Sun River Cattle Co. v. Miners' Bank of Montana

• Decision Date: 23 July 1974
• Docket Number: No. 12511,12511
• Citation: 525 P.2d 19,164 Mont. 479
• Parties: SUN RIVER CATTLE COMPANY et al., Plaintiffs and Appellants, v. MINERS' BANK OF MONTANA et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 19

525 P.2d 19

164 Mont. 479

SUN RIVER CATTLE COMPANY et al., Plaintiffs and Appellants, v. MINERS' BANK OF MONTANA et al., Defendants and Respondents.

No. 12511.

Supreme Court of Montana.

Submitted June 13, 1974.

Decided July 23, 1974.

Corette, Smith & Dean, Butte, Kendrick Smith argued and Gerald R. Allen and Sam Chase appeared, Butte, for appellants.

Alexander, Kuenning & Miller, Edward C. Alexander argued, Great Falls, Henningsen, Purcell & Genzberger, Butte, for respondents.

Wesley Wertz, Helena, Turnage & McNeil, Polson, Luxan, Murfitt & Davis, Helena, amicus curiae.

PER CURIAM:

This matter comes on a motion to correct a remittitur. A final opinion, per curiam, 521 P.2d 679, was issued in Sun River Cattle Co., Inc., a corporation; Louis Skaar & Sons; and Bruce E. Beck & Sons, Plaintiffs and appellants, v. Miners Bank of Montana, N.A., a Banking Corporation, Defendant and Respondent, on April 17, 1974. Petition for rehearing was denied and the order denying the rehearing together with a copy of the opinion was issued as the remittitur and sent to the clerk of court of Silver Bow County.

The remittitur reversed the judgment and in effect directed judgment to be entered for the amounts of the checks involved. The opinion did not comply with Rule 31, M.R.App.Civ.P., that '* * * the mandate shall contain instructions with respect to allowance of interest.' Now, plaintiffs seek correction or clarification on interest.

Plaintiffs' position is that interest runs on each of the six checks from the second day following final receipt of each of the six checks by the bank.

Defendant's position is: first, this Court has lost jurisdiction over the remittitur; second, since the opinion merely reversed the judgment a new trial is called for, rather than an entry of judgment for plaintiffs; third, that in any event, additional evidence is called for before the trial court to establish a measure of damages because, even if there was liability under the rule of section 87A-4-302, R.C.M.1947, the measure of damages would be that prescribed by section 87A-4-103(5), R.C.M.1947, this argument is based on a tort rule where any loss triggered by 'bad faith' should call for the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and the damages suffered as a proximate consequence of the bad faith; and fourth, that since the action sounds in the nature of a tort based on a violation of statutory obligation, the obligation to pay does not arise until a judgment is entered determining liability and fixing the amount.

We shall narrow the issue by disposing of defendant's first two contentions. This Court clearly has jurisdiction to correct oversights or omissions. See State ex rel. Kruletz v. District Court, 110 Mont. 36, 39, 98 P.2d 883, as to district courts. Moreover, here, defendant goes on to seek clarification and direction, so really does not seriously make its contention.

Defendant states that a new trial follows a simple reversal of a judgment and cites Steen v. Hendy, 107 Cal. 49, 40 P. 386. Steen was not followed by this Court in State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 211, 105 P. 721.

In La France it was stated that this Court 'should exercise its undoubted authority to take the initiative in disposing of litigation as expeditiously as possible * * *.' Rule 31, M.R.App.Civ.P., provides:

'* * * If a judgment is * * * reversed...