No. 12684 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

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 the Ninth Judicial District, 

Honorable Robert Sykes, Judge presiding. 

Counse 1 of Record : 

For Appellants: 

Keil and Gustafson, Conrad, Montana 

Gale R. Gustafson argued, Conrad, Montana 

For Respondent: 

Cresap S. McCracken argued, Great Falls, Montana 

Submitted: May 22, 1974 

Decided: JUL 2 2 19% 

Filed : ,HJi 2 2 1974 
Mr. 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 two defendants 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 as prosecuted 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 counts against the Iversons in the district court of Pondera 

County. The first count sought recovery of approximately $23,000 

and interest under a Colorado judgment based on a cognovit promissory 

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. 

During pretrial 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 defendants due 

to withdrawal of counsel of record; service could not be made on 

defendants personally as they could not be located. 

On motion of plaintiff, the district court on May 10, 1965, 

ordered defendants to appoint counsel or appear in person on the 

same day and granted defendants an additional 20 days to May 30, 

1965, to respond to plaintiff's demand for admissions. 

On May 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 to 
appear in person or appoint counsel, and a copy of the court's 

order of May 10, and (2) by leaving copies of these documents 

for defendants with 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 all matters covered by plaintiff's 

demand for admissions by reason of defendants' failure to respond. 

The district court entered an order accordingly on the same day. 

On the same day plaintiff moved for summary judgment and hearing 

thereon was 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 adby deposit 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 for plaintiff in accordance with the prayer of its 

complaint. 

A sheriff's sale on execution was 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 appeal was subsequently dismissed in February, 1967. 

On June 6, 1967, defendants filed in the district court 

their motion to vacate and set aside the juagent against 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 their motion, and (2) issued an order 

to show cause why defendants did not satisfy the judgment which 

required defendants1 personal 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 recover witness 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 jurisdiction and 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 is defendants' principal contention. 

The basic arguments are: (1) the district court's order ruling 

that the matters 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 remedy was 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 18 months later. 

The first denial of defendants' motion to vacate for the reason 

defendants failed to prosecute 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, 123 Mont. 135, 211 P.2d 138. The 

matters necessarily3.djudicated therein became res judicata. See 

Butler v. Brownlee, 152 Mont. 453, 451 P.2d 836, and cases cited 

therein. Judge Sykes was correct in so holding. 

The second issue for review requires no 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. requires advance payment at the statutory 

rate on demand. It does 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 statutory witness 
fee and mileage. The ruling of the district court is correct. 

The motion of plaintiff to assess a monetary penalty 

against defendants for their conduct herein is denied as a matter 

of discretion. We recognize dilatory tactics by 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 a monetary penalty at this time. 

Judgment affirmed. 

Justice