No. 90-540 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

AUGUSTA GEIGER, 

Plaintiff and Appellant, 

-vsDEPARTMENT OF REVENUE OF THE 

STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable H. R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Houtz, Forsyth, Montana 

For Respondent: 

R. Bruce McGinnis, Tax Counsel, Dept. of Revenue, 

Helena, Montana 

ED 

Submitted on Briefs: July 16, 1991 

AUG 2 7 3999 id&: August 27, 1991 

Filed: L'A 3)mitL 

CLERK OF SUPREME COURl 

S'TATE OF MONTANA 

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Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

September 27, 1990 the District Court of the Seventh Judicial 

District, Dawson County issued an order dismissing the plaintiff's 

original complaint. We reverse and remand. 

The primary issue for review is restated as follows: Did the 

court mistakenly dismiss the original complaint? 

September 4, 1984, the plaintiff, Augusta Geiger (Geiger), 

filed a complaint against the Dawson County Commissioners and the 

Montana Department of Revenue (DOR). On September 27, 1984, the 

DOR filed a motion to dismiss and supporting brief. The court took 

no action on the motion to dismiss at that time. 

The trial court dismissed the Dawson County Commissioners from 

this action on July 7, 1988. The dismissal occurred as a result 

of a successful appeal by the Dawson County Commissioners, and a 

favorable ruling in Cantwell v. Geiger (1987), 228 Mont. 330, 742 

P.2d 468. 

On February 14, 1990, the District Court granted permission 

to amend the complaint and Geiger filed and served the amended 

complaint. February 21, 1990, following this filing the DOR moved 

the court to reconsider its order allowing Geiger to amend. Both 

parties submitted briefs; however, the court took no action on the 

issue at that time. 

July 11, 1990, along with counsel, the court signed a pretrial order setting out 39 contentions on behalf of the plaintiff 

and 53 contentions on behalf of the defendant. The pre-trial order 

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stated that it superseded the pleadings and "that all pleadings 

herein shall be amended to conform to this pre-trial order." 

Finally, on September 27, 1990, after a hearing, the court 

dismissed the original complaint based on the DORIS motion to 

dismiss dated September 27, 1984. The record does not indicate 

that the court considered the amended complaint or the pre-trial 

order which took the place of the pleadings. 

We conclude that the District Court acted inappropriately when 

it dismissed Geiger's case in total disregard of its previous 

orders. We hold that it was error for the District Court to 

dismiss the original complaint. 

Reversed and remanded for reconsideration in a matter 

consistent with this opinion. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

We Concur: 

-7j4[L2g Chief Justi 
Justices 

Justice R. C. McDonough did not participate in this decision.