
• Parties: STATE ex rel. KRULETZ v. DISTRICT COURT OF FIFTH JUDICIAL DIST. In and for BEAVERHEAD COUNTY et al.
• Court: Montana Supreme Court

98 P.2d 883

110 Mont. 36

STATE ex rel. KRULETZ v. DISTRICT COURT OF FIFTH JUDICIAL DIST. In and for BEAVERHEAD COUNTY et al.

No. 8060.

Supreme Court of Montana

January 30, 1940

Proceeding by the State of Montana, on the relation of Tony Kruletz against the District Court of the Fifth Judicial District of the State of Montana in and for the County of Beaverhead, and Henry G. Rodgers, as Judge of such District Court, to require the court to vacate and annul two orders made after final decree, and an amended decree rendered pursuant thereto. An alternative writ of mandate issued and respondents filed a motion to quash the return of service and without waiver thereof filed an answer to the writ.

Application for peremptory writ denied; proceedings dismissed.

J. L Mayland, of Dillon, for relator.

John Collins, of Dillon, for respondent.

JOHNSON Chief Justice.

Relator Tony Kruletz, applied for a writ of mandate, or other appropriate writ, to require the district court of Beaverhead county and Henry G. Rodgers, as judge thereof, to vacate and annul two orders made after final decree, and an amended decree rendered pursuant thereto, in Cause No. 4614, entitled Joseph Stefanic v. Tony Kruletz and Joseph Mautz. An alternative writ of mandate issued and respondents filed a motion to quash the return of service and without waiver thereof filed an answer to the writ. Briefs were filed and oral argument had on both the motion and the issues raised by the answer.

The facts are that on June 30, 1894, in Cause No. 828, a water right suit, the district court for Beaverhead county rendered a decree awarding to G. W. Perkins and N. A. Stiles, as of May 1, 1882, a water right to the use of 740 statutory inches of water from Beaverhead River through the Graeter and Tucker Ditch. By the preceding paragraph of the decree it also awarded to G. W. Perkins and one O. E. Morris, as of October 15, 1884, a right to the use of 620 inches of water through the Engle Ditch.

All of the parties to Cause No. 4614, the one in question here, are successors in interest to the first water right mentioned above, Stefanic's interest having been acquired by conveyance from Kruletz. In 1938 a controversy arose whether by the conveyance Stefanic acquired a one-sixth interest in the ditch and water right, amounting to 123 1/3 inches, as claimed by him, or only 70 inches and a corresponding interest in the ditch, as claimed by Kruletz. Stefanic thereupon filed Cause No. 4614, a quiet title action to determine his right and to enjoin interference therewith. Mautz defaulted, not being concerned in the controversy. No question was involved concerning the date of the water right or of priority between the parties, all admittedly claiming under the same right and as of the same date. The sole issue was the number of inches of water and the proportionate interest in the ditch belonging to Stefanic. In his complaint Stefanic did not mention the date of the water right, but merely alleged that in Cause No. 828 there was decreed to the parties and their predecessors a right to the use of 740 inches of the water of the stream, and that he, Stefanic, was an owner of an undivided one-sixth interest therein. In his answer in Cause No. 4614 Kruletz alleged that in Cause No. 828 the two water rights above mentioned were adjudicated as stated above in this decision; that Stefanic, Kruletz and Mautz are the owners of the 740-inch water right and of the Graeter and Tucker Ditch, now known as the Perkins Ditch, and that Stefanic was entitled only to 70 inches of that water right, and not to one-sixth thereof as claimed.

The court found in Cause No. 4614 that in Cause No. 828 Stiles and Perkins were adjudged the owners of the water right of 740 statutory inches, but erroneously mentioned the date of the appropriation as October 15, 1884 (which was the date of the 620-inch water right mentioned in Kruletz' answer but not involved in the suit); it found that the parties to Cause No. 4614 were the successors in interest to the said 740-inch water right, and that Stefanic was entitled to the entire one-sixth thereof claimed by him, or 123 1/3 statutory inches, and to a corresponding undivided ownership in the Graeter and Tucker Ditch, also known as the Perkins Ditch. The court's conclusion was that the parties were entitled to have their respective interests in the ditch and water right quieted accordingly. Subsequently, on November 25, 1938, a decree was entered in accordance with the findings and conclusions and enjoining interference with the rights of the various parties, but again erroneously mentioning the date of the water right in question as October 15, 1884, instead of May 1, 1882. Costs were not mentioned in the findings, conclusions or decree, but on November 29, 1938, Stefanic filed his cost bill for $53.92; no motion to retax costs was made. Thereafter on December 20, 1938, Stefanic filed a motion to amend the decree to award him costs. Kruletz filed a motion to strike Stefanic's motion on the ground that the court was without jurisdiction to grant the same; after argument by both parties, Kruletz' motion was denied and Stefanic's was granted.

The error in the date of the appropriation was first discovered in the spring of 1939, when the water commissioner was given a list of the water rights, in which the 740-inch water right for the Perkins Ditch, supplying all parties to Cause No. 4614, was dated October 15, 1884, as erroneously mentioned in the decree in that suit, instead of May 1, 1882, as adjudicated in Cause No. 828. On ex parte application of Stefanic, the court on June 30, 1939, entered a nunc pro tunc order amending its decree to correct the patent error in the date of the water right.

Various questions have been raised relative to the service of the writ and to the propriety of a special writ to the controversy in question, but it will not be necessary to consider them, since in any event a peremptory writ must be denied upon the merits.

It has been uniformly held in the jurisprudence of the Territory and State of Montana, that judgments or records of trial courts may be modified or amended by the entry of nunc pro tunc orders or amended judgments to remedy the failure of the clerk to enter judgment within the time provided by law or to correct other error or omission by the clerk (Comanche Mining Co. v. Rumley et al., 1 Mont. 201, 32 Pacific States Reports; Harvey v. Whitlatch, 1 Mont. 713, 32 Pacific States Reports; Territory v. Clayton, 8 Mont. 1, 19 P. 293; Kendall v. O'Neal, 16 Mont 303, 40 P. 599; State v. Bowser, 21 Mont. 133, 53 P. 179), or to show entry of judgment nunc pro tunc as of the day on which it was rendered (Parrott v. McDevitt, 14 Mont. 203, 36 P. 193), or to make the judgment effective nunc pro tunc as within twenty-four hours after verdict, as provided by law (State ex rel. Jones v. District Court, 50 Mont. 1, 144 P. 564), or to make the record speak the truth as to date of entry of judgment or in other respects (Power & Bro. Limited v. Turner, 37 Mont. 521, 97 P. 950; First State Bank of Thompson Falls v. Larsen, 72...