IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 86-309 

JOHN KIEHL NUTTER, 

Plaintiff and Appellant, 

v. 

THE PERMIAN CORPORATION, 

~efendant and Respondent. 

CLERK OF SUPREME CQ(IR,- 

STATE OF M0a.m~~ 

OPINION AND ORDER 

DISMISSING' APPEAL 

John Kiehl Nutter appeals to this Court from an order 

of the District Court, Eighth Judicial District, Cascade 

County, dated June 6, 1986, denying John Kiehl Nutter's 

motion for summary judgment, denying his motion for the 

imposition of sanctions against The Permian Corporation, 

abstaining from further proceedings in the District Court 

case in Cascade County, and transferring the cause to the 

District Court of the Ninth Judicial District in and for the 

County of Toole. 

John Kiehl Nutter filed his complaint on October 8, 

1985 against The Permian Corporation, a Texas corporation, 

alleging that in 1984 Permian had purchased oil from Nutter 

in the value of $5,780.79 which Permian has never paid and 

praying for judgment against Permian for the full value of 

the oil purchased together with interest. Permian filed its 

answer denying the allegation of the complaint on December 4, 

1985. 

The Cascade County District Court was informed and took 

judicial notice of an action pending in the District Court 
for the Ninth Judicial District, Toole County, entitled 

Somont Oil Company, Inc. v. John Kiehl Nutter and Peggy Faye 

Nutter, Cause No. 12680 in that court. The proceeds from the 

sale of crude oil, which Nutter sought in the Cascade County 

action, were the subject of the proceedings, in addition to 

other matters, pending in the Toole County District Court 

action. 

In the Cascade County action, Permian moved to 

consolidate the Cascade County action with the Toole County 

District Court action. Nutter on the other hand moved the 

Cascade County District Court for summary judgment in his 

favor in the Cascade County action, and for sanctions against 

Permian for denying discovery. 

In addition, Somont Oil Company, the plaintiff in the 

Toole County District Court action, moved in the Cascade 

County District Court action, pursuant to Rule 24 (a), 

M.R.Civ.P., for leave to intervene as a plaintiff so that it 

could assert its claim for the proceeds against the defendant 

Permian Corporation. 

On the Nutter motion for summary judgment, the District 

Court in the Cascade County action determined that there were 

genuine issues of material fact still to be decided because 

the District Court could not determine that Nutter owned the 

oil purchased by Permian, nor that Nutter had the right to 

sell the oil to Permian or anyone else and that the evidence 

was insufficient for summary judgment. 

The District Court also noted that the resolution of 

litigation pending between Somont Oil and Nutter in the Toole 

County District Court action would determine the respective 

rights of the parties, especially the right to the proceeds 
of the oil sale, which was the subject of the Cascade County 

District Court action. 

The Cascade County District Court further determined 

that the District Court in Toole County was "uniquely 

equipped to determine the subject matter of the litigation 

pending before this Court, i.e., the entitlement, if any, of 

Plaintiff, John Kiehl Nutter, to the oil sales proceeds held 

by the Permian Corporation." Moreover the Toole County 

District Court had personal jurisdiction over all of the 

parties and the venue was proper since the producing lands 

were situated in Toole County. 

Therefore the Cascade County District Court, on June 6, 

1986 denied Nutter's motion for summary judgment, denied 

sanctions as having no merit, abstained from the exercise of 

further jurisdiction over the suit brought by Nutter against 

Permian in the Cascade County District Court, and ordered the 

transfer of the cause to the District. Court for Toole County. 

Nutter appeals from that order. 

The order of the District Court is correct. Genuine 

issues of material fact exist which render a summary judgment 

at this stage in favor of Nutter improper. There is no 

appeal from a denial of summary judgment. 

An order changing the place of trial is appealable. 

Rule 1 (b) , M.R.App.Civ.P. However in this case it is plain 

from the record that a change of venue is required as 

provided in § 25-2-201(3), MCA. A court or judge must change 

the place of trial "when the convenience of witnesses and the 

ends of justice would be promoted by the change." 

It is clear in this case that the subject matter of the 

pending action in Toole County incorporates the subject 

matter of the action brought by Nutter in Cascade County. 
The possibility of conflicting results, multiple actions, and 

duplicate trials meets the statutory qualification of § 

25-2-201 (3), MCA, for the convenience of witnesses and the 

promotion of the ends of justice. 

Moreover, appellant in this case has filed no brief or 

transcript related to these proceedings, and nothing in the 

record tells us we should reverse the order denying sanctions 

against Permian in the Cascade County District Court cause. 

Permian has moved for an order dismissing the appeal 

and on the grounds stated foregoing, we determine that 

dismissing the appeal is proper. Nutter's rights may be 

fully preserved in the Toole County District Court action. 

ACCORDINGLY, IT IS HEREBY ORDERED that the above 

entitled appeal be and the same is hereby dismissed. 

DATED this of November, 1986. A' 

Chief Justice