Fraser v. Clark

Montana Supreme Court

Fraser v. Clark

282 P.2d 459, 129 Mont. 56, 1955 Mont. LEXIS 30

CourtMontana Supreme Court

DecidedApril 5, 1955

Docket9522

StatusPublished

Cited by8 cases

This text of 282 P.2d 459 (Fraser v. Clark) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fraser v. Clark, 282 P.2d 459, 129 Mont. 56, 1955 Mont. LEXIS 30 (Mo. 1955).

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Opinions

[57]*57MR. CHIEF JUSTICE ADAIR:

This is an appeal from an order refusing to dissolve an attachment.

On February 18, 1954, R. B. Fraser and Rosabelle Fraser, plaintiffs, commenced in the district court of Yellowstone County this action against E. C. Clark and Evan Owens, defendants, to recover a money judgment for $28,500 with interest as well as interest on a larger sum alleged to be owing to plaintiffs from the defendants.

At the time of issuing summons the plaintiffs obtained a writ of attachment out of the district court of Yellowstone County and on February 20, 1954, by virtue thereof personal property belonging to defendants and situate in Fergus County was seized. The property attached then consisted of approximately 394 head of thoroughbred Hereford cattle, 11 head of horses, various automobiles, trucks, tractors and other ranch machinery and equipment.

On defendants’ timely motion the Honorable Guy C. Derry, judge presiding in the district court of Yellowstone County, ordered a change of venue to the district court of Fergus County which order, on appeal, this court affirmed. See Fraser v. Clark, 128 Mont. 160, 273 Pac. (2d) 105.

On defendants’ petition the Honorable Stewart McConochie, the duly elected judge of the district court of Fergus County, on August 6, 1954, made an order releasing from the attachment a part of the property consisting of 36 head of dry 2 year old heifers, 11 head of horses and certain automobiles, trucks, tractors and ranch machinery and equipment such release being on the ground that the value of the property attached is greatly in excess of the amount for which the levy should properly have been made.

Thereafter on September 14, 1954, on defendants’ petition, the district court issued an order returnable on a day certain directing plaintiffs to show cause why the attachment should not be dissolved.

[58]*58On September 21, 1954, plaintiffs disqualified Judge McConochie whereupon the Honorable Victor H. Fall, one of the judges-of the district court of the first judicial district, was called in,, assumed jurisdiction and after hearing had, disallowed defendants ’ petition to discharge the attachment. Defendants, without-success, attempted to have this court review such order in an original proceeding for supervisory control. See State ex rel. Clark v. District Court, 128 Mont. 526, 278 Pac. (2d) 1000.

Thereupon defendants appealed from the order refusing to-dissolve the attachment as is provided for in R. C. M. 1947,. sec. 93-8003, subd. 2, see. 93-8004, subd. 3, and sec. 93-8005.

On defendants’ application and because of the absence from Montana of the Honorable Victor H. Fall, the district judge-presiding at the hearing on defendants’ motion to dissolve the-attachment, this court on February 10, 1955, appointed Aaron R. Shull, Esq., a member of the bar of this court, as referee to act in the place and stead of Judge Fall in the preparation and certification of the record on appeal herein.

On Motion to Strike. On February 21, 1955, the transcript on appeal, duly certified by such referee was filed in the office of the clerk of this court following which the plaintiffs interposed a motion for an order striking the transcript from the records and files of this court urging that such transcript was not prepared, certified or served as provided either by statute, court rule or court order and claiming that plaintiffs were afforded “no opportunity to propose amendments to or to raise-objections to any portion of this said purported record on appeal.” Plaintiffs have not filed any suggestion of diminution of record, Court Rule VI, subd. 5, nor have they otherwise challenged the accuracy of the certified report of the proceedings had before Judge Fall and having failed to show that any prejudice has or will result to them through the acceptance by this-court of such transcript, plaintiffs’ motion to strike same is disallowed.

On the Merits. The defendants, E. C. Clark and Evan Owens, owners of a large herd of purebred Hereford cattle in Nebraska, [59]*59were desirous of acquiring sufficient suitable land in Montana to accommodate the needs of their herd which defendants were anxious to move to Montana.

The plaintiff, R. B. Fraser, claimed to own certain ranch land in Fergus County, Montana, suitable to meet defendants’ requirements and one Emery Lupton of Western Inc. & Morg. Co., acting as the purported agent of Fraser contacted defendants following which defendants paid the sum of $15,000 as a deposit and earnest money on the total purchase price of $150,-000 for lands, not described by section, township and range, but situate in Fergus County and designated as the “R. B. (Bob Fraser) Ranch”, the transaction being evidenced by an instrument in writing signed by the parties and reading:

[60]

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