No. 12684 INTHE SUPREME COURT OF THE STATE OFMONTANA 1974

UNITED BANK OF PUEB~O,(formerly Arkansas Valley Bank) a Colorado banking corporation,Plaintiff and Respondent,

-vs

# - CARL 0. IVERSON and MABEL IVERSON, Defendants and Appellants.

Appeal from: District Court of theNinth JudicialDistrict, Honorable Robert Sykes, Judge presiding. Counse1of Record: ForAppellants: Keil and Gustafson, Conrad, Montana GaleR. Gustafson argued, Conrad, Montana ForRespondent: Cresap S. McCracken argued, GreatFalls, Montana

Submitted: May 22, 1974 Decided: 

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## 1974Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant Carl 0. Iverson appeals from two orders of the district court of Pondera County: (1)an order refusing to vacate

a summary judgment in favor of plaintiff, and (2)an order denying recovery of witness fees and mileage previously paid to one of plaintiff's attorneys. Appellant is one of twodefendants in the district court, the other being his wife who died prior to appeal. As appellant prosecutes this appeal both individually and as heir apparent of his deceased wife, we will treat this appeal asprosecuted by both defendants. Plaintiff and respondent is the United Bank of Pueblo, formerly the Arkansas Valley Bank. In September 1964,the bank filed a debt action containing two countsagainst the Iversons in the district court of Pondera County. The first count soughtrecovery of approximately $23,000 and interest under a Colorado judgmentbased on a cognovitpromissory note. The second count sought recovery of approximately $48,000 and interest based on the Iversons' written guarantee to the bank of the defaulted debts of Transcontinental Leasing Corporation. Duringpretrial discovery proceedings, the bank filed a demand for admissions by defendants under Rule 36,M.R.Civ.P. Service could not be accomplished on counsel for defendantsdue to withdrawal of counsel of record; service could not be made on defendantspersonally as they could not be located. Onmotion of plaintiff, the district court onMay 10, 1965, ordered defendants to appoint counsel or appear in person on the

same day and granted defendantsan additional 20 days to May 30, 1965, to respond to plaintiff's demand for admissions. OnMay 27, the district court ordered service be made on defendants (1) by mailing to defendants' last known address in Conrad,Montana, copies of the demand for admissions,notice toappear inperson or appoint counsel,and a copy of the court's order of May 10,and (2) by leaving copies of these documents fordefendantswith the clerk of court in Conrad. On the same day copies of the pertinent documents were so mailed and deposited. On June 21,plaintiff filed a motion requesting a court order establishing as admitted allmatters covered by plaintiff's demand for admissionsby reason of defendants' failure to respond. The district court entered an order accordingly on the same day. On the same day plaintiffmoved for summary judgment and hearing thereonwas set for July 5. Copies were ordered served on defendants personally or if this could not be accomplished,then by mailing to defendants' last known address adbydeposit with the clerk of court. On June 30, a firm of Kalispell attorneys filed a praecipe of its appearance for defendants. The hearing on summary judgment

was continued from time to time to October 13. In the meantime, defendants' written interrogatoriesto plaintiff were filed and served. Plaintiff filed objections thereto. On October 13, 1965, the district court entered summary judgment forplaintiff in accordance with the prayer of its complaint. A sheriff's sale on executionwas held. The bank purchased the stock of defendants in Larry C. Iverson, Inc. and the interest of defendants in stock in Larry C. Iverson, Inc. and Carl 0. Iverson, Inc. held by their two children. Defendants' appealed from the summary judgment on December 9, 1965. The appealwas subsequently dismissed in February, 1967. On June 6, 1967,defendants filed in the district court their motion to vacate and set aside the juagentagainst them on the grounds of newly discovered evidence of fraud under Rule 60(b), M.R.Civ.P. -3-On January 26, 1968, the district court (1) denied defendants'notion to set aside the summary judgment because of defendants' failure to prosecute theirmotion, and (2) issued an order to show causewhy defendants did not satisfy the judgmentwhich required defendants1personal appearance on February 5, 1968. On February 9, 1968, the district court found defendants in contempt of court for their failure to appear,but reserved imposition of any penalty and granted them 45 days to purge themselves of contempt by appearance as originally directed. On March 11, 1968,defendants filed a second identical motion to vacate the summary judgment on the same basis as the first. They also filed a motion to recoverwitness fees and mileage paid to one of plaintiff's attorneys who responded to a subpoena duces tecum issued by defendants. Eventually, the present Conrad attorneys for Carl 0. Iverson appeared and disqualified Judge McPhillips. Judge Sykes assumed jurisdictionand set all pending motions for hearing. Following hearing, Judge Sykes (1)denied defendants'motion to recover witness fees and mileage previously paid one of plaintiff's attorneys for responding to a subpoena duces tecum issued by defendants, (2)denied the several motions to vacate the summary judgment. Defendant Carl 0. Iverson,on behalf of himself and his deceased wife, filed notice of appeal from those rulings on November 30, 1973. Two issues are before us for review:

(1) Was the district court's refusal to vacate and set aside its summary judgment correct? (2) Can defendants recover the witness fees and mileage previously paid to one of plaintiff's attorneys for responding to a subpoena duces tecum issued by defendants?The first issue isdefendants' principal contention. The basic arguments are: (1) the district court's order ruling that thematters contained in plaintiff's demand for admission were improperly entered, tainted the summary judgment,and the

same should have been vacated and set aside; (2) the indebtedness sued upon was bottomed on cognovit promissory notes illegal in Arizona and Montana; and (3) the foreign judgment in the first court was never properly authenticated. Each of these contentions involves the validity of the summary judgment in the first instance. Once the district court refused to vacate and set aside the summary judgment,defendants' remaining remedywas by appeal. Here defendants filed an appeal and later requested this Court to dismiss it which was done. This affirmed the district court's order refusing to revacate the summary judgment. Rule 12,M.R.App.Civ.P. The refusal cannot be revived for a second review by the filing of a second identical motion to vacate 18months later. The first denial of defendants' motion to vacate for the reason defendants failed toprosecute the same became the law of the case and binding on the parties. Libin v. Huffine, 124 Mont. 361, 224 P.2d 144;Apple v. Edwards, 123Mont. 135, 211 P.2d 138. The matters necessarily3.djudicatedtherein became res judicata. See Butler v. Brownlee, 152Mont. 453, 451 P.2d 836,and cases cited therein. Judge Sykeswas correct in so holding. The second issue for review requiresno extended discussion. The reason defendants cannot recover witness fees and mileage paid

one of plaintiff's attorneys is that they subpoenaed him to appear. Rule 45(c), M.R.Civ.P. requiresadvance payment at the statutory rate on demand. Itdoes not distinguish between attorneys and laymen. The particular attorney did not have to be there had he not been subpoenaed,and he is entitled to the statutorywitnessfee and mileage. The ruling of the district court is correct. Themotion of plaintiff to assess a monetary penalty against defendants for their conduct herein is denied as a matter of discretion. We recognize dilatory tacticsby and on behalf of defendants;we note that defendants have been found guilty of contempt of court;nonetheless we feel that no purpose would be served by assessing amonetary penalty at this time. Judgmentaffirmed.

Justice