No. 12452 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

PEAVEY COMPANY and EDWARD PAINE, JR. , 

Plaintiffs and Appellants, 

AGRI -SERVICES, INC . , a Montana 

corpora tion, and GENERAL INSURANCE 

COMPANY OF AMERICA, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth 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 Holter argued, Bozeman, Montana 

For Respondents : 

Towe, Neely and Ball, Billings, Montana 

Sandall, Moses and Cavan, Billings, Montana 

Bruce R. Toole argued, Billings, Montana 

Burns and Solem Chinook, Montana 

Stuart C. MacKenzie argued ad William M. Solem 

appeared, Havre, Montana 

Weber, Bosch, Kuhr, Dugdale and Warner, Havre, Montana 

John Warner argued, Havre, Montana 

Hickman and Moore, Harlowton, Montana 

Jones, Olsen ad Chris tiansen, Billings, Montana 

Robert Zimmerman, Billings, Montana 

Gallagher and Archambeault, Glasgow, Montana 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

Longan, Holmstrom and Cebull, Billings, Montana 

Submitted : November 29, 1973 

Decided : DEC 2 8 1CJ?fJ 

DEC 2 8 1973 
Mr. 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 bondsman was 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 suits were filed 

against Agri-Services, other named defendants and General in 

various combinations at dates varying from late November, 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 judgment was 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 $20,000 bond should be prorated among all 

the claimants. On December 11, 1972, again upon its own motion, 

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 is whether or not 

said $20,000 paid 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 Peavey moved to set aside the consolidation order, and 

the order to prorate the bond. From a denial of that motion, 

and the orders to consolidate and to distribute the bond pro 

rata, Paine and Peavey appeal. 

Appellants cite several issues for review but in our 

view only one need be dealt with. That issue is whether the 

district court could consolidate the two cases which had been 

reduced to judgment with the other cases pending before it but 

which had not been reduced to judgment. 

As a preliminary, we note that had the Montana Department 

of Agriculture acted as it was 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 commission man is found 

to- be in a position where he cannot, or where 

there is a probability that he will not meet in 

full all storage obligations or other obligations resulting from the delivery of grain, it 

shall be 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 for which payment has not 

been made, and the department of agriculture 

shall have 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 commission man 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 

commission man, it shall then be the duty of 

the department of agriculture for the use and 

benefit of holders of such unpaid warehouse 

receipts - or 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 as may be necessary 

for full settlement of warehouse receipts or 

- 
other evidences of delivery of grain for which 

payment has not been made. It shall be 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. 1947 was designed to 

protect, will be injured far in excess of that which they would 

have been had the Department of Agriculture acted as it was 

under a duty to do. (In addition we 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 statutory duty. Such would seem necessary if 

these matters are to be settled with reasonable certainty and 

promptness.) We invite the attention of the Legislature and 

the Department of Agriculture to this matter. 

We also note that the question of whether a creditor 

can bring 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. Farmers Elevator Co. v. ~ist. 

Ct., 147 Mont. 72, 75, 410 P.2d 160. It said: 

* * * However, it (referring to section 3-229, 

R.C.M. 1947) does not, in our view, preclude 

an aggrieved party from bringing its own action 

independently." 

In this case it is undisputed that the Montana Department of Agriculture failed to act, and so the parties quite properly proceeded to protect their rights by bringing independent actions. 

As we see it, the crux of this case is the effect of the 

consolidation order of December 11, 1972. That order was founded 

upon the authority of Rule 42(a), M.R.Civ.P., which reads: 
"When actions 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; it may 

order all the actions consolidated; and it may 

make such orders concerning proceedings therein 

as may tend to avoid unnecessary costs or delay." 

We hold that the Peavey and Paine cases were not "pending before 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 Davis v. Bell Boy Gold Min. 

Co., 101 Mont. 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, 1921 reads: 

"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 in more 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 

appeal may 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 action must be 

reyaraed as still pending 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 "pending before 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. See Wright & Miller, Federal Practice and Procedure: 

Civil § 2382. We fail to see how consolidating two cases which 

have been reduced to judgment with cases which, 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 Department of Agriculture 

to intervene by a writ of mandate inasmuch as the language of 

section 3-229, R.C.M. 1947 is mandatory, 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 things was 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; Schimmel v. ~istrict 
Court 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 OF WQREH!E Cam, 

STATE OF 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 following paragraph: 

"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.