No. 90-540
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
AUGUSTA GEIGER,
Plaintiff and Appellant,
-vs-
DEPARTMENT OF REVENUE OF THE
STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable H. R. Obert, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Houtz, Forsyth, Montana
For Respondent:
R. Bruce McGinnis, Tax Counsel, Dept. of Revenue,
Helena, Montana
ED Submitted on Briefs: July 16, 1991
AUG 2 7 3999
i&
d: August 27, 1991
Filed:
L'A 3)mitL
CLERK OF SUPREME COURl
S'TATE OF MONTANA
4
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
September 27, 1990 the District Court of the Seventh Judicial
District, Dawson County issued an order dismissing the plaintiff's
original complaint. We reverse and remand.
The primary issue for review is restated as follows: Did the
court mistakenly dismiss the original complaint?
September 4, 1984, the plaintiff, Augusta Geiger (Geiger),
filed a complaint against the Dawson County Commissioners and the
Montana Department of Revenue (DOR). On September 27, 1984, the
DOR filed a motion to dismiss and supporting brief. The court took
no action on the motion to dismiss at that time.
The trial court dismissed the Dawson County Commissioners from
this action on July 7, 1988. The dismissal occurred as a result
of a successful appeal by the Dawson County Commissioners, and a
favorable ruling in Cantwell v. Geiger (1987), 228 Mont. 330, 742
P.2d 468.
On February 14, 1990, the District Court granted permission
to amend the complaint and Geiger filed and served the amended
complaint. February 21, 1990, following this filing the DOR moved
the court to reconsider its order allowing Geiger to amend. Both
parties submitted briefs; however, the court took no action on the
issue at that time.
July 11, 1990, along with counsel, the court signed a pre-
trial order setting out 39 contentions on behalf of the plaintiff
and 53 contentions on behalf of the defendant. The pre-trial order
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stated that it superseded the pleadings and "that all pleadings
herein shall be amended to conform to this pre-trial order."
Finally, on September 27, 1990, after a hearing, the court
dismissed the original complaint based on the DORIS motion to
dismiss dated September 27, 1984. The record does not indicate
that the court considered the amended complaint or the pre-trial
order which took the place of the pleadings.
We conclude that the District Court acted inappropriately when
it dismissed Geiger's case in total disregard of its previous
orders. We hold that it was error for the District Court to
dismiss the original complaint.
Reversed and remanded for reconsideration in a matter
consistent with this opinion.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
We Concur:
-7j4[L2g Chief Justi
Justices
Justice R. C. McDonough did not participate in this decision.