No. 83-316 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

ARDELL HULL, individually and 

d/b/a A & H TRUCKING and as 

P & H TRUCKING; and DEL McALPINE, 

Plaintiffs and Respondents, 

D. IRVIN TRANSPORT LTD., a body 

corporate; and SPENCER GROUP, an 

unincorporated association consisting 

of SPENCER CONTRACT HAULING LTD., a 

body corporate, TROCHU TRUCKING 

SERVICES LTD., a body corporate, 

and D. IRVIN TRANSPORT LTD., a body 

corporate, 

Defendants, 

and 

THE CLARKSON COMPANY LIMITED, and 

FRUEHAUF TRAILER COMPANY OF CANADA LTD., 

Intervenors and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Crowley Law Firm; Sherry J. Matteucci argued, 

Billings, Montana (Clarkson Co. Ltd.) 

Church, Harrison, Johnson & Williams; Michael B. 

Anderson argued, Great Falls, Montana (Fruehauf) 

For Respondent : 

Jardine, Stephenson, Blewett & Weaver; Jack Lewis 

argued, Great Falls, Montana (Hull) 

Submitted: June 191 1984 

Decided: October 23, 1984 

Clerk 
Mr. .Justice ,John Conway Harrison delivered the Opinion of 

the Court. 

This case is a priority dispute between Hull 3nd 

McAlpine, Montana residents who obtained judgments and then 

attached certain semi truck trailers and tractors of 

defendants, and Clarkson and Fruehauf, Canadian corporations 

which claimed prior security interests in the vehicles. 

Clarkson and Fruehauf appeal from the order of the Eighth 

Judicial District Court, Cascade County, granting summary 

judgment in favor of Hull and McAlpine. The property in 

question consists of nine trailers and/or semi trucks. For 

the sake of simplicity they will be referred to as units 1 

through 9 throughout this opinion. 

During 1980 and 1981, Hull and McAlpine entered into 

written agreements with defendants D. Irvin Transport, Ltd., 

(hereinafter Irvin) and Spencer Group (hereinafter Spencer 

Group). Spencer Group is a Canadian unincorporated 

association consisting of Spencer Contract Hauling, Ltd., a 

Canadian corporation, Trochu Trucking Services, Ltd., 

(Trochu) , a Canadian corporation, D. Irvin Transport, Ltd., 

a Canadian corporation, and other corporations not involved 

here. Hull and McAlpine are both Montana residents and U.S. 

citizens. As provided in the agreements, Hull and McAlpine 

leased trucks owned by them to Irvin and Spencer Group for 

the purpose of hauling cargo in and throughout Canada and 

the listed states. The transportation of cargo was done in 

the names of either Irvin or Trochu. 

Fruehauf is a corporation which manufactures trailers 

for semi trucks. It sold two trailers, units 1 and 2, to 

Spencer Contract Hauling in August of 1981, by means of a 
"conditional sales contract," which retained title to the 

trailers in Fruehauf until the total purchase price was 

paid. The contract was signed and registered with the 

Alberta Vehicle Registry. 

On February 3, 1977, Spencer Group executed a demand 

debenture to evidence a loan of certain sums from the 

Canadian Imperial Bank of Commerce (hereinafter the Bank). 

Under the tems of the debenture, Spencer Contract Hauling 

granted the Bank a security interest in all of Spencer 

Contract Hauling's personal property whenever acquired and 

wherever located. One of the remedies in case of default 

provided by the debenture is the appointment of a receiver, 

who is authorized to take possession of and liquidate all of 

Spencer Contract Hauling's personal property among other 

powers. Spencer Contract Hauling defaulted and on December 

29, 1981, the Bank appointed Clarkson as receiver of Spencer 

Contract Hauling in accordance with the terms of the demand 

debenture. Stan Spencer, apparently the president or head 

of Spencer Group accepted the appointment of Clarkson as 

receiver. 

On December 21, 1981, Spencer Group sent a form letter 

to a11 leased operators, including Hull and McAlpine, 

notifying them that they would not be paid the amounts owed 

them under the hauling contracts due to a lack of available 

funds. They were also notified that the Bank would be 

appointing a receiver of the assets and affairs of Spencer 

Contract Hauling. Nevertheless, fertilizer was loaded by 

Spencer Group onto units 1 and 2, the Pruehauf trailers, and 

Hull transported the fertilizer from Calgary to Butte. 

After doing so, Hull pulled the trailers to his home in 
'Teton County and parked them. McAlpine was in California 

pulling units 3 and 4 when he received his notice. When he 

returned to Montana, he parked the units at his residence in 

Teton County also. They promptly contacted Spencer Group 

about being paid, and when told they would not be paid 

brought the underlying action. 

The complaint was filed on January 7, 1982. Hull and 

McAlpine contacted Fruehauf to ascertain the value of the 

units, and Fruehauf personnel mentioned that Spencer Group 

owed them money. However, they did not mention any claimed 

mortgages or security interests in the property. Units 1 

through 4 were attached by the sheriff of Teton County on 

January 7. On January 8, unit 5 was attached by the sheriff 

of Silver Bow County. Units 6, 7 and 8 were attached on 

January 20 by the sheriff of Cascade County, and on that 

same day, unit 9 was attached by the sheriff of Missoula 

County. A11 nine units were attached pursuant to writs of 

attachment issued out of the District Court of the Eighth 

Judicial District for Cascade County. All are registered 

in Alberta, Canada, and have either a rated capacity or a 

load carrying axle of at least 10,000 pounds. The Alberta 

registrations name Irvin as the owner of all units except 

unit 5, which is registered to Trochu. 

After filing the complaint, a copy of it and the 

summons were served on Charles Irvin in Toole County as 

"Director of D. Irvin Transport, Ltd." and as "Associate of 

Spencer Group." On January 27, 1982, Clarkson filed a 

motion to intervene as defendant or to substitute it in 

place of Spencer Contract Hauling. On the same day it also 

filed a motion to quash the writs of attachment. The 
motions were denied for failure of Clarkson to plead a claim 

or defense as required by rule 24(c), nl.R.Civ.P. Having 

failed to appear and plead, defaults were entered against 

the defendants on January 29, 1982. Hull recovered a 

judgment in the amount of $74,811.51 and McAlpine recovered 

a judgment in the amount of $101,176.13. 

On February 23, 1982, Clarkson again moved to 

intervene and quash the attachment. Fruehauf moved to 

intervene on March 4, 1982. The basis of Clarkson's motion 

was that Spencer Contract Hauling had no equity in the 

attached vehicles, that the vehicles were in the control of 

Spencer Contract Hauling, not Irvin or Trochu, and as such 

its appointment as receiver gave it a claim to the vehicles 

prior in time to Hull's and McAlpinels. Clarkson also 

contends that five of the vehicles are encumbered by a prior 

security interest held by Commerce Leasing and Bow-llac 

Leasing, by virture of their having leased the vehicles to 

Spencer Contract Hauling. Both leasing companies have 

appointed Clarkson as their agent for purposes of this case. 

The basis of Fruehauf's motion was that it had title to the 

two trailers, units 1 and 2, pursuant to the conditional 

sales contract. Both Clarkson and Fruehauf were allowed to 

intervene. 

Neither Fruehauf, Clarkson or the Bank has caused any 

lien or encumbrance on the vehicles to be filed in Montana. 

The Fruehauf conditional sales contract covering units 1 and 

2 was registered with the Alberta Office of Vehicle Registry 

on September 8, 1981. Under Alberta law, certificates of 

title are not given, provided or required on motor vehicles. 

The Motor Vehicles Division registers the owners of vehicles 
operating out of Alberta and issues vehicle registrations. 

A different office, the Office of Vehicle Registry, Personal 

Property Registration Branch, maintains the records of liens 

and encumbrances on motor vehicles operating out of Alberta. 

Liens and encumbrances are to be filed in that office to be 

perfected. 

Hull, McAlpine, Clarkson an3 Fruehauf all moved for 

summary judgment, claiming that their respective 

encumbrances or attachments, had priority over the other 

parties'. After the issues were briefed and argued the 

District Court ruled in favor of Hull and McAlpine. An 

extensive memorandum was filed in support of this ruling, 

where the District Court advanced several grounds which it 

felt either individually or alternatively were sufficient to 

require such a result. These alternative grounds include 

the court's reading of Montana public policy, and several 

Montana and federal statutory provisions. The conclusion 

reached was that Clarkson and Fruehauf had no right, title 

or interest in the subject vehicles superior to the 

dttachment of Hull and McAlpine. Clarkson and Fruehauf 

appeal this ruling. 

Of the numerous issues raised by Clarkson and 

Fruehauf, only the following need by addressed in this 

opinion: 

(1) Did the District Court acquire jurisdiction over 

jefendants D. Irvin Transport, Ltd., the "Spencer Group," 

Spencer Contract Hauling, Ltd., or any other named defendant 

by service upon Charles Irvin as "Director of D. Irvin 

Transport, Ltd." and "associate of Spencer Group?" 

(2) Were the writs of attachment valid and properly 
issued and enforced by the District Court? 

(3) If jurisdiction was properly invoked, did the 

District Court arr in concluding that no genuine issues of 

material fact existed which would preclude an order granting 

Yull and McAlpinels motion for summary judgment? 

Appellants first attack the underlying judgment 

against Irvin, Trochu, Spencer Contract Hauling and Spencer 

Group. They contend that Hull and PlcAlpine have not proven 

the legal status of the above entities, and absent such 

proof, service on Charles Irvin as "Director of D. Irvin 

Transport, Ltd." and "associate of Spencer Group" is 

insufficient to give the District Court jurisdiction. 

However, Hull and McAlpine correctly argue that questions of 

defective service of process may be raised only by the one 

01-1 whom attempted service was made. In Re Roberts' Estate 

(1936), 102 blont. 240, 58 P.2d 495. This rule is equally 

applicable to parties and intervenors in a lawsuit. See 72 

C.J.S. Process, section 106. Therefore appellants may not 

attack the service on Charles Irvin and the issue is not 

properly before the Court. 

The same rule applies to appellants' objections to the 

issuance of the writs of attachment. Defects in the 

issuance of the writs may only be raised and objected to by 

the defendants in an attachment proceeding. Section 

27-18-711, MCA and Patch v. Stewart (1927), 78 Mont. 192, 

253 P. 254. A third party is entitled to assert its 

interest in the attached property as appellants were allowed 

to do in this case. However, not every party may attack 

defects in the issuance of the writs, only the defendant in 

the action. Again this issue is not properly before the 
Court. 

Appellants next contend there were several questions 

of material fact which were either not addressed by the 

trial court or were improperly decided on respondents' 

motions for summary judgment. We agree. Summary judgment, 

"[Wlas not intended nor can it be used as a substitute for 

existing methods in the trial of issues of fact. . . I' 

Kober and Kyris v. Billings Deaconess Hospital (1966), 148 

Mont. 117 at 122, 417 P.2d 476 at 479. The purpose of a 

motion for summary judgment is to determine whether any 

issues of material fact exist, and whether the moving party 

is entitled to judgment as a matter of law. Rule 56(c) 

M.R.Civ.P., and Cereck v. Albertson's, Inc. (1981), 195 

Mont. 409, 637 P.2d 509. 

There are several important unanswered questions which 

remain in this case, especially concerning the validity of 

the security interests held by the Canadian creditors. 

Though Hull and McAlpine did not rest their case on any 

supposed failure of the security interests to attach, the 

trial court's memorandum implied such a possibility and it 

obviously weighed on the decision below. The trial court 

also decided several issues of fact, which is improper on a 

motion for summary judgment. The trial court found that the 

"Presumption that Irvin and Trochu were [the] owners of 

units 3 through 9 [is] not overcome by the evidence." This 

is obviously an issue which is properly left to the trier of 

fact. The court also did not ever address Fruehauf's claim 

of ownership concerning units 1 and 2. 

In short, numerous issues of fact remain which must be 

resolved and applied to the appropriate law. The above is 
by no means a complete list of the outstanding questions of 

fact. Counsel for both parties and the District Court Judge 

are properly left the task of framing the issues, as the 

important facts are not completely before this Court, but 

remain to be uncovered. Without sufficient facts before us, 

it would be unwise to risk misguiding the lower court and 

counsel by attempting to list all remaining material issues 

of fact. 

Lastly, we note that the parties requested 

clarification of Montana law applied here by the trial 

court. It would be premature for us to advise the parties 

and the lower court on possible application of the law when 

the case is not completely before us. When all the 

pertinent facts are known, the District Court is the forum 

where initial application of the law should be made. 

Reversed and remanded for further proceedings as 

outlined in this opinion. 

We concur: V 

?444 .aQ&Do Chief Justice - 

Justices 
I dissent from the remand. In my opinion the majority 

has strained to find factual issues. This case appears ripe 

for ruling upon the legal questions. 

The majority states: 

"The trial court found that the 'presumption that 

Irvin and Trochu were [the] owners of units 3 

through 9 [is] not overcome by the evidence.' This 

is obviously an issue which is properly left to the 

trier of fact." 

The trial court's memorandum in support of its summary 

judgment specifically states that any factual issue existing 

between the presumption and other evidence was not necessary 

to the summary judgment and was not a. question of fact 

resolved by the court. 

In my opinion we should decide the legal questions in 

this case. Since the case is being remanded for 

determination of factual issues I hesitate to make a 

determination on the legal questions. The more propitious 

course is 

reargued. 

reserve ruling until the case returns and is