No. 92-171 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

DONALD C. COWLES, 

Plaintiff and Respondent, 

JEAN SHEELINE, PAUL C. SHEELINE, 

FRANCIS ELDREDGE and the heirs and 

devisees of NELLE B. COX, PAUL D. 

SHEELINE, SAMUEL D. STEVENS, GEORGE 

H. POORE, JOHN F. TYLER, WENDELL L. 

JACQUITH, ALTON W. ELDREDGE, CYRUS 

B. MENDENHALL a/k/a C.B. MENDENHALL, 

SUSAN A. MENDENHALL, NATHANIEL STEVENS, 

ELIZABETH P. STEVENS, ETHAN H. COWLES, 

BESSIE COWLES, ALL STOCKHOLDERS AND 

SUCCESSORS IN RIGHT, TITLES AND 

INTEREST TO THE COWLES MINING CO. INC., 

a Montana Corporation, and ALL PERSONS 

KNOWN OR UNKNOWN, CLAIMING OR WHO 

MIGHT CLAIM RIGHT, TITLE, ESTATE OR 

INTEREST OR LIEN OR ENCUMBRANCE UPON 

THE REAL PROPERTY DESCRIBED IN THE 

COMPLAINT OR ANY THEREOF ADVERSE TO 

PLAINTIFF'S TITLE THERETO, WHETHER SUCH 

CLAIM OR POSSIBLE CLAIM BE PRESENT OR 

CONTINGENT, INCLUDING ANY OF DOWER, 

INCHOATE, OR ACCRUED, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Sweet Grass, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard W. Josephson, R. Mark Josephson, Josephson 

& Fredricks, Big Timber, Montana 

For Respondent: 

J. David Penwell, Bozeman, Montana 

Submitted on Briefs: February 4, 1993 

Filed: 

Decided: June 10, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, Jean Sheeline, herein called defendant, appeals the 

order of the District Court of the Sixth Judicial District, Sweet 

Grass County, in an action to quiet title to mining claims near 

Cooke City, Montana. The District Court awarded Donald C. Cowles, 

herein called plaintiff, a 50% ownership, and defendant the 

remaining 50% ownership in the assets of Cowles Mining Company. In 

a separate appeal, defendant also appeals the District Court's 

order denying her Motion for Relief of Judgment based upon newly 

discovered evidence. These have been consolidated into this one 

appeal. We affirm. 

The issues presented for our review are restated as follows: 

1. Did the District Court err in determining that plaintiff 

and defendant each owned 50% of the stock in Cowles Mining Company? 

2. Did the District Court err in admitting certain testimony 

of Don C. Cowles, Jr.? 

3. Did the District Court err in awarding costs to plaintiff? 

4. Did the District Court err in not granting defendant's 

motion for relief of judgment based on newly discovered evidence? 

Plaintiff brought this action to quiet title to real property 

owned by Cowles Mining Company (the Company), a Montana corporation 

which was dissolved by operation of law in 1982. The disputed 

property includes ten patented mining claims encompassing an area 

of approximately 176 acres. 

Cowles Mining Company was incorporated in Montana in 1902. 

The original principal shareholders were plaintiff's grandfather, 

2 
Ethan H. Cowles (E. H. Cowles) , and Nathaniel Stevens. E. H. 

Cowles and Nathaniel Stevens each transferred five patented mining 

claims to the Company. A minimal number of shares were issued to 

several other persons. The Articles of Incorporation authorized 

the Company to issue one million shares of $1.00 par value common 

stock. 

The 1902 corporate charter limited the Company to forty years 

of existence. Although the Company mined gold in its early years, 

operations ceased when a stamp mill it had constructed was 

destroyed by fire in 1904. Nonetheless, the original charter was 

extended in 1946 for an additional forty years. Cowles Mining 

Company retained ownership of the same ten patented mining claims 

throughout its existence. 

In order to dispose of plaintiff Cowles' claim against 

defendants, the District Court was required to analyze and evaluate 

a complex maze of confusing and incomplete testimony and exhibits 

dating back to 1902. Although numerous defendants are named in 

this action, Jean Sheeline is the sole defendant claiming shares in 

the Company. She claims to be the successor to shares representing 

Nathaniel Stevens' stock ownership. She claims this ownership 

through a number of different parties, including her husband, Paul 

D. Sheeline. E. H. Cowles' stock ownership in the Company passed 

to Nelle Cox, plaintiff's aunt, and then to plaintiff. 

Plaintiff testified that he examined the Company stock book in 

Paul D. Sheelhe's Boston office in 1967 and made an incomplete 

handwritten list of transactions dating from 1902 to 1920. The 
same records were examined by Paul C. Sheeline, defendant's 

stepson. Defendant testified that the stock book had been lost or 

destroyed and was therefore not available in evidence. 

Other evidence established that the original owners, E. H. 

Cowles and Nathaniel Stevens, intended that each would own 50% of 

the controlling interest in the Company with 5000 of the 1,000,000 

shares to be split among the corporate attorney and several other 

officers. At trial, plaintiff was the only person who presented 

stock certificates. Plaintiff's certificates represented 144,500 

shares of Company stock. 

The evidence established that a number of E. H. Cowles' share 

certificates were lost in a 1917 fire in Livingston, Montana. No 

replacement shares were ever issued. Evidence also established 

that E. H. Cowles had turned in shares to Stevens as his share of 

the expense to construct a new stamp mill. This stamp mill was 

never built and there was no evidence to demonstrate the share 

certificates were returned to E. H. Cowles. 

E. H. Cowles was active in the Company operations. He and 

Nathaniel Stevens had been schoolmates in their youth and remained 

friends thereafter. Nathaniel Stevens' involvement in the Company 

appears to be that of investor and controller of corporate records. 

Evidence established that Stevens was a wealthy industrialist who 

owned textile companies which later merged and became J. P. Stevens 

Co., a multi-million dollar corporation. The Montana gold mining 

company, which appears to be the major effort and drain of E. H. 

Cowles' financial resources during his lifetime, was only one of 
many investments made by Stevens. 

The record contains numerous correspondence records saved by 

E. H. Cowles, his daughter Nelle Cox, and plaintiff which indicate 

their continuing efforts to either sell the Company, interest 

investors and exploratory activities, or purchase the remaining 

shares from Stevens' successors in interest. 

George Naylor, an attorney of the firm of Tyler, Eames and 

Reynolds, one-time attorneys for Stevens and the Company, testified 

that Nathaniel Stevens wanted to dispose of the stock for estate 

tax purposes prior to his impending death and that Paul D. Sheeline 

acquired the shares from the Stevens family in 1946 for the sum of 

one dollar. Nathaniel Stevens died in 1946. No other evidence was 

presented to establish the selling price. Paul D. Sheeline died in 

1979. 

Paul C., Jean, and William Sheeline and George Naylor 

testified about what happened to all corporate records. Paul C., 

Jean and William believed that they were destroyed when the Paul C. 

Sheeline family moved from the house where the records had been 

kept in an attic box. George Naylor testified that he thought many 

of the records had been destroyed by his office on his instruction 

so as to save storage space. 

Plaintiff, 76 years old at the time of trial, and his 

predecessors in interest, established their continuing interest in 

the mining company and demonstrated continuing efforts regarding 

the property throughout the years of their ownership. E. H. Cowles 

paid the taxes on the property until his death in 1938. After that 
time, taxes were paid by a lessee, Paul D. Sheeline, Frances 

Eldredge, Jean Sheeline, and the Boston law firm of Tyler, Eames 

and Reynolds. 

The District Court determined that plaintiff and defendant 

each owned 50% of the stock of the Company. The District Court 

stated its reasons for the decision to award each party 50% as 

partly because defendant was unable to produce records and partly 

because the court believed that her predecessors had attempted to 

"squeeze Cowles out and arbitrarily deprive them of their stock and 

their interest in the mining claims . . . and [defendant cannot be] 

permitted to profit by such legal maneuvering and manipulation by 

her predecessors." 

The court's order dated March 3, 1992, awarded 50% to each 

party. On March 22, 1992, defendant found what she claims are 

numerous and significant records of Cowles Mining Company, 

including actual stock certificates issued in the names of Paul D. 

Sheeline, Paul C. Sheeline and Alton Eldredge totalling 797,500 

shares. These records also included stock transfer records, 

correspondence and other documents demonstrating stock ownership 

which defendant claims may complete the list made by plaintiff in 

1967. The stock book, however, was not among these records. 

On May 4, 1992, defendant filed a Rule 6O(b), M.R.Civ.P., 

motion for relief from judgment based on newly discovered evidence. 

On July 6, 1992, which was beyond the time allowed by Rule 60(c), 

M.R.Civ.P., for ruling on the motion, the District Court issued an 

order denying this motion, with an explanation of its reasons for 
denial. The defendant appealed the denial of this motion. 

I. 

Did the District Court err in determining that plaintiff and 

defendant each owned 50% of the stock in Cowles Mining Company? 

Defendant contends that the District Court could only reach a 

result that plaintiff owns 50% of the former assets of the Company 

by weaving an unsubstantiated tale of deception, illegalities and 

fraud and by utterly ignoring evidence. She further contends that 

the District Court disregarded and misapprehended ordinary common 

knowledge and understanding of corporate dealings and proceedings. 

Defendant assigns clear error to at least 17 specific findings of 

fact and contends that nearly all of the court's 56 findings are 

incorrect. 

This Court will affirm a district court's findings and 

conclusions unless they are clearly erroneous. Interstate Prod. 

Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 

1287. In DeSaye, this Court adopted the following three-part test 

to determine if findings are clearly erroneous: (1) first, the 

Court will review the record to see if the findings are supported 

by substantial evidence; (2) if the findings are supported by 

substantial evidence, we will determine if the trial court has 

misapprehended the effect of the evidence; and (3) if both 

substantial evidence exists and the effect of the evidence has not 

been misapprehended, whether a review of the record leaves the 

Court with the definite and firm conviction that a mistake has been 

committed. DeSave, 820 P.2d at 1287. Substantial evidence is 
evidence that a reasonable mind might accept as adequate to support 

a conclusion; it consists of more than a scintilla of evidence and 

it may be somewhat less than a preponderance of evidence. Barrett 

v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080. 

Defendant first objects to the general finding which relates 

to the amount of stock that E. H. Cowles owned when he died in 1938 

and the court's conclusion that E. H. Cowles owned 50% of the stock 

at that time. Defendant contends that the specific findings do not 

recognize the fact that E. H. Cowles at times sold shares and 

transferred shares to the corporation in exchange for new share 

certificates. Plaintiff contends that the evidence supports the 

court's ruling and, more importantly, that the evidence did not 

support defendant's position. We agree with plaintiff. 

The District Court based its decision to award 50% of the 

assets of the defunctmininq corporation partially on exhibits from 

1902 which demonstrate Nathaniel Stevensf and E. H. Cowlesf intent 

that each own equal shares, and partially by other evidence, 

including plaintiff's notes from 1967 and the certificates and 

letters in plaintiff's possession. The documents indicate that 

497,500 shares were issued to E. H. Cowles and that the same number 

were to be issued to Nathaniel Stevens. The District Court found 

that E. H. Cowles sent certificates in as security for the stamp 

mill which was never built and that there was no evidence of the 

return of such certificates to him. The District Court also 

determined there was no evidence E. H. Cowles ever sold any of his 

stock. After a careful reveiw of the record. we affirm the 
conclusion of the District Court that E. H. Cowles did not dispose 

of any of his stock in the Company after its original issue. 

Defendant next contends that the District Court erred in 

finding that stock Certificate No. 84 was illegal and that the 1946 

corporate proceedings were fraudulent and illegal. There is 

substantial evidence questioning the validity of Certificate No. 84 

issued around 1920 to Nathaniel, Samuel and Moses Stevens for 

797,500 shares. That evidence indicates there was an issuance of 

stock exceeding the authorized limit of 1,000,000 shares. 

Defendant's claim is based upon Certificate No. 84. 

The evidence established that plaintiff went to Boston in 

early 1946 and spoke to Stevens' attorney, George Naylor. At that 

time he tried to acquire other shares in the Company. He also 

spoke with Paul D. Sheeline and communicated his interest in 

acquiring shares to Paul D. Sheeline. Naylor and plaintiff 

discussed a general figure of $500-600 for the Stevens shares in 

the Company. Naylor later communicated to plaintiff that a better 

offer had been accepted. This better offer turned out to be $1.00 

from Naylor's friend, Paul D. Sheeline. The District Court 

concluded that plaintiff's 1946 visit sparked Paul D. Sheelinels 

interest in the Company. 

After plaintiff's 1946 visit, a corporate reorganization took 

place. The District Court found "there are numerous facts making 

it highly suspect that the purported shareholder meetings ever 

occurred, or if they did, whether they were lawful." There is no 

evidence that Nelle Cox ever received notice of these meetings, 
despite Paul D. Sheeline's knowledge of her stock ownership as 

evidenced by his correspondence with her. Plaintiff was not 

notified of any of the 1946 meetings, even though he was well known 

to counsel for the defendant and operated a drug store within one 

block of the law offices in Livingston. In addition, plaintiff 

filed a post-trial affidavit stating that he checked the 

appropriate newspaper for publication of a notice of shareholdersf 

meeting and no notice appeared 

The District Court expressly found the minutes of the 1946 

meetings to be "unreliable and inaccurate." The court stated: 

36. Under these circumstances, it would be 

unconscionable, if not fraudulent, to the Cowles family 

to give said minutes legal effect as to the number of 

shares of stock then outstanding or who the lawful owners 

were, as to do so would be to condone an apparent attempt 

to squeeze Cowles out and arbitrarily deprive them of 

their stock and their interest in the mining claims. 

Such events occurred long before Jean Sheeline became 

involved, and she is not responsible for them, but 

neither can she be permitted to profit by such legal 

maneuvering and manipulation by her predecessors. 

Naylor stated that the reason for selling the stock to Sheeline 

after plaintiff's 1946 visit was to get the stock out of Nathaniel 

Stevens1 very substantial estate before he died. Stevens in fact 

died shortly after that time. The court added the following 

information about Naylor's testimony: 

37. . . . [Blut sale to Don Cowles would have 

accomplished that. Whatever the reason, it would have 

been customary to give the stockbook and all the 

corporate records to Sheeline, but Naylor went on to say 

they were destroyed, which makes no sense. As 

hereinafter indicated, Paul was in fact later found to 

have possession of the stockbook by plaintiff. Naylor 

also testified at one point there was an offer of 
$250,000 per claim for the property, but yet he arranged 

sale to Sheeline for $1.00, and stated that he had no 

idea if there was one certificate, numerous ones, or the 

number of shares they represented. These inconsistencies 

render Naylor's testimony of little value. 

We conclude the District Court carefully reviewed the evidence 

and based its finding that the proceedings were illegal on the 

conclusions that Certificate No. 84 was illegal and that Nelle Cox 

and plaintiff were not informed or aware of these proceedings. The 

record contains substantial evidence to support this finding. 

Defendant also contends that the court found that no evidence 

existed to prove the number of shares owned by defendant or her 

predecessors. Clearly, the court determined that defendant 

succeeded to the Stevens' interest and this is evidenced by its 

award to her of 50% of the ownership in the claims. Most of the 

evidence presented to establish defendant's ownership was oral 

testimony. She presented no written evidence of ownership other 

than the minutes of the 1946 meetings. The only other evidence to 

establish that defendant owned shares is George Naylor's testimony 

and the testimony of the Sheeline family. We conclude the District 

Court's findings reflect its consideration of this as well as the 

interests of the Stevenses to which she claims to have acquired. 

This Court has thoroughly reviewed the record to determine 

that the numerous findings of the District Court are supported by 

substantial evidence. Applying the second and third factors of the 

DeSaye test, we further conclude that the District Court has not 

misapprehended the effect of the evidence and we are not left with 

a firm conviction that a mistake has been made. 
We hold that the District Court's findings relative to stock 

ownership and the 1946 proceedings to reorganize the corporation 

are not clearly erroneous. 

Did the District Court err in admitting the testimony of Don 

C. Cowles, Jr.? 

Defendant contends that the District Court should not have 

admitted Don C. Cowles, Jr. 's testimony and exhibits because he was 

not disclosed as an expert witness, he was not qualified as either 

an expert or a lay witness to give the testimony he presented and 

the exhibits he prepared and testified about were presented for the 

first time at trial. 

Defendant responded to her receipt of Don C. Cowles, Jr. 's 

exhibits on the first morning of the trial with a formal Memorandum 

of Objection to his testimony and exhibits. Defendant contends 

that the District Court allowed the witness to determine how many 

shares were issued and who owned them, which is expert opinion 

testimony on the ultimate issue in the case and invaded the 

province of the trier of fact. The District Court responded as 

follows to that objection: 

THE COURT: Well, I'm going to let Mr. Penwell 

proceed in part, and I don't know just what questions he 

will ask, but if it will save the Court pawing through 

several hundred exhibits to see that one letter refers to 

two shares and another one to ten shares and so forth, to 

trace the title to them, you don't have to be an expert 

to do that as far I can see, and so I may permit some 

answers. Let's see what Mr. Penwell asks him. 

Defense counsel then asked if he could have a continuing objection. 
The District Court denied this request and ordered him to make 

objections as the testimony progressed. 

Part of Don C. Cowles, Jr. 's testimony involved his 

interpretation and his typewritten copy of his father's handwritten 

notes from the Company stock book, which incorporated information 

from other exhibits which had been introduced to prove plaintiff's 

ownership interest. Defendant subsequently objected to the 

admission of Exhibits 78 and 79. Exhibit 78 purported to determine 

which share certificates were reissued in Certificate 84, a 

certificate which the court found was illegal. Exhibit 79 was a 

document prepared by Don C. Cowles, Jr. which summarized 

plaintiff Is position on the total number of shares as exceeding the 

1,000,000 authorized. 

Defendant contends that Rule 602, M.R.Evid., prohibits the lay 

witness from testifying to matters not within his personal 

knowledge and that Don C. Cowles, Jr. was allowed to testify to 

such matters. The result was that the court allowed him to testify 

as an expert and, thus, abused its discretion. Plaintiff contends 

that Don C. Cowles, Jr. did not testify as an expert and that the 

exhibits served no function other than as demonstrative evidence, 

admitted by the court "as aids to the courtw to clarify Exhibit 68, 

the notes of plaintiff, Don Cowles, Sr., and to determine totals of 

stock ownership. 

Rules 602, M.R.Evid., limits a witness1 testimony to his 

personal knowledge. Further, I1a lay witness may even give an 

opinion on an ultimate factual issue if it complies with the 
foundational requirements in Rule 701, M.R.Evid., however, the 

opinion testimony must be 'confined to matters of fact.'" First 

Bank (N.A.) -- Billings v. Clark (l989), 236 Mont. 195, 202, 771 

P.2d 84, 88 (quoting In re the Estate of Smith (1988), 230 Mont. 

140, 148, 749 P.2d 512, 517; and Rule 704, M.R.Evid.). 

Clearly, the court did not allow Don Cowles, Jr. to testify as 

an expert witness; rather, the court permitted Cowles to proceed to 

testify and determined the propriety of plaintiff's counsel's 

questions as each was asked. Rule 701, M.R.Evid., provides: 

Rule 701. Opinion testimony by lay witnesses. 

If the witness is not testifying as an expert, the 

witness1 testimony in the form of opinions or inferences 

is limited to those opinions or inferences which are (a) 

rationally based on the perception of the witness and (b) 

helpful to a clear understanding of the witness1 

testimony or the determination of a fact in issue. 

The record demonstrates that the court allowed Cowles to testify 

about the summaries he had made relating to the other exhibits in 

evidence and admitted his exhibits for demonstrative purposes only. 

Demonstrative exhibits are admissible if they supplement the 

witness1 spoken description of the transpired event, clarify some 

issue in the case, and are more probative than prejudicial. Palmer 

by Diacon v. Farmers Ins. Exch. (1988), 233 Mont. 515, 522-23, 761 

P.2d 401, 406. They are inadmissible only when they do not 

illustrate or make clearer some issue in the case; that is, where 

they are irrelevant or immaterial, or where they are of such a 

character as to prejudice the jury. Workman v. McIntyre Const. Co. 

(l98O), 190 Mont. 5, 24, 617 P.2d 1281, 1291 (citing 29 Am. Jur. 2d 

Evidence 5 785) . The testimony given by Don C. Cowles, Jr. was 
relevant in that it helped to clarify plaintiff's position on the 

number of shares issued. 

The admission of such evidence is within the discretion of the 

District Court and this Court will not reverse unless a manifest 

abuse of discretion is shown. Palmer, 761 P.2d at 406. See also 

Bache v. Gilden (l992), 252 Mont. 178, 827 P.2d 817. There is 

nothing in the record to indicate that the District Court accorded 

any significant weight to this testimony. To the contrary, the 

court specifically stated in Finding No. 53: 

Both sides made some efforts to trace the history of the 

stock issued as indicated by these findings, but due to 

the absence of most of the corporate records and 

antiquity of most of the other evidence, this is largely 

speculative, inconclusive and unreliable. 

The contested testimony certainly involved a fact in issue, 

the second requirement of Rule 701, M.R.Evid. It also helped to 

clarify plaintiff's position on that issue to the District Court. 

Because the evidence presented in this case was complex, confusing 

and incomplete, Don C. Cowles, Jr.'s testimony was helpful to the 

District Court in determining which of the exhibits previously 

admitted could determine the total number of shares. 

While Rule 1006, M.R.Evid., was not mentioned or argued by the 

parties, we conclude that it is applicable to this issue. Rule 

1006, M.R.Evid., provides: 

Rule 1006. Summaries. 

The contents of voluminous writings, recordings, or 

photographs which cannot conveniently be examined in 

court may be presented in the form of a chart, summary, 

or calculation. The originals, or duplicates, shall be 

made available for examination or copying, or both, by 

other parties at a reasonable time and place. The court 
may order that they be produced in court. 

Rule 1006, M.R.Evid., and the identical federal rule, Rule 1006, 

Fed.R.Evid., have been applied in a limited number of appeals. In 

general, the cases would affirm the District Court's decision in 

this case to admit the testimony of Don C. Cowles, Jr. See, e.q., 

United States v. Johnson (9th Cir. l979), 594 F.2d 1253, &. 

denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979) 

(proponent of a summary must establish that the underlying 

materials upon which the summary is based are admissible in 

evidence); United States v. Duncan (5th Cir. 1990), 919 F.2d 981, 

cert. denied, - U.S. -, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991), 

reh'q denied, 991 U.S. App. Lexis 1316 (5th Cir. 1991), (rule 

requires only that the underlying records be voluminous and that 

in-court examination be inconvenient): and United States v. Citron 

(2nd Cir. 1986), 783 F.2d 307, appeal after remand, 853 F.2d 1055 

(1988) (summaries cannot be admitted without the proper 

foundation). 

A case from the District of Columbia circuit most closely 

resembles the facts before us. See United States v. Lemire (D.C. 

Cir. 1983), 720 F.2d 1327, &. denied, 467 U.S. 1226, 104 S.Ct. 

2678, 81 L.Ed.2d 874 (1984). In that case, the defendants argued, 

as defendant argues here, that Rule 602 requires that non-expert 

witnesses testify only as to matters of which they have personal 

knowledge for the purpose of ensuring reliability. 

The lay witness in Lemire was an FBI agent who was also a 

certified public accountant. The lay witness relied on the 
testimony of prior witnesses and the numerous documents previously 

introduced. The witness summarized the evidence about a complex 

cash flow through offshore companies that the government had 

introduced by direct examination of its witnesses. The defendants 

objected to his testimony on the grounds that he was an improper 

witness under the Federal Rules of Evidence and that his testimony 

would unfairly prejudice their defense. The court stated: 

. . . In this case, neither Rule 602's literal language 

nor its overriding purpose was violated. [The witness] 

did not testify about any of the events underlying the 

trial: he only summarized evidence about cash flows that 

several prior witnesses had already offered. As to that 

evidence, he testified from his personal knowledge of the 

transcripts and exhibits. Hence Rule 602 does not bar 

his testimony. 

This court has not previously ruled on the 

admissibility of one witness's summary of evidence 

already presented by prior witnesses. Other courts, 

however, have recently confronted the question and 

permitted such summaries under Rule 1006, allowing for 

admission into evidence of summaries of documents too 

voluminous to be conveniently examined in court. . . . [W]e note that Rule 1006 was designed primarily as an 

exception to the best evidence rule, see United States v. 

Johnson, 594 F.2d 1253, 1255 (9th Cir.) , cert. denied, 

444 U.S. 964, . . . and since the evidence itself here 

was already before the court, there is no issue of 

inadmissibility under Rule 1002 as a replacement for the 

"best evidence." . . . Hence, "[elntirely aside from Rule 

1006, there would still be ample authority for the 

admission of [summary testimony] into evidence. . . . There is an established tradition that permits a summary 

of evidence to be put before the jury with proper 

limiting instructions." . . . Thus, we conclude that the 

Federal Rules of Evidence do not bar use of non-ex~ert 

summary testimony such as is presented in this case. 

Lemire, 720 F.2d at 1347 (citations omitted) (emphasis supplied). 

The court further stated: 

[Jlust as an expert can assist a jury by imparting 

special knowledge that helps the jury to understand 
technical evidence, a non-expert summarv witness can help 

the iury orqanize and evaluate evidence which is 

factually complex and fraqmentallv revealed in the 

testimony of a multitude of witness throuqhout the trial. 

Lemire, 720 F.2d at 1348 (emphasis supplied). 

While Lemire involved a jury trial and our case involves a 

trial to the court, the principles are applicable in both cases. 

We conclude that Rule 1006, M.R.Evid., authorized the admission of 

the testimony of Don C. Cowles, Jr. under the facts of this case. 

The District Court concluded that the evidence regarding stock 

ownership was speculative, inconclusive and unreliable in various 

aspects. The extensive findings on the part of the District Court 

demonstrate that the court carefully considered all of the evidence 

submitted to it. We conclude that the District Court properly 

allowed Don C. Cowles, Jr. to assist the court by his summary 

testimony of other documents already in evidence under Rule 1006, 

M.R.Evid. We further conclude that Don C. Cowles, Jr.Is exhibits 

are summaries made by him based on his own perception of other 

admitted facts, that the summaries were helpful to the court and 

that his testimony and exhibits were permitted under Rules 602 and 

701, M.R.Evid. 

We hold the District Court did not abuse its discretion in 

permitting Don C. Cowles, Jr. to testify as a lay witness and to 

introduce summaries which he had made to clarify admitted evidence. 

111. 

Did the District Court err in its award of costs to plaintiff? 

Defendant contends that the District Court's award of $469.50 
in costs to plaintiff should be reversed as plaintiff was not the 

prevailing party. Each party claimed 100% stock ownership at the 

outset of the lawsuit. Each was awarded only 50%. Defendant 

contends that this was a victory and a loss for both sides; 

therefore, no costs should have been awarded and the court should 

have found there was no prevailing party. 

Plaintiff acknowledged during trial that he should be declared 

owner of only 50% of the company. He contends that he is the 

prevailing party because he in fact received the relief he sought. 

The general rule is that the party who receives an affirmative 

judgment in his favor at the conclusion of the entire case is 

considered the prevailing party. Schmidt v. Colonial Terrace 

Associates (1985), 215 Mont. 62, 68, 694 P.2d 1340, 1344 appeal 

-- after rem., 223 Mont. 8, 723 P.2d 954 (1986). 

We conclude that plaintiff was the prevailing party as he 

received the relief he asked for at trial. We hold the District 

Court correctly awarded costs to plaintiff. 

IV. 

Did the District Court err in not granting defendant's motion 

for relief of judgment based on newly discovered evidence? 

Defendant submitted a Rule 60(b), M.R.Civ.P., post-judgment 

Motion for Relief from the Judgment under Rule 60(b)(2) and S 25- 

11-102(1) and (4), MCA. Defendant based this motion upon newly 

discovered evidence which she found on March 22, 1992, consisting 

of stock certificates and other documents concerning ownership of 

Cowles Mining Company. The District Court's Judgment was dated 
March 3, 1992. An appeal was filed on April 3, 1992. This Court 

granted defendant's motion to stay that appeal pending the District 

Court's ruling on her post-judgment motion. 

Rule 60 (c) , M.R. Civ. P. , provides that Rule 60 (b) motions shall 

be determined within the 45-day period provided by Rule 59(d), 

M.R.Civ.P., or shall be deemed denied. The time limits set forth 

in Rule 59, M.R.Civ.P, are mandatory. Marvel Brute Steel Bldg. v. 

Bass (1980), 189 Mont. 480, 483, 616 P.2d 380, 382. An order 

denying a motion is a nullity where it is issued after the time for 

ruling on the motion has expired. Marvel, 616 P.2d at 382. 

The District Court did not rule on that motion prior to the 

expiration of the 45-day period allowed by Rule 59(d), M.R.Civ.P., 

and on June 18, 1992, defendant's motion was deemed denied. 

Apparently the parties created some confusion for the District 

Court as the court was under the impression that the Supreme Court 

had granted extra time for ruling on the motion. When the ~istrict 

Court became aware that the motion was deemed denied, it 

nevertheless issued its Order Denying Motion for Relief From 

Judgment dated July 6, 1992, stating therein the reasons for 

denying the motion. 

The District Court noted in the order that the comment may be 

moot, but nonetheless deemed it advisable to issue its ruling on 

the matter. The court's order of July 6, 1992, denied the 

defendant's request which is the same result as the denial by 

passage of time under the rule. 

Defendant contends that the contents of the District Court's 
order further illustrates the failure of the court to examine the 

evidence and the documents filed in this case. The District Court 

concluded: 

The district court has reviewed copies of all of the 

documents, correspondence, etc., which Ms. Sheeline has 

presented post-trial along with her motion and brief, and 

finds no new evidence that would iustifv settincr aside or 

modif~inq the iudment ~reviouslv entered herein, or 

qrantina a new trial, Such material includes 

correspondence from and to Paul C. Sheeline as late as 

September 1980 . . Jean thereafter continued 

correspondence, payment of taxes, etc., during the 

ensuing years, received a letter from David Penwell 

(plaintiff Is attorney) in 1987, and this action was filed 

in 1990, so the court does not find Jean would have 

easily forgotten the files such material was in, and she 

did not exercise due diligence in looking for it. It . , . is highly unlikely the "new evidence" would have 

produced any different result at trial for reasons 

hereinafter stated. .... 

. . . If anything, much of the "new evidencett confirms 

legal manipulating and hanky-panky to squeeze out the 

Cowles stockholders, and surely does not constitute 

sufficient or equitable grounds for setting aside the 

judgment or ordering a new trial. .... In the opinion of the district court, judicial 

economy would not be served by retrial herein, and it 

would be a gross miscarriage of justice to modify the 

judgment so as to deprive Cowles of his one-half interest 

in the property on such purportedly newly discovered 

evidence. 

The remainder of the order reflects the court's detailed analysis 

of the newly discovered evidence. 

Rule 60(b)(2), M.R.Civ.P., provides in pertinent part: 

On motion and upon such terms as are just, the court may 

relieve a party or a party's legal representative from a 

final judgment, order, or proceeding for the following 

reasons: . . . (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move 

for a new trial under Rule 59(b). . . . 

Newly discovered evidence may constitute grounds for a new 
trial if the following conditions are met: (1) the alleged newly 

discovered evidence came to the moving party after trial; (2) it 

was not a want of due diligence which precluded its earlier 

discovery; (3) the materiality of the new evidence is so great that 

it would probably produce a different result on retrial: and (4) 

the new evidence is not merely cumulative, not tending only to 

impeach or discredit witnesses in the case. In re the Marriage of 

Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 202-03. 

The basic criterion for granting new trials because of newly 

discovered evidence is that the evidence could not have been 

discovered and produced at trial with the exercise of reasonable or 

due diligence. Kartes v. Kartes (1977) , 175 Mont. 210, 214-15, 573 

P.2d 191, 194. The moving party has the burden to show due 

diligence in unearthing the newly discovered evidence before relief 

from judgment or a new trial is proper. Brunner v. LaCasse (1990), 

241 Mont. 102, 104, 785 P.2d 210, 211. "Every presumption is 

indulged that the movant for a new trial on the ground of newlydiscovered evidence could have secured the testimony for the former 

trial, and the movant must negative any negligence on his part." 

Bushnell v. Cook (1986), 221 Mont. 296, 302, 718 P.2d 665, 669 

(quoting Walter v. Evans Products Co. (1983) , 207 Mont. 26, 31, 672 

P.2d 613, 616) . 

Defendant found documents which she contends are material 

while in the process of moving from her home in Boston where she 

had lived since 1962. Affidavits from defendant, one of her 

attorneys, Paul C. Sheeline, William Sheeline and Judith Bleakney 
Savage, a friend who assisted in defendant's move, swear to the 

following information: Prior to trial, an extensive search was 

conducted for Paul D. Sheeline's stock certificates and the Company 

records, including several searches of defendant's home, and it is 

understandable that defendant did not find the records as they were 

mailed to her by Paul C. Sheeline after her husband's death when 

she was very disoriented and distressed. The old files were wedged 

behind a broken bottom shelf in an old cabinet in her utility 

closet. The utility closet was packed with numerous sundry items 

including paint, light bulbs, and old magazines. Defendant kept 

important documents elsewhere. She would not have found these 

documents except for the fact that she was moving the old cabinet 

out of the closet in anticipation of moving. She previously 

searched the utility closet but had no reason to believe there was 

any important paperwork in that closet. Defendant does not 

remember receiving these documents or how they got into the old 

cabinet in the utility closet. 

Defendant contends that she exercised due diligence in 

locating these documents prior to trial. Prior Montana cases have 

addressed the issue of due diligence. For example, in Kartes, the 

parties contested title and ownership of a ranch. Kartes, 573 P.2d 

at 194. This Court held the defendants did not meet the burden to 

show due diligence because they had not made a significant effort 

to go through the books, records and papers, of which the alleged 

"newly discovered1' evidence was a part, which were in their 

possession and because the evidence was cumulative. Kartes, 573 

2 3 
P.2d at 194. 

However, in Alan D. Nicholson, Inc. v. Cannon (1983), 207 

Mont. 476, 674 P.2d 506, this Court held the district court did not 

abuse its discretion by granting a motion to reopen a hearing when 

an attorney located a misfiled document in his files four days 

after the hearing concluded. Another case finding due diligence is 

Halse v. Murphy (1989), 237 Mont. 509, 774 P.2d 418, in which this 

Court affirmed a district court decision to reverse a summary 

judgment order when a plaintiff's expert testified by signed 

affidavit that when he gave his deposition testimony, he was unable 

to render an opinion because he had not had the opportunity to 

review another doctor's notes and records, despite earlier 

extensions of time to the plaintiff for her expert to review 

records. 

After a careful review of the defendant's evidence in this 

case, we conclude the District Court properly should have found 

that defendant exercised due diligence in looking for the Company 

records but was unable to find them at an earlier date. 

However, before the evidence presented by defendant could be 

admitted, the remaining requirements for admission of newly 

discovered evidence must be met. Our review of the newly 

discovered evidence has disclosed a number of documents which were 

not presented at trial. Most of these are cumulative and 

duplicative. Nearly all of the evidence is dated after Paul D. 

Sheeline became interested in the Company. Stock certificates 

issued to the Sheelines and Alton Eldredge in 1946 are signed by 

24 
Alton Eldredge as president and Paul D. Sheeline as secretary of 

the Company. These certificates shed no light on what happened 

prior to 1946. If anything, they present further questions. For 

example, some of the stock issued prior to the date of devaluation 

is issued at the devalued par value. Further, a letter written by 

Paul C. Sheeline to his father in 1941 tends to indicate that Paul 

D. Sheeline thought he owned around 50% of the stock at that time, 

but a letter from George Naylor in April of 1946 refers to a large 

number of shares being transferred to Paul D. Sheeline on that day. 

There are proxy statements in the file--all blank and unsigned with 

nothing to prove the 1946 proceedings were legal. Typed and 

handwritten shareholder lists and records are mostly undated and 

all unsigned and, thus, there is no way to know who prepared them. 

As the District Court noted, they are inadmissible hearsay. Many 

of the documents concern property tax assessments and payments made 

by Paul D. Sheeline from 1946 through 1978. This evidence was 

presented at trial. 

We have carefully reviewed the documents and affirm the 

decision of the District Court that the admission of the newly 

discovered evidence would not change the result of the trial. We 

emphasize that the Cowles Mining Company stock book was still 

missing and was not included in the new evidence. "Stock books and 

stock transfer records of a corporation serve as evidence to both 

creditors and the corporation of actual stockholders therein." 

Thisted v. Tower Management Corp. (1966), 147 Mont. 1, 9, 409 P.2d 

813, 818. We conclude the admissible documents do not constitute 
evidence likely to result in a different outcome. 

We hold the District Court correctly denied the motion for 

relief from judgment on the basis of newly discovered evidence. 

Affirmed. 

We Concur: I/ 

J* hief Just' 

Justices 
I respectfully dissent. The appellant has met all of the 

conditions required for grant of a new trial. The newly discovered 

evidence was found subsequent to trial, the motion for new trial 

was diligently and timely made, the failure to previously produce 

the evidence was not for want of due diligence, and the new 

evidence was not cumulative. 

As to the materiality of the new evidence, I believe it is not 

only material but just as probative or more so than the evidence 

produced at trial. This type of case, considering the antiquity, 

is one of limited available evidence and the courts should be 

considerate of all available evidence. 

I would grant the motion for relief of judgment and grant a 

new trial. / 

Justice 

& 
June 10. 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Richard W. Josephson 

R. Mark Josephson 

JOSEPHSON & FREDRICKS 

P.O. Box 1047 

Big Timber, MT 5901 1 

J. DAVID PENWELL 

Attorney at Law 

P.O. Box 1677 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA