No. 81-301 

IN THE SUPREME COURT OF THE STATE OF P4ONTANA 

1982 

FIRST NATIONAL BANK & TRUST OF 

WIBAUX, et al., 

Plaintiffs and Respondents, 

SECURITY BANK, N. A. AMBROSE H. 

HEIMER, et al., 

Defendants and Appellants. 

Ay2eal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable, 

M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellants : 

Ralph L. Herriott, Billings, Montana 

Joseph F. Meglen, Billings, Montana 

For Respondents: 

Towe, Ball, Enright and Mackey, Billings, 

Montana 

Submitted on Briefs: March 5, 1982 

Decided: July 12, 1982 

Filed: JUL 12 1982 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

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 trial was set for May 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 to assert 

this. " 

The original trial date was vacated in May 1979 and 

leave to file an amended complaint pursuant to stipulation 

of the parties was granted September 4, 1979. Edward Towe's 

deposition was taken July 2, 1980. A tentative trial date 

in October was vacated because of illness of counsel, and in 

August 1980 a new trial date was set for September 11. On 

September 4, Heimer filed a motion for continuance supported 

by an affidavit of Ralph Herriott, appellants' counsel, 

claiming Grant Investment Funds is a partnership and not all 

partners had been joined in the lawsuit and also clainning 

not all of 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 10 and reset for November 24, and the parties were 

ordered to complete discovery by November 10, 1980. 

On November 10, 1980, defendants Ambrose and Joseph 
Heimer 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 

allow Ambrose Heimer to join Edward Towe and James Updike as 

third party defendants; (2) whether the named plaintiffs are 

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 later James 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, "at best," a permissive pleading "the substance of which would not be effected 

by not including it in the present 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, 

it was not properly before the court. Rule 15(a), M.R.Civ.P. 

Respondents also argue the attempt to add additional parties 
was 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 its discretion 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 as part of the 

amended answer Rule 15 (a) , M.R.Civ .P., governs. 

Appellants filed their amended answer on November 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), 118 Mont. 414, 167 P.2d 588; Paramount Publix 

Corp. v. Boucher (1933), 93 Mont. 348, 19 P.2d 223. 

After a responsive pleading is served or twenty days 

after an original pleading is served, a party may amend his 

pleading only by leave of court or by 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 strike the 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 

this action. 
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 Electric Co. 

(1968), 152 Mont. 126, 448 P.2d 683; Rule 52(a), M.R.Civ.P. 

The District Court found that First National 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 First National 

was the real party in interest and was entitled to receive 

the monies 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 will not be 

changed unless abuse of discretion is shown. Kadillak v. 

Montarla Dept. of State Lands (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), 110 Mont. 

350, 100 P.2d 935. We find no abuse of discretion here. 

A£ f i rmed . 
We concur: 

x&P,w6.d& Chief Justice 

Mr. Justice Gene B. Daly dissenting: 

I would reverse. 

Justice //