No. 83-530
IN THE SUPREFE COURT OF THE STATE OF MONTANA
1984
GERALDINE McLAUGHLIN and
NORTHWEST LIMITED, INC. ,
Plaintiffs and Appellants,
VS.
DALE P. HART, GAIL E HART,
JOHN R. ZURMUEHLEN and ANNIE
R. ZURMUEHLEN,
Defendants and Respondents.
Appeal from: District Court of the Fourth Judicial District
In and for the County of Missoula
Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Theodore P. Cowan, Missoula, Montana
For Respondent:
Terry Wallace, Missoula, Montana
Submitted on Briefs: April 19, 1984
Decided: November 1, 1984
Filed: bf
!N - 1 1984
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal by Geraldine McZaughlin and Northwest
Lj-mited, Inc. from an order of the District Court, Fourth
Judicial District, Missoula County, granting the motion of
the defendants to dismiss the complaint.
The facts underlying this appeal are complex, and need
2ot he stated at length here. It is enough to say that on
September 20, 1983, in cause no. DV-790692, a separate
action from the cause appealed herein, in the Missoula County
District Court, the Hon. Gordon R. Bennett, judge presiding,
determined that all transfers of property made by James H.
Sadler and Darla C. Sadler, his wife, to Geraldine
KcLaughlin, and/or Northwest Limited, Inc. were fraudulent
conveyances and therefore void. Geraldine McLaughlin and
Northwest Limited, Inc. were not pa-rties to the action in
cause no. DV-790692.
On October 7, 3 982, Geraldine McLaughlin and Northwest
Limited, Inc. commenced this action, cause no. 56184 in the
District Court, against the defendants na-med in this appeal
by filing a complaint alleging that the presiding judge in
cause no. DV-790692 had entered the order of September 20,
1982, at a time when Geraldine McLaughlin and Northwest
L,imited, Inc. were not parties to the other action; that Dale
P. Hart and Gail E. Hart, in proceedings in execution under
the other cause of action were intending to sell at sheriff's
sale all of Darla C. Sadler's right in and to 63,500 shares
of common stock in the new Park Hotel, Inc., a Montana
corporation; that said transferred shares of stock from Darla
C. Sadler to Geraldine McLlaughlin had been determined to be
fraudulent in a cause where Geraldine McLaughlin and
Northwest Limited, Inc. were not parties to the action; and
said McLaughlin and Northwest Limited, Inc. prayed for a
declaratory judgment determining the rights of the plaintiffs
and the defendants in and to the said shares of stock.
On October 7, 1982, the Hon. Douglas C. Harkin ordered
that. the complaint filed, no. 56184, by Geraldine KcLaughlin
and Northwest Limited, Inc. be consolidated with the cause of
action no. DV-790692 in the Missoula District Court. Judge
Harkin recused himself, and invited the Hon. Gordon R.
Bennett of the First Judicial District to assume
jurisdictj-on, which jurisdiction Judge Bennett. assumed on
October 13, 1982.
On October 27, 1962, the defendants, through their
counsel, moved to dismiss the plaintiffs' complaint upon the
ground that the complaint failed to state a cause of action
upon which relief could be granted. Counsel for the
defendants filed a brief in support of the motion on November
1, 1982. No brief in support of the complaint or opposinq
the motion was filed by the plaintiffs. On September 26,
1983, Judge Bennett, on the basis that no responsive brief
had been filed by the plaintiffs as required by Local Rule 4,
Missoula County District Court, and Uniform Rule 11, of the
Montana Supreme Court, ordered that plaintiffs' complaint be
dj smissed with prejudice.
We affirm the order of the District Court dismissing
plaintiffs' complaint on the grounds that the plaintiffs
failed to comply with Uniform Rule I1 promulgated by this
Court and with Rule 4 of the local rules promulgated by the
Missoula County District Court.
IJnj-form Rule I1 applies to all District Courts in the
State of Montana, and it provides in pertinent part:
"Upon serving and filing a motion under Rule 12,
M.R.Civ.P., or within 5 days thereafter, the moving
party shall serve and file a brief. The adverse
party shall have 10 days thereafter within which to
serve and file an answer brief. A reply brief may
be served and filed within 10 days thereafter.
Upon the filing of briefs, the motion shall be
deemed made and submitted and taken under
advisement by the Court, unless the Court orders
oral argument on said motion. The Court may in its
discretion order oral argument either on its own
motion or upon an application contained in the
brief of either party. Each motion upon which oral
argument is so ordered shall be set by the clerk
for hearing on the first Law and Motion Day
occurring more than 10 days after the date of the
order for oral argument in the county wherein said
motion is pending.
"Failure to file briefs within the prescrihed time
shall subiect said motion to summary ruling, and a
failure to file a brief by the moving party shall
be deemed an admission that in the opinion of
counsel, the motion is without merit, and such
failure to file such a brief by the adverse party
shall be deemed an admission that in the opinion of
counsel, the motion is well taken.. . ."
A similar provision has been adopted as part of the
loca.1 rules of the Missoula County District Court.
The power of the Montana Supreme Court to make rules of
practice and procedure for all other courts, including
District Courts, is found in the state Constitution. Art.
VII, 2 (3), 1972 Mont. Const. The power of district courts
to make rules governing practice not inconsistent with the
Rules of Civil Procedure or rules prescrihed by the Montana
Supreme Court is found in Rule 83, M.R.Civ.P.
Uniform Rule I1 is binding upon the practice before all
District Courts in the State of Montana; local Rule 4 of the
Fourth Judicial District is binding upon the practice before
that District Court. State ex rel. Magnuson v. District
Court, First Judicial District (1951), 125 Mont. 79, 231 ~ . 2 d
941; Sullivan v. Board of County Commissioners of Silver Bow
County (1950), 124 Mont.. 364, 224 P.2d 135. Such rules, when
not conflicting with any statute, have the effect of law.
Roush v. District Court, Eighth Judicial District ( 1 9 3 5 ) , 101
Mont. 166, 53 P.2d 96.
Both the courts and counsel should be able to rely on
duly adopted court rules which are made to be followed both
by the court and counsel, and not ignored. Shore v. Chester
(1974), 40 Ohio App.2d 412, 321 N.E.2d 614.
Thi s cause languished in District Court for
approximately 11 months after the filing by defendants of
their brief supporting their motion to dismiss the complaint.
In that period of time, no response was made by pl-aintiffs
supporting the cornplai-nt. In such circumstances, Uniform
Rule 11, and Local Rule 4 of the District Court applied, and
the District Court properly dismissed by summary ruling the
plaintiffs complaint.
A£ firmed.
e. ALOL
Justice
We Concur:
Justices