### No. 81-301 INTHE SUPREMECOURT OF THE STATEOF P4ONTANA 1982

FIRSTNATIONAL BANK & 

### TRUST OF WIBAUX, et al., Plaintiffs and Respondents,

SECURITYBANK,

### N. A. AMBROSE 

### H. HEIMER, et al., DefendantsandAppellants.

Ay2eal from: DistrictCourtof the Thirteenth Judicial District, Inand for the Countyof Yellowstone, The Honorable, M. James Sorte,Judgepresiding.

Counselof Record: ForAppellants: 

### Ralph L. 

### Herriott,Billings, Montana Joseph

### F. Meglen,Billings, Montana For Respondents: Towe,Ball, Enright and Mackey, Billings, Montana

SubmittedonBriefs: March 5, 1982 Decided: July 12, 1982

Filed:

# JUL12

# 1982

### Mr. Justice John Conway Harrison delivered the Opinion of theCourt. This appeal arises from an action for recovery on four promissory notes, three of which 

### were signed and executed by appellant, Ambrose 

### Heimer, and the fourth of which

was signed and executed by Joseph Heimer and guaranteed by Ambrose 

### Heimer

# . ?'he original complaint was filed June 9, 1978, by First National Bank and Trust of Wibaux. The remaining plaintiffs were added subsequently. After preliminary pleadings trialwas setforMay 14, 1979. In response to interrogatories of February 7, 1979, Ambrose Heimer stated, "Defendant Ambrose Heimer intends to make Edward Towe a defendant by way of cross-claim toassert this. " The original trial date was vacated in May 1979 and leave to file an amended complaint pursuant to stipulation of the partieswas granted September 4, 1979. Edward Towe's deposition was taken July 2, 1980. A tentative trial date inOctober was vacated because of illnessof counsel, and in August 1980 a new trial date was set for September 11. On September 4, Heimer fileda motion for continuance supported by an affidavit of Ralph Herriott, appellants' counsel, claiming Grant InvestmentFunds 

### is a partnershipand not all partners had been joined in the lawsuit and also clainning not allof the real parties in interest had been made party to the lawsuit. The motion was granted, and 

### a new trial date 

### set for September 30. That trial date was vacated on September 10and reset forNovember 24, and the partieswere ordered tocompletediscoveryby November 10, 1980. On November 10, 1980, defendants Ambrose and JosephHeimer filed an amended answer, which included a counterclaim, cross-complaint and two third party complaints. The District Court granted respondents' motion to strike the amended answer, cross-complaint and third party complaints by order of November 24. Trial was held on November 24, 1980, and judgment entered in favor of respondents on March 3, 1981. Appellants 

### set out three issues for review by this Court: (1)Whether the 

### District Court erred in failing to allowAmbrose 

### Heimer tojoin Edward Towe and James Updike as third party defendants; (2)whether thenamed plaintiffsare real parties in interest; and (3) whether attorney fees of 18% of the amount due on the promissory notes were properly assessed. The source of the first issue 

### is appellants' amended

answer which included a counterclaim, cross-complaint and two third party complaints. The amended answer, dated November 10, 1980, included third party co~nplaints against Edward Towe and laterJames Updike. In granting respondents' motion to strike the appellants' amended answer, including the two third party complaints, the 

### District Court determined that the contentions proposed by the appellants constituted, "atbest," a permissive pleading "the substance of which would not be effected by not including it in thepresent trial." Respondents argue that since the amended answer was filed more than twenty days after it was served and without leave of the court or written consent of the adverse party, itwas notproperly before thecourt. Rule 15(a),M.R.Civ.P. Respondents alsoargue the attempt toadd additional partieswas defective for the same reasons under Rule 21, M.R.Civ.P. Even if the appellants had moved the court properly to amend the pleadings and add additional parties, respondents claim, the 

### District Court properly exercised 

### itsdiscretion in granting the motion to 

### strike in that the amendment was untimely. As previously noted, the appellants' amended answer included a cross-complaint, countercomplaint, and two third party complaints. Since these various complaints 

### were not severed from one another and were included aspart of the amended answer Rule 15(a)

## ,M.R.Civ .P., governs. Appellants filed their amended answer onNovember 10, 1980. Respondents subsequently filed a motion to strike which 

### is the only method of determining whether an amended pleading has been improperly filed. Westlake v. 

### District Court (1946), 118Mont. 414, 167 P.2d 588; Paramount Publix Corp. 

### v. Boucher (1933), 93Mont. 348, 19P.2d 223. After a responsive pleading 

### is served or twenty days after an original pleading 

### is served, a party may amend his pleading onlyby leaveof courtorby written consent of the adverse party. Rule 1 5 ( a )

## ,M.R.Civ.P. Appellants here did not have written consent of respondents and filed their amendment without leave of court. Therefore, the 

### District Court did not 

### err in granting the motion to strikethe amended answer. The second issue to be considered is whether the named plaintiffs, First National Bank and Trust of Wibaux (hereinafter First National), Richey National Bank, Towe Foundation and Grant Investment Fund, are real parties in thisaction.The District Court's findings of fact will not be disturbed by this Court if they are supported by the evidence. Washington Water and Power v. Morgan ElectricCo. (1968), 152Mont. 126, 448 P.2d 683; Rule 52(a),M.R.Civ.P. The District Court found that FirstNational was the holder of legal 

### title to each of the promissory notes in question and that it holds trust authority and powers regarding each note. The court concluded that FirstNational

was the real party in interest and was entitled to receive themonies owed under each promissory note. We find substantial evidence both in the transcript and the exhibits supporting the

### District Court and therefore affirm its finding. Appellants also claim as error the District Court's award of attorney fees. The 

### District Court awarded attorney fees of 10%of the unpaid principal and interest of each note. This was the minimum amount agreed upon in each of the notes and was also supported by an hourly documentation of attorney

### time by respondents' counsel. The determination of reasonable attorney fees is within the discretion of the District Court and 

### willnot be changed unless abuse of discretion 

### is shown. Kadillak 

### v. Montarla Dept. of StateLands (1982), 

### -Mont. 

## - 

## , 643 P.2d 1178, 39 St.Rep. 773; Glick v. State of Montana (1974), 165 Mont. 307, 528 P.2d 686; Luebben v. Metlen (1940), 110Mont. 350, 100 P.2d 935. We find no abuse of discretion here. 

### A£firmed

# .

### We concur: 

# x&P,w6.d& Chief Justice

Mr. Justice Gene B. Daly 

### dissenting: I

### would reverse.

Justice 

# //