CAMPANELLA v BOUMA

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No. 12514 I N THE SUPREME COURT O THE STATE O MONTANA F F GEORGE CAMPANELLA, a s R e c e i v e r f o r t h e u s e and b e n e f i t o f LARRY C. IVERSON, I N C . , and i t s shareholders, P l a i n t i f f and Respondent, -vs - RALPH BOUMA, MRS. RALPH BOUMA, h i s w i f e ; e t a l . , Defendants, Counter a n d / o r Cross - P l a i n t i f f s and A p p e l l a n t s , -vs - FARMERS STATE BANK O CONRAD, EARL M. BERTHELSON, and F UNITED BANK O PUEBLO ( f o r m e r l y ARKANSAS VALLEY BANK), F Counter a n d / o r Cross Defendants and Respondents, -vs - RAY LIGHTNER and MRS. RAY LIGHTNER, h i s w i f e , Cross-Defendants and Respondents, -vs - CARL 0. IVERSON and LARRY C. IVERSON, Petitioners for Intervention, Counter a n d / o r C r o s s - P l a i n t i f f s and A p p e l l a n t s . Appeal from: D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t , Honorable Paul G. Hatf i e l d , Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t s : Ralph Bouma (Pro Se) appeared, Ledger, Montana K e i l and Gustafson, Conrad, Montana Dale L. K e i l appeared and Gale R. Gustafson a r g u e d , Conrad, Montana For Respondents: D z i v i , Conklin, Johnson and Nybo, Great F a l l s , Montana James W. Johnson argued, Great F a l l s , Montana Swanberg, Koby, Swanberg and M a t t e u c c i , Great F a l l s , Montana Raymond F. Koby a r g u e d , G r e a t F a l l s , Montana Church, H a r r i s , Johnson and Williams, Great F a l l s , Montana Cresap S. McCracken argued, Great F a l l s , Montana James, C r o t t y , Fopp & Paul, Great F a l l s , Montana G , Robert C r o t t y argued, Great F a l l s , Montana a=- Filed - Submitted: March 19. 1974 Mr. J u s t i c e Wesley Castles delivered the Opinion of t h e Court. This is an attempted appeal by defendants Bouma from an order dated March 23, 1972, by the Honorable Paul G . Hatfield made during the pleading stages, such order designed t o s e t t l e the pleadings so t h a t issues raised by the complaint might be pursued. This unusual attempted appeal a t t h i s stage makes our review and t h i s opinion somewhat unorthodox. However, in an e f f o r t to aid subsequent proceedings, we will s e t f o r t h more materials than necessary t o decide the appeal. In December, 1971, the respondent receiver commenced t h i s action against the appellants Bouma f o r the rescission of t h e Bouma contract t o purchase 4,520 acres of farmland from the corporation. The history of other l i t i g a t i o n involving the corporation dates back t o 1964. The l a t e s t case bef o r e t h i s Court i n the s e r i e s of cases in Cause No. 12387, Farmers S t a t e Bank . of Conrad v . Iverson, e t a1 and Bouma, reported a t 839, 30 St.Rep. 501. Mont. , 509 P.2d In t h a t opinion a review of the long l i t i g a t i o n was made and w will not repeat i t here. e B u t hereinafter we will r e f e r t o t h a t opinion. The combined order i n Pondera County Cause No. 8 9 9 delineates and describes the complex s i t u a t i o n and we quote the e n t i r e order a s follows: "A review of the court f i l e in the above-entitled action reveals t h a t the P l a i n t i f f f i l e d h i s complaint herein on or about December 10, 1971. Defendant Ralph Bouma f i l e d his answer and supplemental answer on September 22, 1972, and November 28, 1972, respectively, s e t t i n g f o r t h twenty-eight separate defenses. Said Defendant f i l e d h i s counterclaim, consisting of nine separate counts, on September 22, 1972. On December 19, 1972, P l a i n t i f f f i l e d a l t e r n a t i v e motions under Rule 12, M.R.C.P. t o s t r i k e Counts One, TWO, Three and Nine of said Defendant's counterclaim, or a l t e r n a t i v e l y t o dismiss said counts f o r t h e i r f a i l u r e t o s t a t e a claim f o r r e l i e f . Additionally said motion sought the dismissal of a l l of the remaining counts upon the same ground o r , a l t e r n a t i v e l y , seeking an order requiring a more d e f i n i t e statement of said remaining counts. These a l t e r n a t i v e motions were supported by P l a i n t i f f by a memorandum f i l e d January 5, 1973, and opposed by Defendant Ralph Bouma on February 7 , 1973, by a motion t o quash said motions, along with other pending motions. P l a i n t i f f f i l e d a reply memorandum on February 22, 1973, and a hearing upon said motions was held, by order of the Court, on March 1 , 1973. The Court having considered the aforesaid motions, the memoranda i n support thereof, the arguments by Ralph Bouma, appearing pro s e , by James W. Johnson, appearing f o r the P l a i n t i f f , and by Gale Gustafson appearing f o r Defenda n t , Mrs. Ralph Bouma (over the objection of P l a i n t i f f ' s counsel t h a t Mrs. Ralph Bouma had no i n t e r e s t in motions going t o the merits of her husband's s o l e counterclaim), and the court being cognizant of the condition and circumstances of the record i n t h i s cause t o date and being f u l l y informed in the premises, IT IS HEREBY ORDERED A FOLLOWS: S "(1 ) The Motion t o Quash of Defendants Ralph Bouma and Mrs. Ralph Bouma i s a motion unheard of in the law of t h i s s t a t e and on& not sanctioned by the Montana Rules of Civi 1 Procedure. Such a motion was contrary t o the former practice i n this s t a t e (see S t a t e ex r e l . McVay v . D i s t r i c t Court, 126 Mont. 382, 251 P.2d 840) and i s superfluous and unauthorized i n t h e present practice. Said motion by said Defendants, f i l e d herein on February 7 , 1973, i s hereby s t r i c k e n . The memorandum f i l e d i n support of said Motion t o Quash has been taken by the Court a s a memorandum i n opposition t o the a l t e r n a t i v e motions of the P l a i n t i f f and has been considered by the court. " ( 2 ) Regarding Counts One, Two, Three and Nine of the counterclaim of Defendant Ralph Bouma, both a l t e r n a t i v e motions of Plaint i f f ' s t o s t r i k e o r dismiss said Counts a r e well taken. For the reasons, and upon the authority c i t e d in P l a i n t i f f ' s b r i e f , said counts f a i l t o s t a t e a claim against P l a i n t i f f upon which r e l i e f may be granted. I t i s unnecessary t o grant such dismissal, however, as a l l of said counts a r e frivolous, impertinent and immaterial. The a l l e g a t i o n s in these four counts bear no r e l a t i o n ship whatsoever t o the p a r t i e s or issues involved i n t h i s case, and a c t u a l l y a r e v i r t u a l l y u n i n t e l l i g i b l e as t o a cogent theory supporting the claims f o r r e l i e f . B the r e l i e f demanded, Mr. y Bouma wishes t o enjoin the e f f e c t of and eventually s e t aside previous f i n a l judgments of t h i s court t o which he was not a party. Such i s a bald and unlawful c o l l a t e r a l attack upon those judgments which were made upon due j u r i s d i c t i o n , or a t l e a s t Mr. Bouma has not alleged otherwise. In addition, Mr. Bouma would have no standing t o make such c o l l a t e r a l a t t a c k s , even i f i t were allowable. These former judgments " a f f e c t " Mr. Bouma i n t h a t the chain of events has produced a receiver which is suing him. Since the P l a i n t i f f receiver has alleged t h a t he has been duly appointed and authorized and Mr. Bouma has denied those a l l e g a t i o n s , the r e c e i v e r ' s standing i s undoubtedly i n issue i n t h i s case by the denials and defenses of Mr. Bouma. Such proof a s both p a r t i e s a r e able t o adduce will go toward t h i s issue. To a small extent such issue i s involved with the allegations Mr. Bouma has s e t f o r t h i n these four counts of his counterclaim, and t o t h a t ext e n t such allegations a r e n o t immaterial, however they a r e r e dundant. I t would be an unwarranted stretching of the l e t t e r and theory of our procedural rules t o allow these counts t o stand. Taken a s a whole, Counts One, Two, Three and Nine of Ralph Bouma's counterclaim a r e frivolous, redundant and impertinent, and a r e hereby stricken. P l a i n t i f f ' s motion t o dismiss Counts Four, Five, Six, Seven and Eight of Defendant Ralph Bouma's counterclaim i s hereby denied. The allegations of Counts Seven and Eight, i f taken as t r u e f o r purposes of said motion, c l e a r l y s t a t e a claim f o r r e l i e f against t h e P l a i n t i f f corporation. The allegations of Counts Four, Five, and Six however, a r e d e f i c i e n t and a n t i t h e t i c a l i n places, and a r e confusing overall. Because these counts were submitted by Mr. Bouma pro s e , he shall have an opportunity t o c l a r i f y the nature of his alleged claims. I t would be wise f o r Mr. Bouma t o consult with counsel a s t o the d e f i n i t i o n of f e e simple ownership "(3) and then t o c l a r i f y Counts Four and F i v e as t o t h e exact n a t u r e o f t h e performance sought and t h e exact p o r t i o n s o f t h e a1 leged agreements g i v i n g r i s e t o such o b l i g a t i o n s . With regard t o Count Six, M r . Bouma must s t a t e h i s damages w i t h p a r t i c u l a r i t y b o t h as t o t h e exact nature o f t h e damage which i s a l l e g e d t o be t h e breach o f t h e indemnity agreement and a l s o as t o t h e damage which he has a l l e g e d t o have flowed from t h a t breach. I t i s hereby ordered t h a t Defendant Ralph Bouma s h a l l have u n t i l A p r i l 20, 1973, t o f i l e a more d e f i n i t e statement o f Counts Four, F i v e and S i x o f h i s counterclaim, o r s u f f e r t h e i r d i s m i s s a l . "Defendant Ralph Bouma s h a l l be g i v e n no f u r t h e r c o n s i d e r a t i o n whatsoever f o r being unrepresented by counsel i n t h i s a c t i o n . The c o u r t recognizes h i s r i g h t t o r e p r e s e n t h i m s e l f b u t s e r i o u s l y questions h i s judgment i n a case o f a p p a r e n t l y g r e a t magnitude and meaning t o him. The c o u r t has no r e a l i n t e r e s t o r r i g h t i n q u e s t i o n i n g h i s judgment o r motives unless and u n t i l h i s conduct o f h i s own case s e r i o u s l y approaches t h e p o i n t o f hampering o r impeding t h e a d m i n i s t r a t i o n o f j u s t i c e o r t h e r i g h t s o f o t h e r p a r t i e s b e f o r e t h e c o u r t . W are now a t t h a t p o i n t . S p e c i f i c e i n s t a n c e s s h a l l go u n c i t e d a t t h i s time, however i t i s apparent t h a t i n t h e p a s t M r . Bouma has used h i s l a c k o f r e p r e s e n t a t i o n t o h i s advantage i n these proceedings and has a l s o used t h e f a c t o f h i s w i f e ' s r e p r e s e n t a t i o n a l s o t o h i s advantage. I n t h e f u t u r e , counsel f o r Mrs. Bouma w i l l n o t be p e r m i t t e d t o argue o r otherwise p a r t i c i p a t e i n instances where she has no more than a t a n g e n t i a l i n t e r e s t and M r . Bouma has t h e d i r e c t i n t e r e s t . If M r . Bouma wishes t o continue t o r e p r e s e n t h i m s e l f t h a t i s h i s p r i v i l e g e , however h e n c e f o r t h he w i l l be h e l d t o t h e same h i g h standards o f knowledge and s k i l l and e t h i c s as an a t t o r n e y and o f f i c e r o f t h i s court. "On September 22, 1972, Defendant Ralph Bouma f i l e d h e r e i n what he denominated as a 'cross-claim' a g a i n s t Ray L i g h t n e r and Mrs. Ray L i g h t n e r , h i s w i f e , n e i t h e r o f whom were p a r t i e s t o t h i s a c t i o n . On February 26, 1973, t h e s a i d L i g h t n e r s f i l e d a combined motion seeking t o dismiss s a i d k r o s s - c l a i m J f o r i t s f a i l u r e t o s t a t e a c l a i m upon which r e l i e f c o u l d be granted, and upon several o t h e r grounds enumerated i n s a i d motion, and a l s o seeking t o s t r i k e s a i d ' c r o s s - c l a i m ' as being redundant, immaterial , i m p e r t i n e n t and scandalous i n several enumerated respects, and a l s o seeking a more d e f i n i t e statement. On March 16, 1973, Defendant Ralph Bouma f i l e d a motion t o quash s a i d combined motion. "On November 28, 1972, Defendant Ralph Bouma f i l e d h e r e i n what he denominated a ' c r o s s - c l a i m ' a g a i n s t t h e Farmers S t a t e Bank o f Conrad, E a r l M. Berthelson and t h e U n i t e d Bank o f Pueblo, none o f which were p a r t i e s hereto. On December 18, 1972, the Farmers S t a t e Bank and M r . Berthelson f i l e d a l t e r n a t i v e motions t o s t r i k e o r dismiss s a i d ' c r o s s - c l a i m ' and on December 19, 1972, t h e U n i t e d Bank o f Pueblo f i l e d i t s motion t o dismiss f o r want o f j u r i s d i c t i o n . On December 21 , 1972, separate memoranda were f i l e d i n support o f s a i d motions. On February 7, 1973, Defendant Ralph Bouma f i l e d a motion t o quash these motions o f t h e s a i d banks and t h e s a i d M r . Berthelson, combined w i t h t h e motion t o quash P l a i n t i f f ' s motions as h e r e i n b e f o r e r e f e r r e d t o , t o g e t h e r w i t h a memorandum i n support o f s a i d motion t o quash. On February 14, 1973, t h e Farmers S t a t e Bank and M r . B e r t h e l son f i l e d a j o i n t memorandum i n opposition t o Bouma ' s motion t o quash and in support of t h e i r own motions, and on February 15, 1973, t h e United Bank of Pueblo f i l e d a reply memorandum t o Bouma's motion t o quash, "Neither Ralph Bouma nor the Lightners have requested a hearing upon the Lightners' motions nor Mr. Bouma's motion t o quash them b u t the Court deems i t s e l f aware and informed s u f f i c i e n t l y t o r u l e from the face of said motions and t h e face of said 'cross-claim'. By order of the Court the motions of the Farmers S t a t e Bank of Conrad, Earl M. Berthelson and the United Bank of Pueblo, and Ralph Bouma's motions t o quash said motions were s e t f o r hearing on March 1 , 1973. The Court having considered t h e several motions of the p a r t i e s , the memoranda i n support thereof or opposition t h e r e t o , t h e arguments of Mr. Ray F. Koby, representing the Farmers S t a t e Bank and Earl M. Berthelson, Cresap S. McCracken representing the United Bank of Pueblo, Ralph Bouma representing himself and Gale Gustafson representing Mrs. Ralph Bouma (over the objection of Mr. McCracken and Mr. Koby), and the Court being cognizant of the condition and circumstances of the record in this cause and being f u l l y informed i n the premises, IT IS HEREBY ORDERED A FOLLOWS: S " ( 1 ) The motion of Ralph Bouma t o quash t h e motions of the Lightners, and the motion of Ralph Bouma t o quash the motions of the Farmers S t a t e Bank, Earl M. Berthelson, and the United Bank of Pueblo are both hereby denied. Reference i s made t o paragraph 1(1) of t h i s Combined Order. The reasoning and r e s u l t s s e t f o r t h there apply here. As s t a t e d i n the McVay case hereinbefore referred t o , such a motion i s t o be regarded as superfluous, f r i v o lous, confusing and bad practice. Said motions have been taken by this Court t o be memoranda i n opposition t o the motions sought t o be quashed and have been read and considered by the Court. " ( 2 ) The motion of Ray Lightner and Mrs. Ray Lightner t o s t r i k e the 'cross-claim' of Defendant Ralph Bouma i s hereby granted. The motion of the Farmers S t a t e Bank of Conrad and Earl M . Berthelson t o s t r i k e Ralph Bouma's 'cross-claim' is hereby granted. Ralph Bouma's 'cross-claim' as pertains t o the United Bank of Pueblo is hereby stricken by t h i s Court's own motion as provided by Rule 1 2 ( f ) of t h e Montana Rules of Civil Procedure. Additionally, the motion of the Lightners f o r dismissal of said 'cross-claim' f o r i t s f a i l u r e t o s t a t e a claim is hereby granted. The motion of the Farmers S t a t e Bank and Mr. Berthelson t o dismiss the 'cross-claim' against them f o r i t s f a i l u r e t o s t a t e a claim i s hereby granted. And the motion of the United Bank of Pueblo t o dismiss the 'crossclaim' as pertains t o t h a t bank f o r t h i s Court's lack of j u r i s diction over said bank and lack of j u r i s d i c t i o n over the subject matter i s hereby granted. The remaining motions of t h e Lightners as s e t f o r t h in t h e i r combined motions as f i l e d herein on February 26, 1973, a r e deemed moot. "Neither the Farmers S t a t e Bank, Earl M . Berthelson, United Bank of Pueblo, Ray Lightner nor Mrs. Ray Lightner a r e p a r t i e s t o t h i s action. The Montana Rules of Civi 1 Procedure do not permit nor even contemplate a cross-claim against a person o r e n t i t y which i s not a party. Neither 'cross-claim' cam be converted i n t o a t h i r d party claim under Rule 14 of the Montana Rules of Civil Procedure a s , in neither case, can the allegations or the r e l i e f sought be stretched t o s t a t e t h a t any of these nonparties a r e , o r may be l i a b l e t o Mr. Bouma f o r a l l o r part of t h e P l a i n t i f f ' s claim against Mr. Bouma Furthermore, neither 'cross-cl aim' s e t s f o r t h . f a c t s e n t i t l i n g Ralph Bouma t o any r e l i e f against the said nonp a r t i e s . The r e l i e f sought i n said 'cross-claim' i s not such a s would make the addition of any of said nonparties j u s t i f i a b l e a s necessary or proper p a r t i e s . "The allegations i n the 'cross-claim' against the United Bank of Pueblo, are v i s i b l y devoid of any reference t o said United Bank of Pueblo and do not support any claim f o r re1 i e f i n favor of Ralph Bouma against said bank whatsoever. The 'summons' served upon t h e United Bank of Pueblo, w i t h i n the S t a t e of Colorado i s l e g a l l y i n s u f f i c i e n t t o obtain j u r i s d i c t i o n over said bank f o r want of meeting the m i n i m u m requirements of Montana Rules of Civil Procedure Rule 4C. Nothing i n the pleadings, b r i e f s , argument o r judicial notice of t h i s Court shows the United Bank of Pueblo t o be subject t o the j u r i s d i c t i o n of t h i s Court in t h i s proceeding under M.R.C.P. Rule 4B o r otherwise. The r e l i e f sought against the United Bank of Pueblo, and against the Farmers S t a t e Bank of Conrad and Earl M. Berthel son are again attempts t o s e t aside previous f i n a l judgments of t h i s Court, with no jurisdictional deficiencies alleged, by a person who was not a party thereto. Such attempts a r e prohibited c o l l a t e r a l attacks upon said judgments a s s e t f o r t h in paragraph I . of t h i s Combined Order. "On February 28, 1973, Defendant Ralph Bouma, along w i t h Mrs. Ralph Bouma, f i l e d a document e n t i t l e d Motion t o Quash and Motion For Substitution of Appearances. T h i s motion sought an order quashing the motion by the Central Bank of Montana t o deposit funds into court. That motion t o quash was denied i n t h i s Court's order dated March 20, 1973, e n t i t l e d Order Requiring Deposit of Money a t I n t e r e s t . The remainder of the motion seeks an order requiring a d i f f e r e n t law firm t o be substituted as counsel f o r the Farmers S t a t e Bank i n t h i s action because of an alleged conf l i c t of i n t e r e s t of said law firm from alleged previous represent a t i o n of c e r t a i n individuals n o t p a r t i e s t o t h i s action, namely individual members of the Iverson family who were formerly stockholders in the corporation which i s P l a i n t i f f herein. These motions were noticed by the Boumas f o r hearing on March 1 , 1973, the time s e t by the court f o r the hearing of other motions herein previously ruled upon. However, said motions were not served upon adversaries, p a r t i c u l a r l y the Farmers S t a t e Bank, u n t i l March 1 , 1973, a t the hearing of said other motions. The Court a t t h a t time, prior t o reading Bouma ' s memorandum, a1 1owed counsel f o r t h e Farmers S t a t e Bank ten (1 0) days t o f i l e a memorandum in opposition t o said motion, said memorandum having been f i l e d herei n on March 9, 1973. The court a l s o allowed an additional ten (10) days f o r Ralph Bouma t o f i l e a responding memorandum in support of said motion, said memorandum having been f i l e d herein on March 20, 1973. The court a t t h a t time a l s o s t a t e d i t s intention t o r u l e upon said motion from the b r i e f s and memoranda submitted. The court having the f u l l benefit of the aforesaid memoranda and being f u l l y informed i n t h e premises, IT IS HEREBY ORDERED t h a t the motion f o r substitution of appearances f i l e d herein by Ralph Bouma and Mrs. Ralph Bouma be, and hereby i s denied. In so r u l i n g , the court has attempted t o r e t a i n i t s o b j e c t i v i t y , continuing t o assume t h a t such motion was legitimately motivated, an exceedingly d i f f i c u l t task considering the motion i s absurd i n nature, irrelevant and scandalous i n content and basely vitupera t i v e i n tone. There i s no place in our judicial system f o r such an undignified product even i f a member of the bar had not l e n t h i s name t o i t . T h i s is true apart from t h e truth or fa1 s i t y of the t o r r e n t of a1 l egations s e t f o r t h i n Mr. Bouma's memoranda. The argument and authority s e t f o r t h in the memorandum of Farmers S t a t e Bank i n opposition t o the Boumas' motion, a t paragraph 11. thereof, i s well taken. Said motion i s u n authorized and most impertinent and should properly be stricken from the record. Since the Court's ruling i n paragraph 11. ( 2 ) hereof renders t h e question of the representation of Farmers S t a t e Bank moot anyway, the Court's order of denial of the motion will s u f f i c e , w i t h t h e caveat t o Defendant Bouma and t o any counsel f o r h i m or Mrs. Bouma t h a t any f u t u r e motions or pleadings f i l e d herein w i t h content of a similar nature or w i t h simi l a r apparent motivation will be stricken summari l y and considered a s contemptuous. "On March 1 , 1973, a t the time of the aforementioned hearing, counsel f o r Mrs. Ral ph Bouma herein, Dale L . Kei 1 , presented t o the court l e t t e r s purportedly signed by Carl 0. Iverson and Larry C . Iverson authorizing said counsel t o additionally represent them i n these proceedings. Said counsel then proceeded t o f i l e herein a motion by said persons t o intervene in these proceedings pursuant t o Rule 24 of the Montana Rules of Civil Procedure. Attached thereto was a proposed p e t i t i o n t o be f i l e d by said persons t o s e t aside previous orders of t h i s court, based upon similar or identical allegations t o those s e t f o r t h by Defendant Ralph Bouma a s Counts One, Two, Three and Nine of his counterclaim against P l a i n t i f f herein and the same or similar t o those allegations contained in said Ralph Bouma's 'cross-claim' against t h e Farmers S t a t e Bank, Earl M. Berthelson, and the United Bank of Pueblo, a l l of which has been hereinbefore stricken and dismissed. On March 1 , 1973, the Court allowed said counsel ten (10) days t o f i l e a brief i n support of said motion t o intervene and stated i t s intention t o r u l e from b r i e f s . Counsel f o r Carl 0. Iverson and Larry C . Iverson f i l e d such memorandum herein on March 12, 1973, and appended t o i t a notice of hearing upon said motion s e t f o r April o 2, 1973. N such hearing has been s e t by the Court. Further, on March 16, 1973, counsel f o r said Iversons f i l e d herein a document i denominated a Proposed Motion f o r D squal i f ication of Counsel and t o Set Aside. This seeks an order t o disqualify t h e law firm representing the Farmers S t a t e Bank upon the same grounds as the motion denied t o Defendant Ralph Bouma i n the preceding paragraph and f u r t h e r seeks an order declaring previous orders of t h i s Court null and void f o r said a1 leged c o n f l i c t s of i n t e r e s t . Such proposed motion incorporates by reference a l l of the contents of the motion and the supporting memoranda and the argument pertaining t o said motion f o r substitution of counsel by Ralph Bouma. The Court having considered the motion f o r intervention by Carl 0. Iverson and Larry C . Iverson, together with the memorandum i n support thereof, taking cognizance of Defendant Ral ph Bouma Is previous claims of a similar nature t o the p e t i t i o n proposed, taking judicial notice of the f i n a l judgment of t h i s court i n Civil Actions No. 8221 and 8073 consolidated, and deeming i t s e l f f u l l y informed and advised i n the premises without f u r t h e r memoranda from possible opposing parties and without argument, IT IS HEREBY ORDERED A FOLLOWS: S "1. That the notice of hearing upon said motion appended t o the Iversons' memorandum i s hereby stricken and any hearing which the Clerk of the above-entitl ed court may have docketed f o r said date is hereby vacated. Such notice was contrary t o the s t a t e d i n tention of t h i s Court, i n open court. While the Court i s not adverse t o scheduling hearings f o r p a r t i e s upon proper request, a hearing and f u r t h e r argument upon this motion would be superfluous. 2 The document e n t i t l e d Proposed Motion For Disqualification of Counsel and To Set Aside, f i l e d herein by Larry C . Iverson and Carl 0. Iverson i s hereby s t r i c k e n . The Iversons a r e not p a r t i e s t o t h i s action, b u t merely seeking t o a t t a i n t h a t s t a t u s and as such have no standing t o make any motions until they a r e p a r t i e s . In addition, a l l t h a t i s set f o r t h i n paragraph 111. herein i s applicable here, especially since the Iversons propose t o adopt by reference the e n t i r e Bouma motion i n t h a t regard. Simply because the Iversons would allege t h a t said law firm a t one time represented them would not add any sanction or dignity t o such a motion. I t i s evident t o the Court t h a t such proposal, i f allowed, i s merely an attempt by Mr. Bouma t o do i n d i r e c t l y what he cannot do d i r e c t l y . "3. The motion of Carl 0. Iverson and Larry C . Iverson t o i n t e r vene i n these proceedings i s hereby denied. Nowhere in t h e motion or the supporting memorandum i s i t suggested t h a t the Iversons have any more i n t e r e s t i n these proceedings than the f a c t t h a t a t one were time they -stockholders in the P l a i n t i f f corporation. Judicial notice is properly taken of the aforementioned judgment of this Court in actions numbered 8221 and 8073 ruling t h a t said persons a r e no longer stockholders nor o f f i c e r s nor d i r e c t o r s of said corporation and therefore have no i n t e r e s t in i t . The apparent sole p u r pose of intervention here i s a c o l l a t e r a l a t t a c k upon said judgment, and others of this Court, which, according t o the proposed p e t i t i o n , contains no f u r t h e r enabling allegations than the previous c o l l a t e r a l a t t a c k s which were dismissed hereinbefore. Additional l y , such attempt t o e x e r t an i n t e r e s t i n Larry C . Iverson, Inc. would appear t o be contemptuous of paragraph 6 of the order of t h i s Court dated April 7 , 1971, and entered i n Causes No. 8221 and 8073 cons01 idated. "V. "IT IS FURTHER ORDERED t h a t any f u r t h e r attempts t o f i l e herein any documents s u b s t a n t i a l l y similar or identical t o those dismissed o r stricken by t h i s Combined Order will be considered contemptuous unl e s s preceded by a petition seeking leave of t h i s Court t o so f i l e , and an order granting such leave. "VI. "Upon the Court Is own motion IT IS HEREBY ORDERED t h a t t h e demand or demands f o r jury t r i a l f i l e d herein a r e hereby s t r i c k e n . The court is exercising i t s equity j u r i s d i c t i o n over these e n t i r e proceedings and i t i s therefore fundamental t h a t there i s no r i g h t t o a jury t r i a l f o r any party. The court may well exercise i t s discretion t o c a l l an advisory jury f o r any o r a l l factual questions upon which i t would d e s i r e assistance in determination. Due and s u f f i c i e n t notice will be given t o a l l p a r t i e s i n t h a t event." The foregoing combined order says i t a l l . The brief of appellants on appeal continues t o use language, the nature of which the d i s t r i c t judge described as "absurd i n nature, i r r e l e v a n t and scandalous in content and basely vituperative in tone." The appellants a s s e r t three issues on appeal, which are s t a t e d a s a b s t r a c t questions and do n o t point out any e r r o r on the part. of t h e t r i a l judge. Essentially a s i n g l e issue i s determinative of the appeal. That is whether an order such as t h i s s t r i k i n g portions of a pleading a s being f r i v olous, impertinent and immaterial is appealable. W hold t h a t i t i s not. e The materials stricken have t o do w i t h matters previously ruled upon in Cause No. 12387 heretofore referred t o . In t h a t opinion we s a i d : "Extensive proceedings followed r e s u l t i n g i n a s h e r i f f ' s s a l e of the pledged corporate stock t o p l a i n t i f f and a judgment f o r p l a i n t i f f on October 2 , 1367, by the d i s t r i c t court approving the s a l e of the stock, although i t allowed the corporation t o prevent a f o r f e i t u r e of i t s stock i f i t s terms of i t s Augu s t 22, 1966 'purchase of indebtedness' agreement made i n open court were complied w i t h by October 10, 1967. This compliance never occurred so the judgment became f i n a l . "From this judgment an appeal t o this Court was taken by defendants b u t never perfected. "Up t o t h i s point i t is t o be noted t h a t p e t i t i o n e r s and appellants were n o t p a r t i e s t o this l i t i g a t i o n , nor i n any other causes of action being Nos. 8073 and 8221, Pondera County, both of which involve the appointment of a receiver f o r the Carl 0. Iverson Corporation and operation of the corporate properties. "There i s a cause of action however in which p e t i t i o n e r s and appellants a r e involved as defendants, and t h a t i s cause No. 8509, Pondera County wherein the receiver of the Carl 0. Iverson Corporation is seeking t o have s e t aside a 'contract f o r deed' executed on July 17, 1968 by purported o f f i c e r s of the corporation a s s e l l e r t o the petitioners as buyers, and a 'farm operation ' agreement between the corporation and p e t i t i o n e r s and appellants dated June 16, 1967. "Now going back t o t h e original action, cause No. 7779, from which t h i s appeal found i t s beginning. "Commencing w i t h July 1972, p e t i t i o n e r s and appel 1a n t s began f i l i n g i n t h i s proceeding certain documents now known as 'Bouma papers'. These papers consist of an a f f i d a v i t of d i s q u a l i f i c a t i o n , p e t i t i o n t o s e t aside judgment of October 2, 1967, motion f o r s t a y of proceedings, a f f i d a v i t , application f o r oral hearing on motion, motion f o r advisory jury, brief in support of motion, motion t o s t r i k e nonparties postjudgment, statement f o r the record and brief i n support of motion t o s t a y proceedings, a1 1 f i l e d pro s e . "On August 29, 1972 the d i s t r i c t court entered i t s order, f i l e d August 30, 1972, finding: " ' a l l of said f i l i n g s of said Ralph and Mrs. Ralph Bouma in said cause a r e frivolous, e n t i r e l y without merit, and t h a t Ralph Bouma and Mrs. Ralph Bouma a r e not e n t i t l e d t o any r e l i e f of whatever nature in said cause, and a r e strangers into said cause without any r i g h t whatever t o be heard or otherwise p a r t i c i p a t e t herei n ; " 'NOW THEREFORE *** " ' * * * they a r e hereby stricken from the above e n t i t l e d cause as frivolous'. "From this order p e t i t i o n e r s and appellants have appealed t o t h i s Court and from the date of f i l i n g the notice of appeal, September 12, 1972, a r e f i n a l l y , publicly and openly represented by counsel. "We have experienced l i t t l e d i f f i c u l t y i n finding t h a t t h e t r i a l court was correct and we so hold." From the foregoing i t i s c l e a r t h a t the matters stricken had been ruled upon before; and aside from t h e i r lack of relevancy were res judicata. Treat- ing Boumas' pleadings stricken a s an attempt t o a1 lege fraud, Ralph Bouma's only i n t e r e s t claimed was a l i e n f o r farm crop services which he claimed t o have a t one time rendered the corporation. N claim was alleged i n any event. o I t follows t h a t an attempted appeal from an order s t r i k i n g portions of t h e pleadings i s improper both on the merits and procedurally. In Volume 2 A of Moore's Federal Practice, p. 2424, i n discussing Rule 12, Motions t o S t r i k e , the author s t a t e s : "* * * a mass of evidence unnecessarily pleaded, legal conclusions argued a t length, paragraphs seeking t o r e t r y a previous a c t i o n , or obviously sham matter may be s t r i k e n . " An This f i t s the s i t u a t i o n here. order s t r i k i n g such matters i s n o t appealable prior t o f i n a l judgment. See S t a t e ex r e l . G . F. Nat. Bk. v . D i s t r i c t Court, 154 Mont. 336, 340, 463 P.2d 326. This leaves a s the only remaining issues the d i s t r i c t c o u r t ' s order dismissing the stockholders of Larry C . Iverson, Inc. as determined in Pondera County Civil Action 8221; and dismissing as t o Lightners. affirm. In a l l respects we The order previously quoted is adopted i n i t s e n t i r e t y . W have not d e a l t w i t h other matters appearing i n the b r i e f s such as e charge of c o n f l i c t of counsel, charges against other p a r t i e s and counsel. l i k e t h e d i s t r i c t judge, have s t r i v e n t o remain objective. t h e record and caution counsel f o r appellants. We, W have examined e A word t o the wise should be sufficient. Bouma is i n possession of the productive farm land, harvesting t h e crops therefrom; and it may be that the trial judge will have to fashion procedures to force the issue to trial on the merits. Contempt powers, impoundment of the funds derived from crops and other procedures should be sufficient for the trial judge to force the issue to trial. Having examined the record, the issues and all other matters, we affirm the order. (Justice Wk concur: +- .* r Chief Justice .

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