No. 12452 INTHE SUPREME COURT OF THE STATE OF MONTANA

PEAVEY COMPANY and 

### EDWARD PAINE, JR.

## , Plaintiffs and Appellants,

AGRI-SERVICES, INC

# .,a Montana corporation, and GENERAL INSURANCE COMPANY OF AMERICA, etal., Defendants and Respondents.

Appeal from: District Court of theFourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Moulton, Bellingham, Longo & Mather, Billings, Montana Ward Swanser argued, Billings, Montana Holter and Heath, Bozeman, Montana Robert Holterargued, Bozeman, Montana ForRespondents: Towe, Neely and Ball, Billings, Montana Sandall, Moses and Cavan, Billings, Montana Bruce R. Toole argued, Billings, Montana Burns and Solem Chinook, Montana StuartC. MacKenzie argued adWilliamM. Solem

appeared, Havre, Montana Weber, Bosch, Kuhr, Dugdale and Warner, Havre, Montana JohnWarner argued, Havre, Montana Hickman and Moore, Harlowton, Montana Jones, Olsen ad Christiansen, Billings, Montana Robert Zimmerman, Billings, Montana Gallagher and Archambeault, Glasgow, Montana Berger, Anderson, Sinclairand Murphy, Billings, Montana Longan, Holmstrom and Cebull, Billings, Montana

Submitted: November 

### 29, 1973 Decided:

# DEC28

## 1CJ?fJ 

## DEC28

## 1973Mr. Justice John C. Harrison delivered the Opinion of the Court. In the latter part of 1971,Agri-Services, a public warehouse operation, got into financial difficulties and ceased operations. At that time it owed an undetermined amount for grain purchased and delivered to it. Agri-Services had previously filed the bond required by section 3-228, R.C.M. 1947, in the amount of $20,000 with the Montana Department of Agriculture. The bondsmanwas General Insurance Company of America (hereinafter known as General). The record shows that at least one of the appellants, Peavey Company, on November 18, 1971,notified the Montana Department of Agriculture of the situation and that it had filed suit against both Agri-Services and General on that same day. Paine filed a separate action one day later on November 19, 1971. Subsequently seven other suitswere filed against Agri-Services, other named defendants and General in various combinations at datesvarying from lateNovember, 1971 to December 1972. None of these suits have been reduced to judgment. Paine took judgment against Agri-Services and General

on May 5, 1972 and Peavey took judgment against both defendants on September 13, 1972. Neither judgmentwas appealed. On November 8, 1972, the district court, on its own motion, ordered that no execution should issue in any of the cases, including the two that had been reduced to judgment, for the reason that the $20,000bond should be prorated among all the claimants. On December 11, 1972,again upon its ownmotion, the district court issued an order consolidating all of the cases, and which in pertinent part states: 

### " 

## * * * and it further appearing to the Court that the common question of law iswhether or not said $20,000paid into Court should be distributed pro rata or shall be distributed to the first who filed and got judgment; and the Court having already ruled that said $20,000 shall be distributed pro rata regardless of the time of judgment;"IT IS THEREFORE ORDERED, that all said actions are hereby consolidated into one action for the purpose of settling the legal questions involved. 

## * * *I' Paine and Peaveymoved to set aside the consolidation order, and the order to prorate the bond. From a denial of thatmotion, and the orders to consolidateand to distribute the bond pro rata, Paine and Peavey appeal. Appellants cite several issues for reviewbut in our view only one need be dealtwith. That issue iswhether the district court could consolidate the two cases which had been reduced to judgment with the other casespending before it but which had not been reduced to judgment. As a preliminary,we note that had theMontana Department of Agriculture acted as itwas under a duty to do, this case might not be before the Court. Section 3-229, R.C.M. 1947, says: "Whenever any warehouseman, grain dealer, track buyer, broker, agent or commissionman is found to- be 

### in a position where he cannot, or where there is a probability that he will notmeet in full all storage obligations or other obligations resulting from the delivery of grain, it shallbe the duty of the department of agriczture, through the division of grain standards, to intervene in the interests of the holders of warehouse receipts or other evidences of delivery of qrain forwhich payment has not been made, and the department of agriculture shallhave authority to do any and all things lawful and needful for the protection of the interests of the holders of warehouse receipts or other evidences of the delivery of grain for which payment has not been made, and when examination by the department of agriculture shall disclose that for any reason it is impossible for any warehouseman,grain dealer, track buyer, broker, agent or commissionman to settle in full for all outstanding warehouse receipts or other evidences of delivery of grain for which payment has not been made, without having recourse upon the bond filed by said warehouseman, grain dealer, track buyer, broker, agent or commissionman, it shall then be the duty of the department of agriculture for the use and benefit of holders of suchunpaid warehouse receiptsor other evidences of the delivery of

- qrain for which payment has not been made, to demand payment of its undertaking by the surety upon the bond in such amount asmay be necessary - -- for full settlement of warehouse receipts or 

## -other evidences of delivery of grain forwhich payment has not been made. It shallbe the duty of the attorney general or any county attorney of this state to represent the department of agriculture in any necessary action against such bond when facts constituting grounds for action are laid before him by the department of agriculture." (Emphasis supplied) By its failure to act, the Department of Agriculture has permitted a situation to grow in which it is inevitable that some of the class which section 3-229, R.C.M. 1947was designed to protect, will be injured far in excess of thatwhich they would have been had the Department of Agriculture acted as itwas under a duty to do. (Inadditionwe note that the statute does not require,nor does the Department of Agriculture have a regulation defining, a time limit for submission of claims in the event that the Department of Agriculture does act in accordance with its statutoryduty. Such would seemnecessary if thesematters are to be settledwith reasonable certainty and promptness.) We invite the attention of the Legislature and the DepartmentofAgriculture to thismatter. We also note that the question of whether a creditor

canbring an action on his own behalf where the Department of Agriculture does not act pursuant to section 3-229,R.C.M. 1947, has been settled by State ex rel. FarmersElevator Co. v. ~ist. Ct., 147Mont. 72, 75, 410 P.2d 160. It said: 

## * * * However, it (referringto section 3-229, R.C.M. 1947) does not, in our view, preclude an aggrieved party frombringing its own action independently." In this case it is undisputed that the Montana Departmentof Agriculture failed to act,and so the parties quite properly proceeded to protect their rightsby bringing independent actions. As we see it, the crux of this case is the effect of the consolidationorder of December 11, 1972. That order was founded upon the authority of Rule 42(a), M.R.Civ.P., which reads:"Whenactions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or a11 the matters in issue in the actions; itmay order all the actions consolidated; and itmay make such orders concerning proceedings therein asmay tend to avoid unnecessary costs or delay." We hold that the Peavey and Paine cases were not "pendingbefore the court" so as to make them amenable to consolidation. This Court had occasion to discuss the nature of a "judgment"and a "pending action" in Davisv. Bell Boy Gold Min. Co., 101Mont. 534, 540; 54 P.2d 563, in connection with section 9313,Rev. Codes, 1921,which was the predecessor of Rule 54(a), M.R.Civ.P. Section 9313,Rev. Codes, 1921reads: "A judgment is the final determination of the rights of the parties in an action or proceeding.

### " Rule 54(a)

## ,M.R.Civ.P., reads: "A judgment is the final determination of the rights of the parties in an action or proceeding and as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings." As can be seen,Rule 54(a), M.R.Civ.P. did not change the definition but rather incorporated section 9313,Rev. Codes, 1921,and spelled out the definition inmore precise detail. In any case the definitions are sufficiently similar so that,within the context of this case,what was said in Davis is applicable here. It reads:

"

## * * * The limitation of time within which an appealmay be taken is fixed by law so as to bring litigation to an end and define the limit of the trial court's jurisdiction,and, although a judgment is defined as the final determination of the rights of the parties to an action or proceeding

(sec. 9313,Rev. Codes, 1921), the actionmust be reyaraed as stillpending within the meaning of the section until final determination on appeal, or until the time for appeal has passed.'YCitations omitted)From this it follows that when the time for appeal has passed the case is no longer "pending before the court". It is undisputed that the time for appeal on both cases has passed. Hence, they are no longer "pendingbefore the court" and they cannot be brought within the purview of Rule 42(a), M.R.Civ.P. It should be borne in mind that the reason for Rule 42(a), M.R.Civ.P. is expressed in the rule itself: "

## * * 

## * tend to avoid unnecessary costs or delay." Thus the purpose of consolidation is to expedite the business of the court,economically and with justice to the parties. SeeWright & Miller, Federal Practice and Procedure: Civil § 2382. We fail to see how consolidating two caseswhich have been reduced to judgment with caseswhich, at the time of the order had not been reduced to judgment,would serve this purpose.We note that from the inception of the Peavey suit, any of the claimants could have intervened, Rule 24,M.R.Civ.P., or they could have required the Montana Departmentof Agriculture to interveneby a writ of mandate inasmuch as the language of section 3-229,R.C.M. 1947 ismandatory, or they could have moved for consolidation at any time prior to Paine's judgment. Furthermore,Agri-Services and General could have joined all claims against them, Rule 20,M.R.Civ.P., and they too could have moved for consolidation. None of these thingswas attempted. We recognize that the scope of Rule 42,M.R.Civ.P., is sweeping. Wright & Miller, Federal Practice and Procedure,Civil 2382, 2383, 2384. Nevertheless we think this case overreaches the bounds of the permissible use of Rule 42(a), M.R.Civ.P. See Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, 55 F.R.D. 436; Schachtv. Javits, 53 F.R.D. 321; Transeastern Shipping Corp.

v. India Supply Mission, 53 F.R.D. 204; Schimmelv. ~istrictCourt of Adams County, 155 Colo. 240, 393 P.2d 741. We therefore hold that the order staying the execution of the Paine and Peavey judgments and the order of consolidation

are void as to Paine and Peavey. The order appealled from is reversed as for the appellants Peavey and Paine.

Justices

Mr. Justice Frank I. Haswell did not participate in this cause.IN THE SUPREMF:COURT OF THE STATE OF MONTANA

No. 12452

PEAVEY CONPANY and EDWARD PAINE, Jr., Plaintiffs and Appellants,

AGRI-SERVICES, INC.,A Montana Corporation, and GENERAL INSURANCE 

# J~azr 1974 COMPANY OF AMERICA, et al., -7k.oma.d 

# 8.A. aa-pflm! & Defendants and Respondents. CLERK OFWQREH!E Cam, STATEOF BI;QF~V&RO

ORDER ON PETITION FOR REHEARING

PER CURIAM: IT IS ORDERED that the above-captioned opinion be amended in the following manner: Starting with line two,page seven,of the opinion, substitute the followingparagraph: "We therefore hold that the order staying the execution of judgments entered prior to the order of consolidation are void." With this amendment the petition for rehearing is denied. DATED this 21st day of January, 1974.