Appendix — Bouma v. Larry C. Iverson, Inc.

8 2 5 1 6 2 2 Office-Supreme Court, U.S,

NUMBER A863 FILED

SUPREME COURT OF THE MAR @ 1983

UNITED STATES OF beeintaes“patati

AMERICA

RALPH BOUMA and MRS. RALPH BOUMA

ON PETITION FOR WRIT OF

CERTIORARI FROM THE SUPREME

vs COURT OF THE STATE OF

LARRY C. IVERSON, INC., MONTANA

Petitioners

Respondent

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME III

RALPH BOUMA JOHN ALBRECHT

Attorney Pro Se Attorney for Mrs. Ralph Bouma

P.O. Box 220 P.O. Box 193

Choteau, Mt. 59422 Choteau, Mt. 59422

Tel: (406) 466-5374 Tel: (406) 466-2621

NUMBER A863

SUPREME COURT OF THE

UNITED STATES OF

AMERICA

RALPH BOUMA and MRS. RALPH BOUMA

ON PETITION FOR WRIT OF

CERTIORARI FROM THE SUPREME

vs COURT OF THE STATE OF

Petitioners

LARRY C. IVERSON, INC., MONTANA

Respondent

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME III

RALPH BOUMA JOHN ALBRECHT

Attorney Pro Se Attorney for Mrs. Ralph Bouma

P.O. Box 220 P.O. Box 193

Choteau, Mt. 59422 Choteau, Mt. 59422

Tel: (406) 466-5374 Tel:(406) 466-2621

TABLE OF CONTENTS

VOLUME I

ITEM

Appendix A - Summary Judgment

for Plaintiff

Appendix B - Iverson vs. Bouma

(Mt., 1981) 639 P.2d 47

Appendix C - Order

Appendix D - Opinion and Order

Dismissing Appeal

Appendix E - Order

VOLUME II

Appendix F - Findings of Fact,

Conclusion of Law and Order

in consolidated cases Nuubered

8221/8073

VOLUME III

Appendix G - Memorandum in Lieu of

Transcript of Hearing Held

September 25, 1979

TABLE OF CONTENTS

VOLUME III

ITEM

Appendix H - Order

Appendix I - Motion for Disqualification

for Cause

Appendix J - Affidavit for Disqualfication

for Cause

Appendix K - Order

Appendix L - Petition for Rehearing

Pursuant to Rule 34, Montana Rules

of Appellate Civil Procedure

Appendix M - Receiver's Statement

to the Court (In Part)

Appendix N - Excerpt from Deposition

of Robert Keller

201

APPENDIX G

IN THE DISTRICT COURT OF THE NINTH

JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF

PONDERA

kekekekkekkkaerkkkekek kk KR KK KKK

LARRY C. IVERSON, INC.,

Plaintiff CAUSE NO. 8509

Vv

RALPH BOUMA, MRS. RALPH BOUMA, his MEMORANDUM IN LIEU

wife, CENTRAL BANK OF MONTANA, a Montana

Corporation, GREAT FALLS IRON WORKS, a OF TRANSCRIPT OF HEARING

Corporation, M. DEAN JELLISON, DOUGLAS L.

PEACOCK, JACK M. PITZER, GREAT WESTERN HELD SEPTEMBER 25, 1979

BANK AND TRUST COMPANY, and Arizona

banking corporation and successor in

interest to Pioneer Bank of Arizona, JOE )

GLENN, LYNN BARTLETT, and TOM DOWLING )

Defendants

kk KR KKK KKK KKK KKK KKK KKK KKK KKK KKK KKK KKK

202

The various motions pending in the above entitled matter came

on for hearing before the Court at the courtroom of the Pondera

County Courthouse at Conrad, Montana, commencing at 10:00 a.m. on

the 25th day of September, 1979, The hearing was held pursuant to

order of this Court dated July 19, 1970. A

The persons present were as follows:

WARREN C. WENZ, attorney for the receiver

CRESAP McCRACKEN, attorney for the corporation and the receiver

RAY F. KOBY, attorney for the corporation and the receiver

RANDALL SWANBERG, attorney for the corporation and the receiver

GALE GUSTAFSON, attorney for Mrs. Ralph Bouma

202A

RALPH BOUMA, appearing as attorney pro se

DALE L. KEIL, attorney for Mrs. Ralph Bouma

JAMES JOHNSON, attorney for the receiver

There was no testimony presented and no evidence adduced at the

hearing. The hearing consisted of oral argument presented by counsel

for the parties including RALPH BOUMA, attorney pro se, and dialogue

between the Court and counsel and RALPH BOUMA, attorney pro se with

respect to the legal and factual issues discussed during argument.

The argument was followed by various oral orders issued by the

Court from the bench.

This Court cannot reproduce the oral arguments advanced by counsel

or the dialogue between the Court and counsel. However the Court has

203

detailed notes relating to the oral orders issued from the bench and

these are being set forth herein verbatim. The verbatim orders

are set forth within quotation marks in subparagraph form.

All of the parties have previously been advised by copy of a

letter dated October 9, 1979, addressed to MR.S SARAH M. ROWE, Clerk

of the District Court, Pondera County, Conrad, Montana, that the

stenographic notes taken by the Court Reporter, CERESE PARKER, at

the September 25, 1979, hearing were stolen from her automobile. By

reference, this letter together with the attachments thereto, is made

a part of this Memorandum.

For the benefit of the defendants, RALPH BOUMA and MRS. RALPH

BOUMA, the Court will now restate the last paragraph contained in the

said letter dated October 9, 1979, which is as follows, to-wit:

204

"MR. GUSTAFSON is concerned about protecting his clients right

to appeal. I'm certain the MR. BOUMA has the same concern.

It is my contention that under these circumstance to oral

orders made from the bench will not be considered dated

September 24, 1979, but will bear the date that they are

in fact filed with the Clerk of Court in written form"

Shortly, after the hearing commenced, the Court announced that it

would hear oral argument with reference to the following issues:

"(1) The application of the plaintiff, GEORGE CAMPANELLA, as

Receiver for use and benefit of LARRY C. IVERSON, INC., to

withdraw as party plaintiff and to substitute LARRY C. IVERSON,

INC. as the party plaintiff and application to substitute

counsel representing the plaintiff.

205

"(2) Motion of the plaintiff for summary judgment.

"(3) The motion of the defendant, RALPH BOUMA, for summary

judgment on BOUMA"S counterclaims against the plaintiff,

(filed as Item 398)

"(4) The contention of BOUMA that his most recent request for

admissions stand admitted.

"(5) Defendant BOUMA"S motion for summary judgment dated

September 10, 1979."

First the Court heard oral argument with respect to the application

of the plaintiff-receiver to withdraw as party plaintiff and to sub-

stitute as party plaintiff LARRY C. IVERSON, INC., and application to

substitute attorneys to represent LARRY C. IVERSON, INC.

RALPH BOUMA, attorney pro se and attorneys for MRS. RALPH BOUMA,

206

argued that the application should be denied.

During the argument the Court asked BOUMA and counsel for MRS.

RALPH BOUMA if they contended that they would be prejudiced if the app-

lication were granted or did they contend that the granting of the

motion would change the nature of the cause of action against them.

Nothing in the responses to these questions indicated to the Court

that said parties would be prejudiced or that the granting of the

application would change the nature of the cause of action against them.

After listening to oral argument and being fully advised the Court

then orally ruled from the bench as follows:

"This application has been made pursuant to Order dated February

8, 1978, in combined Civil No. 8221 and 8073 pending in the above

entitled Court. The Court in this cause takes judicial notice

207

of the said Order dated February 8, 1978. The application to

substitute LARRY. C. IVERSON, INC., as the sole party plaintiff

is granted and IT IS ORDERED thatt the name GEORGE CAMPANELLA,

as receiver for the use and benefit of LARRY C. IVERSLN, INC.

be removed as party plaintiff to the above entitled cause

and that henceforth the party plaintiff shall appear as

"LARRY C. IVERSON, INC., Plaintiff."

"For authority the Court relies on Rule 25(c) M.R.Civ.Proc.,

59 AM Jur 2d 685 (Sec. 224-Parties and the annotation 135 ALR

A

"IT IS FURTHER ORDERED that plaintiff's motion for substitution of

counsel to represent the plaintiff, LARRY C. IVERSON, INC., be

208

and same is hereby granted."

Following the Order respecting Issue (1), the Court heard ar-

gument on Issue (2). Then the Court ruled from the bench as follows:

"Plaintiff in the above entitled action has moved the Court to

enter summary judgment in favor of the plaintiff and against

the defendants, RALPH BOUMA and MRS. RALPH BOUMA, declaring the

contract described in plaintiff's complaint herein dated

July 17, 1978, wherein LARRY C. IVERSON, INC. is the seller

and RALPH BOUMA is the buyer, to be null, void and of no force

of effect. The motion has come regularly to be heard by this Court

on the 25th day of September, 1979. The Court has read the briefs

of the parties in favor of the motion and opposing the motion

209

and has heard the oral argument of counsel. The Court, being

fully advised, has determined that the motion should be

granted.

"THEREFORE IT IS ORDERED, ADJUDGED AND DECREED:

(1) That the plaintiff's motion for summary judgment be,

and it is hereby granted.

"The Court now states its reasons for the granting of the motion.

"The material facts upon whidhthe Court relied and as to which

there was no material issue, are contained in the affidavits

filed herein by the respective parties, in the depositions, in

all pleadings and documents filed in these proceedings and in

court decrees and orders and findings of fact and conclusions

of law supporting same entered in Pondera County consolidated

210

causes 8221, 8073 of which this Court may take judicial notice.

"The contract which by this judgment is declared null and void

consists of a contract for deed and agreement, both dated July

17, 1968, and an agreement dated July 16, 1968, copies of which

are annexed to the answer of MRS. RALPH BOUMA filed herein,

as Exhibits A, B and C thereof.

"The corporate records reflect only two purported stockholders

meetings prior to the execution of the BOUMA contract. One

meeting was the organizational meeting of the corporation

held at Dillon, Montana at the Andrus Hotel January 30, 1967.

At neither meeting was there any consideration of a sale of the

land covered by the BOUMA contract, to BOUMA. However the bylaws

211

indicating adoption and approval on July 13, 1964, contained the

following provision:

"The Board of directors shall have the power and general

authority to sell, lease, morgage, exchange, or otherwise

dispose of the whole or any part of the property and

assets of every kind and description of the corporation,

for property, or for the whole or part'of the capital stock

of any other corporation...'

"Chapter 9,Title 15, 1947, R.C.M., as amended comprised part of

the former Montana Corporation Code, relating to the procedure

of the sale of corporate property and was in effect with respect

to LARRY C.IVERSON, INC., at the time of it's incorporation in

1964 through the time of the BOUMA contract dated July 1968.

212

"The Court finds that the rights of the stockholders of the

corporation at the time of the BOUMA contract were violated in

the context of a completely ultra vires transaction between

BOUMA and usurpers of de facto control of LARRY C. IVERSON, INC.

"LARRY C. IVERSON, INC. was incorporated in 1964 by CARL O.

IVERSON and with members of his family, to own a 4,520 acre

wheat farm near Ledger, Montana, east of Conrad, Montana,

which is the IVERSON farm which ultimately became the subject of

the BOUMA contract here in dispute.

"GIL & IRENE KEIERLEBER also bezame shareholders conveying

certain of their farm property to the company. Shares in the

company were initially issued to the IVERSON family members and to

the KEIERLEBERS. Both families became involved in financial

213

ventures in Arizona and Colorado, and their financial circumstances

deteriorated following incorporation. Some of the Iverson and

KEIERLEBER shares were pledged to Farmers State Bank to secure

loans. Eventually the Bank acquired the pledged IVERSON shares and

some and some of the KEIERLEBER shares by foreclosure. The

remainder of the KEIERLEBER shares were acquired by the KEIERLEBER

trustee in bankruptcy (STANLEY W. SWAINE) by virtue of the

bankruptcy. United Bank of Pueblo became owner of certain of the

IVERSON shares through Sheriff's sale on execution for satisfaction

of judgment on debts arising in Colorado.

"In 1968, Farmers State Bank and STANLEY W. SWAINE commenced a

stockholders derivative action against LARRY C. IVERSON, INC.

214

and persons controlling it (Cause No. 8073). In 1969, United

Bank of Pueblo (the Arkenasa Valley Bank) commenced an action for

similar relief and for corporate dissolution. Both actions

were consolidated during the trial of Cause No. 8221, and

concluded in 1971, with the exception of continuing jurisdiction

to govern the receivership of the corporation. GEORGE CAMPANELLA

originally appointed receiver pendente lite, was affirmed as

receiver in the final judgment.

"The present action arose out of the court ordered efforts of

receiver CAMPANELLA to recover the 4, 520 acre wheat farm at

Ledger, Montana which is and was the principle asset of the

corporation. Farmers State Bank, United Bank of Pueblo and

215

STANLEY W. SWAINE, as bankruptcy trustee for the KEIERLEBERS,

have supported this endeavor as a means of restoring to their share

ownership in the corporation, some actaul cash value.

"Findings No. 7,8 & 9 of the Decree in combined Cause No. 8221-8073

finds that Farmers State Bank of Conrad, United Bank of Pueblo,

and STANLEY W. SWAINE, Trustee in bankruptcy of IRENE A. KEIER-

LEBER and GILBERT F. KEIERLEBER became shareholders of LARRY C.

IVERSON, INC. in 1966 and 1967 which was prior to the execution of

the BOUMA contract in July 1968. These three shareholders acquired

717, 118 and 600 shares respectively of 1,875 outstanding shares,

owning percentages of 38%, 6% and 32% for a total percentage

ownership of 76% of the company at the time of the BOUMA contract.

216

"Under the provision of Chapter 9, Title 15, 1947 R.C.M. consent of

2/3rd's of the outstanding shares was necessary to effect a

valid sale of the IVERSON land which was the only remaining signi-

ficant corporate asset of appreciable value.

"In the absence of affirmative vote of Farmers State Bank of

Conrad, or absence of affirmative vote of United Bank of Pueblo

in combination with the vote of the trustee in bankruptcy would

have prevented obtaining the necessary affirmative 2/3rd's vote

authorize the sale. In fact, none of the shareholders voted in

favor of the sale, and, in fact, there was never a stockholders

meeting to authorize the sale in the first place, and there was

never opportunity to vote for or against the sale.

217

"The purported sale of the IVERSON farm was accomplished during

a so-called directors’ meeting at Phoenix, Arizona July 19, 1968.

The participants in the directors’ meeting were JOHN C. TREASWAY

and J. MILTON KRULL who were held to be corporate usurpers who

were ousted by the decree in combined Cuases No. 8221-8073.

CARL IVERSON was also indicated as having participated in the

board meeting, and MABEL IVERSON was indicated by the minutes

as having been the secretary at the time. The decree in

combined Cause 8221-8073 reveals that both the IVERSONS had

long since ceased to be shareholders in the company. Under

the comporate law in force at that time, its was necessary that

a member of the board of directors be a stockholder.

218

"The purported directors’ meeting held July 19, 1969, did not

observe any of the statutory requirements set forth in Chapter

9 Title 15 of the Montana Corporation Code which was then in

effect. No notice of stockholders was held; no provision was

made for protection of the rights of dissenting stockholders,

as the statutes require. No publication of notice or filing of

the resolution authorizing sale was published in the only

newspaper printed in Pondera County (The Independent-Observer).

and there was no filing of the certificate of proceedings and

resolution authorizing sale with the Pondera County clerk and

Recorder.

"There was no Montana attorney used in connection with the trans-

219

action although an Arizona attorney was empoyed for the purpose of

drafting papers. Thre was no title investigation which would have

been normal in such a large transaction. The contract by its very

terms, authorizes payment of 442% of the unpaid installment balance

of the contract directly to the corporate usurpers, KRULL and

TREADAWAY, instead of to the corporation as would be the normal

transaction.

"The transaction on its face was suspect and bore the hallmarks of

fraud.

"I previously mentioned th by-law provision authorizing the direct-

ors to sell the whole or any part of the assets of the coporation.

"The corporation record book is dated July 11, 1964, and the

original organizational meeting was held August 19, 1964.

220

"Sections 15-908 and 15-909, 1947 R.C.M. which were then in effect

require that such a by-law, in order to be effective, must be

noticed and published in a newspaper printed in the county, and

recorded in the office of the county clerk and recorder in the

same fashion as specific authorization meetings for sale of

substantially all of the corporation assets. The affidavits of

publisher JACK LEE and Clerk and Recorder GLADYS MORENSON, both

establish that no such notice was published, and no such filings

were made in the Clerk and Recorder's Office.

"Thus the Court finds that the by-law provision authorizing the

sale of corporate assets was invalid for failure to follow the

statutory procedure.

"This was the holding in Hanrahan v, Anderson,108 Mont. 218,

221

90 P. 2d 494 (1939), where the Montana Court said:'* * * It is

equally well settled in the absence of expressed statute, that

in the case of a solvent corporation which has accumulated property

for use inthis business, neither the directors, nor even the

stockholders except by unanimous vote, have the authority to dis-

pose of such property except in the futherance and in the ordinary

course of the business; for otherwise the authority is being used

to defeat, to that extent, the very purpose for which the

authority was given.,'

"* * * The reason for the rule is that the purpose of a sol-

vent corporation and its stockholders is not to be defeated

in whole or in part by the directors, not even by the stock-

holders without unanimous consent, unless expressly provided

222

by law. * * * It was to relax the rule in the latter

respect so as to prevent a small minority from thwarting

the will of the overwhelming majority that the statute

now appearing as Sec. 6004, supra (6004 later became Sec.

15-901 R.C.M. 1947) was enacted; and to make the relaxation

of the law effective, its requirements must be essentially

complied with. * * * The conveyance to Consolidated was

a nullity, for the stockholders meetings purporting to

authorize it were held on insufficient notice.'

"It would appear that there is another ground for finding that the

BOUMA contract is void. I refer to the statement of the author

appearing 19 AM Jur 2d 441 (Sec. 963, which is the article on

Ultra Vires Transactions). The author says:

"It is also to be observed, by way of limitation of the

223

doctrine of ultwa vires, that an attempted conveyance by

the officers of a corporation of its property without

authority does not involve the doctrine of ultra vires,

but of agents to act on behalf of their principle without

authority.’

"The author gives as authority for this statement Hotaling v.

Hotaling, 193 Cal. 368, 224 P. 455, 56 ALR 734.

"In Hotaling, the president's secretary assigned a deed of corporate

property to a grantee. At that time the bvard of directors con-

issted of five members and under the by-laws and under state law

a majority of the board of directors was necessary to conform a

valid cop-orate act. At the meeting which the resolution for the

sale of this property was adopted, there were only three directors

224

present and since one of the directors was the grantee named in the

deed, he was disqualified from voting and this left only two direct-

ors and this did not constitute a majority of the board.

"The California Court held the deed to be void and said:

"'It is suggested that the doctrine of ultra vires, as

applied to the private corporation, and particularly as

applied to a close corporation,as in the present case, should

be confined without narrow bounds, this is not a question of

ultra vires, but of agents assuming to act in behalf of the

corporate principle in a matter in which they lack authority

to bind the principle.'

"In this regard, the Court finds that defendant, RALPH BOUMA, knew

or should have known that the purported officers who authorized the

225

the BOUMA contract in July 1968, did not have authority to

authorize the sale. See the Answer and Counterclaim of defendant,

RALPH BOUMA filed September 22, 1972 (Item 96). In his Seventh

Defense Bouma says:

"'This defendant admits that he knew there was litigation

between LARRY C. IVERSON, INC. and Farmers State Bank of

Conrad at the time he entered into the contract for deed ated

July 17, 1968, with LARRY C. IVERSON, INC., such know-

ledge being the basis for the provision on said contract for

deed, referred to in paragraph 2, Second Defense, with

particular reference to the agreement therein, * * *,

"'This defendant futher admits that it was futher made known

to him that in Cause No. 8073, Farmers State Bank of Conrad

226

was challenging the authority of the officers of LARRY C.

IVERSON, INC., to act as such. Therefore, this defendant

hesitated to consumate the transaction with LARRY C. IVERSON,

INC., until EARL M. BERTHELSON, president of the very Bank

challenging the authority ofthe aforementioned officers * *,'

Following the foregoing Order and Opinion, the Court then announced

the bench:

"It appears that there's one other thing which must be handled before

this case can be concluded and this is the adjusting of accounts

betwen RALPH BOUMA and the plaintiff corporation.

"My first impression is that the ocrporation must restore to

RALPH BOUMA everything of value which it received under the

contract which ahs now been declared void and rescinded and that

227

RALPH BOUMA must do likewise. It would appear that this will

involve an accounting which will have to be submitted and

settled.

"The Court intends to recess for 10 minutes eso that counsel

for the plaintiff and MR. RALPH BOUMA can reflect on this

problem. At the end of the 10 minute recess, we will return

to court and counsel for the plaintiff and MR. BOUMA can each

give me his view on how this should be handled.

"It might be that you would like to each research this issue and

each of you submit his contentions on this issue together with

citation of authority.

"It might be that this issue of settling accounts should be

handled in the receivership action.

228

"At any rate the Court will be in recess of 10 minutes and at the

end of that time each of you will present your suggestions con-

cerning this matter."

Upon return from recess, the Court heard statements from respec-

tive counsel and then the Court made an oral ruling from the bench,

which the Court cannot reproduce werbatim at this time. Therefore

the Court now, at this later date, makes the following order:

IT IS ORDERED that on or before the 9th day of November, 1979,

te plaintiff shall file with the Clerk of this Court and serve upon

counsel for MRS. RALPH BOUMA and upon RLAPH BOUMA, counsel pro se,

a proposed summary judgment to be entered by the Court in conformity

with the orders and opinions set forth in this memorandum. Attorneys

229

for MRS. RALPH BOUMA and RLAPH BOUMA, attorney pro se, shall have

five (5) days thereafter to file and serve their written objections to

same. A copy of the proposed judgment and a copy of the objections

shall be forwarded to the Judge by mail addressed as follows:

LEONARD H. LANGEN

Judge of the District Court

P.O. Box 1110

Glasgow, Mt. 59230

IT IS FURTHER ORDERED that counsel for the plaintiff shall also

file and serve recommendations for method of adjusting accounts be-

tween plaintiff and defendants or plaintiff may, at its option,

make provision for same in the proposed judgment. Counsel for

plaintiff should also make recommendations for bringing this case to

a final conclusion, All of the documents relating to the foregoing shall

be filed with the Clerk of this Court on or before November 9, 1979,

230

and copies of all such documents shall be served upon defendants and

copies mailed to the undersigned Judge at the addres in Glasow, Montana.

Defendants shall have five (5) days thereafter within which to add

their recommendations or within which to make their objections to

plaintiff's proposals. Unless oral argument is specifically re-

quested, all of these matters will be deemed submitted to the Court as

of November 19, 1979, on the basis of written memorandum.

The Court then took up Issue (3), to-wit: BOUMA'S motion for

summary judgment on his counterclaim against the plaintiff (Item 198)

The Court announced that it appeared that the issues presented

by BOUMA;s counterclaims against the plaintiff should be resolved in the

accounting between plaintiff and BOUMA.

231

At this time the Court cannot recall exactly how it ruled on Issues

(4) and (5) and therefore at this time rules as follows:

Issue No. (4) and (5) became moot with the Court's ruling in

favor of plaintiff and against the defendants, RALPH BOUMA and MRS.

RALPH BOUMA with reference to plaintiff's motion for summary judgment.

However, so far as Issue (4) is concerned, it is noted that JUDGE

THOMAS Made his order in the above entitled cause dated December 2,

1977, suspending further discovery.

So far as Issue (5) is concerned, it is noted that defendnats

motion for summary judgment dated September 10, 1979, is a repetition

of BOUMA'S motion was legally insufficient and redundant and briefs in

support thereof contained matter which is redundant and scandalous in

nature and introduces extraneous material.

232

Even though Issue (5) is moot, I adopt by reference the reasons

given by JUDGE THOMAS in his order dated December 2, 1976, and ORDER

that defendants’ motion for summary judgment be and same is hereby

denied.

During the hearing plaintiff filed its written motion pursuant

to Rule 41 M.R.Civ.Proc. for the dismissal of the defendant, MRS.

RALPH BOUMA for the reason that with the repeal of the Dower Statutes

formerly applicable in the State of Montana that she no longer a real

party in interest.

Oral argument was ,»resented with respect to this motion and GALE

R. GUSTAFSON and DALE L. KEIL, attorneys for MRS. RALPH BOUMA, each

presented oral arguemnt in opposition to the motion.

RALPH BOUMA also made oral argument in opposition to the motion.

Subsequently by document entitled "Withdrawal of Motion" dated

233

October 19, 1979, the plaintiff withdrew its previously filed Rule

41 motion directed toward the dismissal from the suit of the defend-

and, MRS. RALPH BOUMA and by Order dated October 23, 1979, the Court

made its written Order that the motions to dismiss MRS. RALPH BOUMA

will be disregarded.

DATED this 26th day of October, 1979.

Leonard H. Langen

Presiding Judge

234

APPENDIX H

IN THE DISTRICT COURT OF THE NINTH

JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF

PONDERA

kkeaekk kk Kk KKK KKK KK KK kk

LARRY C, IVERSON, CIN., )

Plaintiff ) CAUSE NO. 8509

vs )

RALPH BOUMA, MRS. RALPH BOUMA ORDER

et al.,

Defendants

kKeKeKR KKK KK KKK KEK KK KKK KKK KKK KK KKK KKK

An Affidavit for Disqualification for Cause having been filed by

Defendant Ralph Bouma for the purpose of removing the Honorable Leonard

Langen from presiding further in the above-captioned matter on January

25, 1982.

235

Thereafter, on February 4, 1982, the Chief Justice of the Montana

Supreme Court appointed the undersigned District Judge to preside over

and conduct the disqalification proceedings in Pondera County Cause

No. 8509.

On February 9, 1982 a hearing was set to be conducted on

Tuesday, February 23, 1982 for the purpose of determining the issue of

disqualification of Honorable Leonard Langen, and attorneys of record

were thereupon notified, as well as Judge Langen.

That on February 9, 1982, plaintiff filed its motion to strike

the Bouma affidavit of January 25, 1982, with a Memorandum in Support.

That on February 22, 1982, Ralph Bouma filed a Memorandum in

Support of his Affidavit of Disqualification.

That on said February 23, 1982, Ralph Bouma appeared personally

236

and as pro se counsel; that attorneys McCracken and Koby appeared on

behalf of Plaintiff Iverson Inc.; that attorney Gustafson appeared on

behalf of Mrs. Bouma; that Honorable Leonard Langen did not appear

after notice; that Ralph Bouma presented evidence by way of witnesses

and exhibits; and that arguments were presented by Ralph Bouma, and

attorneys Gustafson and McCracken, and good cause showing; now,

therefore;

IT IS HEREBY ORDERED:

1. Removal of Hon. Leonard Langen as presiding judge herein is

denied, there being no sufficient showing of any personal bias or

prejudice on the part of said judge against Defendant Ralph Bouma, as

rulings by Judge Langen against the interests of the defendants were

upheld by the Supreme Court of the State of Montana.

237

2. Plaintiff's motion to strike the Bouma affidavit of dis-

qualification is granted.

3. No penalties shall be assessed against Ralph Bouma.

4, Honorable Leonard Langen is invited to proceed in this matter

as required by law.

5. The Clerk shall transmit copies hereof to the Chief Justice of

the Nontana Supreme Court, to Mr. Bouma, and to all counsel of record,

and to the Honorable Leonard Langen.

DATED THIS 25th DAY OF FEBRUARY, 1982.

Mark R. Sullivan

District Judge Presiding

By order of the Chief Justice

of the Montana Surpeme Court

238

APPENDIX I

IN THE SUPREME COURT OF

THE STATE OF MONTANA

ne nee aeerRreewreReReR

RALPH BOUMA and MRS. RALPH BOUMA ?

Appellants ) No. 82-81

ve ) MOTION FOR DISQUALIFICATION

LARRY C. IVERSON ) FOR CAUSE

Respondant

ees eee Pe RR eR eRe RRA Rae ae RAR eR RR RRR

Ralph Bouma moves the justices of the Montana Supreme Court to

disqualify themselves from hearing this appeal. The facts supporting

the disqualfication are outlined in the affidavit.

239

The reason for disqualification besides those stated in the

affidavit is that no justice should sit on a case when he rendered the

judgment, Section 3-1-802 (3) M.C.A. The Affidavit states facts which

show that the Montana Supreme Court was biased in rendering the Judgment

in Iverson, Inc., vs. Bouma (Mt., 1981) 639 P.2d 47.

Ralph Bouma asks that the seven substitute justices be named by the

Judicial Nominating Commission, Section 3-1-1001 et.seq. M.C.A. The

purpose of this procedure is to avoid any appearance of impropriety.

Dated this 30th day of August, 1982.

/s/ Ralph Bouma

Ralph Bouma

Appellant and Attorney

Pro Se

P.O. Box 220, Choteau, Mt.

240

APPENDIX J

IN THE SUPREME COURT OF

THE STATE OF MONTANA

kekeek kee Ke eR RK KR KK kk

RALPH BOUMA and MRS. RALPH BOUMA )

Appellants ) NO. 82-81

vs )

LARRY C. IVERSON, INC. ) AFFIDAVIT FOR DISQUALIFICATION

Respondent )

FOR CAUSE

keene kekhkekaekke kkk KKK KKK KKK KKK KKK KKK KK KK KK

State of Montana)

County of Teton ‘ety

I, Ralph Bouma, after being first duly sworn, depose and say:

1. This affidavit is made for the purpose of disqualification for

cause of the seven juscices of the Montana Supreme Court who enterred

the order in Iverson vs. Bouma, Supreme Court Number 80-83 which

24]

was heard on oral argument on September 15, 1981, for the reason that

Affiant believes the he cannot have a fair and impartial hearing

due tatheir bias and prejudice against him in this case and because

those justices would be sitting as judge of their own prejudice in their

order, Iverson vs. Bouma (Mt. 1981) 639 P.2d 47.

2. On September 25, 1979, Judge Leonard Langen filed on public

record an affidavit filed in camera (Docket Number 474) together with

an application to impanel a grand jury (Docket Number 471-472) over

the sremous objection of affiant and counsel for Mrs. Ralph Bouma on

the basis that five of the justices of the Montana Supreme Court were

named therein and that counsel for Larry C. Iverson, Inc., would use

the same to emotionalize and prejudice the Montana Supreme Court making

it impossible for affiant and his wife to have a fair appeal (Memorandum

242

in Lieu of Transcript, Docket Number 485, at 5, Transcript of February

23, 1982, Hearing at 171).

3. <A few days prior to the September 15, 1981, oral argument in

Iverson vs. Bouma, Supreme Court Number 80-83, Attorney Gale Gustafson

(Counsel for Mrs. Ralph Bouma) received notice from the Commission on

Practice of the State Bar of Montana that in the Fall of 1979 Chief

Justice Frank Haswell had received a copy of the Bouma Afficait (Docket

Number 474). He directed the Commission to make an investigation.

This highly intimidated Gustafson at the September 15, 1981, oral

argument before the Montana Supreme Court.

4. Two minutes prior to the oral arguemnt before the Montana

Supreme Court Affiant and Gustafson were summoned into Chambers. They

were notified that Affiant would not be allowed to address the Court

243

as Attorney Pro Se. They were told that Gustafson would be required to

present argument for Affiant and Mrs. Ralph Bouma.

5. Affiant objected to this on the basis that Gustafson could

not be effective counsel for Affiant. In addition, Affiant's constit-

utional and statutory right to represent himself was being violated.

6. At the conclusion of Gustafson's argument Justice Morrison

asked, "Now, Mr. Gustafson, what has all this got to do with the

issues before the Court?" This demonstrates that Gustafson did not

effectively argue the legal issues of Affiant.

7. At the beginning of oral argument the counsel for Iverson,

Inc., Ray Koby said, "One of them that was filed was an affidavit

which was submitted to Judge Langen in order to encourage the Judge

to impanel the grand jury to consider criminal proceedings against

244

various parties involved in the litigation... This affidavit is

document 474 filed September 25, 1979. In this affidavit which is, I

don't know, 30 pages long and its sworn to by Ralph Bouma under oath,

there in paragraph 44, that I believe the Court ought to know about.

...In paragraph 44 starts out, and in furtherance of the conspiracy

referred to above in Paragraph 9, herein, Wesley Castle, James

C. Harrison, Frank I. Haswell, Gene E. Daley, and John Connley Harrison

individually and as justices of the Montana Supreme Court under color

of state law and or authority in concert with the parties referred to

above in Paragraph 30 herein, and in strategy, publicly proclaimed by

Cresap F. McCraken, willfully purposely and in bad faith reinterated

in their April 5, 1974, Opinion of Montana Supreme Court Cause

245

12514, the comment Frank I. Haswell made at the March, 1974, hearing

which reads as follows..."

8. Gustafson, on behalf of Ralph Bouma and Mrs. Ralph Bouma, ob-

jected to his argument saying that Koby was trying "to emotionalize the

court and steer it from the issues at hand:

9. Koby concluded his argument by saying, "I have been advised by

my co-counsel that I have extremely over-killed".

10. Cresap McCraken opened his arguemnt for Iverson, Inc., by

saying, "Its very easy to get emotional and get carried away under the

circumstances of this litigation." This shows that Counsel for Iverson,

Inc., were working on emotions and not the facts or the law.

ll. The attorneys for Iverson, Inc., were given a full hour to

incense and emotionalize the Court on issuestotally irrelevant to the

246

validity of the land contract. Affiant was without effective counsel

because of the lat minute substitution of counsel by the Supreme Court

and was forbidden to address the Court at all.

12. Affiant filed a civil rights action alleging that the justices

of the Supreme Court violated his civil rights. This was referred to

in the Court's opinion in Iverson, Inc., vs. Bouma (Mt. 1981) 639 P.2d

47, 53. The justices so named should not preside in .this case, Johnson

vs. Mississippi (1971) 403 U.S. 212, 29 .Ed. 2d 423, 91 S. Ct. 1778.

13. This affidavit has been made in good faith.

Dated this 30th day of August, 1982.

/s/ Ralph Bouma

Ralph Bouma

Appellant and Attorney Pro Se

Box 220, Choteau, Mt.

247

Subscribed and sworn to before me this 30th day of August, 1982.

/s/ Jonnie Ruth Conatser

Notary Public for the State of

Montana

Residing at: Choteau, Mt.

My Commission: 5.21.85

248

APPENDIX K

IN THE SUPREME COURT OF

THE STATE OF MONTANA

kkekek kkk kk KR KKK KR Kk eR KK

RALPH BOUMA and MRS. RALPH BOUMA, )

)

Appellants, NO. 82-81

vs )

LARRY C. IVERSON, ) ORDER

Respondent )

kkeReK Ke eK KKK KKK KR KEKE KEK KEKE KK KKK KKK KKK Kk Ke Ke

PER CURIAM:

Ralph Bouma has filed herein a motion to disqualify the Justices

of this Court, with the exception of Justice Shea, from further par-

ticipation in this cause for the reasons set forth in his motion. The

Court has examined, discussed and considered said motion.

249

IT IS ORDERED:

1. The motion of Ralph Bouma for disqualification for cause is

denied for the reasons set forth in respondent's memorandum filed

herein.

2. The Clerk is directed to mail a true copy hereof to Ralph

Bouma personally, and to counsel for Mrs. Ralph Bouma and respondent

Larry Iverson, Inc.

DATED this 9th day of September, 1982.

For the Court,

By. Frank Haswell

Chief Justice

250

APPENDIX

IN THE SUPREME COU!.T OF THE

STATE OF MONTANA

aw ee VR. RS ARR. 88 S88

)

RALPH BOUMA and MRS. RALPH BOUMA No. 82-81

Appellants )

PETITION FOR REHEARING PURSUANT

vs ) TO RULE 34, MONTANA RULES OF

LARRY C. IVERSON, INC. APPELLATE CIVIL PROCEDURE

Respondent

ke KK KKK RK KEK KKK KK KKK KK ee ek Ke ee me ee ke eR ke

Ralph Bouma, Pro Se, and Mrs. Ralph Bouma by her attorney, John

Albrecht,petitions the Supreme Court of the State of Montana for a re-

hearing of the Opinion and Order Dismissing Appeal filed On December 2,

1982. The reasons for the Re-hearing are:

251

1. Damages in the amount of $500.00 were awarded to Respondent

Larry C. Iverson, Inc., pursuant to Rule 32. Larry C. Iverson, Inc.

did not request such relief for this reason, Iverson waived any right

to such relief.

2. Since Iverson did not request such relief, Boumas made no

argument on the issue. They were effectively denied due process which

includes notice and opportunity to be heard, Memphis Light, Gas and

Water Division vs. Croft (1978) 436 U.S. 1, 16, 19.

3. Rule 32, M.R. App. C.P., allows damages on appeal to be award-

ed only if the appeal was taken for purposes of delay. No delay was

caused by the Boumas taking this appeal.

4. Rule 32, M.R. App. C.P., allows damages on appeal only if

the appeal is without substantial or reasonable grounds. One of the

251

grounds for appeal was the bias and prejudice of the trial court judge.

Iverson filed a writ of supervisory control saying that issue could

not be raised. The Supreme Court denied that writ. In doing so, the

Supreme Court implicitly held that the bias and prejudice of the

trial court judge could be raised.

5. The Montana Supreme Court held the Boumas' appeal to be

"frivolous". Black's Law Dictionary, Revised 4th Edition (1968)

defines a frivolous appeal as "one presenting no justiciable quest-

ion and so readily recognizable as devoid of merit on face of record

that there is little prospect that it can ever succeed." If this appeal

was frivolous, then the Supreme Court should have granted Iverson's

application for a writ of supervisory control.

6. Judge Leonard Langen's bias and prejudice was shown by the

252

following facts:

A. He was appointed by Judge R.D. McPhillips. The uncontroverted

evidence showed that Judge McPhillips intended to appoint a judge

unsympathetic to the Boumas (Transcript of the February 23, 1982,

Hearing at 37-39).

B. Judge Langen summarily disposed of a number of the Bouma's

defenses. (Transcript of February 23, 1982, Hearing at 64-65).

C. Judge Langen appeared prejudiced against the Boumas (Trans-

cript of February 23, 1982 Hearing at 101, 105). The Supreme

Court ignored unrefuted testimony by Mr. Murray (expert land

appraiser for Iverson, Inc.) that he had never been in a court in

35 years where there was more bias on the part of the court that

253

there was toward the Boumas at the hearing held by Judge Langen

on September 25, 1979 (Transcript of February 23, 1982 hearing at

105).

D. Judge Langen ordered an affidavit of Ralph Bouma filed. The

affidavit accused five justices of the Supreme Court of crimes.

Bouma asked that the affidavit not be filed to prevent the creation

of bias and prejudice on the part of the Supreme Court. Judge

Langen ruled he had no authority to impanel the grand jury yet or-

dered the affidavit filed (Memorandum in Lieu of Transcript of

Hearing Relating to Application for Order Summoning a Grand Jury

held in September 25, 1979, at 5, Transcript of February 23, 1982,

Hearing at 170, 171).

E. Judge Langen summarily substituted a partially reconstituted

254

corporation for the Receiver.

F. Judge Langen acted as if he were counsel for one party

(Transcript of February 23, 1982, Hearing at 85, 89 and Transcript

of December 20, 1979 Hearing).

G. Judge Langen was the Defendant in a civil rights action brought

by the Boumas.

7. The Montana Supreme Court's bias and prejudice was shown by

the following facts:

A. The Montana Supreme Court refused to allow Ralph Bouma to

argue his case yet allowed Iverson's attorneys the right to

oral argument.

B. Five of the seven justices were named in a civil rights action

255

brought by the Boumas.

C. Five of the seven justices were named as possible defendants

in an affidavit requesting the impaneling of a grand jury. This

affidavit was used at oral argument by Iverson's attorney to

induce and prejudice the Supreme Court's failure to consider

numberous issues.

8. The Montana Supreme Court's order of December 2, 1982,

is in direct conflict with Johnson vs. Mississippi (1971) 403, U.S.

212, 29 L. Ed. 2d 423, 91 S. Ct. 1778. In Johnson the United States

Surpeme Court held that a State Court Judge may not hear the case of

a party if the judge is a Defendant in a civil rights action brought

by that party. In this case, both the Cupreme Court Justices were

named and the Trial Court Judge was a Defendant in a. action by the

CONCLUSION

For the above stated feasons, the Montana Supreme Court should:

1. Vacate the order awarding $500.00 damages on appeal.

2. Hear the appeal on its merits.

3. Reverse the summary judgment of the Trial Court and order

a jury trial.

Dated this 10th day of December, 1982.

Ralph Bouma

Attorney Pro Se

P.O. Box 220

Choteau, Mt.

John Albrecht

Attorney for Mrs.

Bouma

257

APPENDIX M

IN THE DISTRICT COURT OF THE

NINTH JUDICIAL DISTRICT OF

THE STATE OF MONTANA IN AND

FOR THE COUNTY OF PONDERA

kkKaeak kK Kk KKK KKK KK Kk Kk

UNITED BANK OF PUEBLO (formerly

Arkansas Valley Bank), a Colorado

banking corporation,

Plaintiff

vs

LARRY C. IVERSON, INC., a Montana

corporation, CARL 0. IVERSON, MABEL

IVERSON, LARRY C. IVERSON, M. DEAN

JELLISON, and FARMERS STATE BANK, a

Montana Banking Corporation,

Defendants

258

FARMERS STATE BANK OF CONRAD, a Montana

banking corporation, and STANLEY M. SWAINE,

Trustee of the estates of Gilbert F. Keierleber

and Irene A. Keierleber, Bankrupts,

Plaintiffs

vs

LARRY C. IVERSON INC., a Montana

corporation, et al,

Defendants

Nos. 8221 and 8073

RECEIVER'S STATEMENT TO THE COURT

(IN PART)

COMES NOW, George L. Campanella, Receiver in the above-entitled

causes, and respectfully submits the following statement to the Court

259

pursuant to its Order dated December 2, 1977, and in support of his

Administrative Petition herein dated December 1, 1977. He has pet-

itioned for a court ordered abandonment of Civil Cause No. 8509 as

an asset of Larry C. Iverson, Inc., for the following reasons:

1. IN THE OPINION OFTHE RECEIVER AND HIS COUNSEL THE PRIMARY

EQUITABLE BASIS SUPPORTING THE SUIT IS PROBABLY NOT PROVABLE.

Apart from the first two counts of the Complaint in Civil Cause

No. 8509 (which are grounded upon the voidness or voidability of the

Contract for Deed because of corporate incapacity and/or improper

authorization), the primary basis for the lawsuit was an inequitable

disparity in the valuations of the two farms involved in the transaction

resulting in an unjust enrichment of Mr. Bouma and other at the expense

261

of the corporate estate. Various counts of the Complaint sound in

different areas of equity, however, all are bottomed upon the assumption

that in the process of the corporation's selling farmland, taking another

farm in on trade, and eventually selling the traded-in farm to certain

relatives of Ralph Bouma, the farms were valued improperly such as to

result in a loss to Larry C. Iverson, Inc. af well over $100,000.00

based upon true market values of the two farms. At the hearing of this

court upon the petition of the stockhilders of Larry C. Iverson, Inc.,

asking the court to order the Receiver to file the suit in question, the

stockholders made reference to a professional appraiser they had hired.

His conclusions were represented to be that on July 17, 1968 (the date

of the Bouma contract), the market value of the corporation's farm

was $791,000.00, and the value of Bouma's trade-in farm (Agawam)

262

was $130,000.00, resulting in a market value difference of $661,000.00.

The stockholders then made reference to the fact that the Bouma contract

actually undervalued the Iverson farm at $735,000.00 and overvalued the

Agawam or trade-in farm at $216,000.00, for a contract difference of

$519,000.00. This resulted in a "loss" to Larry C. Iverson, Inc., of

approxiamtely $142,000.00. Because of this stated fact, because of

the findings of fact in the above-entitled actions regarding the

persons found to have been in control of corporate affairs, and

because of other representations to the court by the stockholders of

much evidence of inequitable involvement by Ralph Bouma, the Receiver

was ordered to file the lawsuit.

During the course of the lawsuit, the deposition of Mr. Hoover, the

appraiser who had been hired by the stockholders, was taken by Mr.

263

Bouma and his counsel. As a result of that deposition, some degree

of doubt was raised in the mind of the Receiver and his counsel regard-

ing the ability of the appraiser and the validity of his work in this

particular instance. These feelings were discussed with the attorneys

for the stockholder bands who reluctant agreed that a new appraiser

should be hired to fortify the results of the first one. As a result

a Mr. Murray, MAI Appraiser, was hired and completed an appraisal of

the two properties in July of 1976, appraising then however as of

July 17, 1968. His opinion is that the corporation's farm at that

time was worth $709,000.00 on the market and the trade-in Agawam

farm was worth $199,000.00, for a net difference of $510,000. In

other wor. apparently in his opinion the corporation would have rec-

eived a benefit of approximately $9,000.00 over actual market prices

under the Bouma contract.

In the meantime, in preparation for tial, Mr. Bouma hired the

services of two independent appraisers, a Mr. McKay and a Mr. Hofland

who concluded that the net difference to the corporation in market

values of the two pieces of land were $447,000.00 and $502,000.00,

respectively, both less than the contracted difference. A tabulation

of the contract values and the appraised values by all appraisers is

as follows:

1968 VALUES

AGAWAM IVERSON DIFFERENCE

CONTRACT $216,000.00 $735,000.00 $519,000.00

HOOVER | $130,000.00 $791,000.00 $661,000.00

MCKAY $188 ,000.00 $635,000.00 $447,000.00

HOFLAND $174,000.00 $676,000.00 $502,000.00

MURRAY $199,000.00 $709,000.00 $510,000.00

Simply as an exercise, it is interesting to note that the actual

average of all figures for the Agawam farm is $172,750.00, for the

corporation's farm is $702,750.00, the average difference being

$530,000.00. For each series of valuations, if the high value and

the low value are excluded, the average of the remaining values for

the Agawam farm is $187,000.00, for the corporation's farm is

$706,666.00, and the difference would be $519,666.00, or nearly

an identical figure to the actual contracted difference.

The Receiver is not contending that the contract valuations

were correct nor that any given appraisal, with the exception of Mr.

Hooever's, is good or bad. However, he and his counsel are of the op-

inion that it would be extremely hard to prove that the valuation

266

difference was actually enough higher than the contracted difference to

be outside of the range of a normal sale which could have been bargained

by any buyer and seller of similar property at the time of the contract.

As such, the chances of proving appreciable damage to the corporation

estate so as to move a court of equity would be slim. In other words,

even assuming that Mr. Bouma could be proven to have very unclean

hands, a court of equity may have a great deal of difficulty in taking

the land away from him and adjusting accounts, or even re-forming the

contract, if the corporation is not provably worse off because of |is

actions.

In fairness, the Receiver does acknowledge that such an opinion

is a matter of professional legal judgment, and there does exist a

certain degree of latitude for other attorney's opinions. In fact,

267

the opinions of the counsel for the stockholders of Larry C. Iverson

Inc. do differ somewhat.

END OF EXCERPT

268

APPENDIX N

EXCERT FROM THE DISPOSITION OF

ROBERT KELLER

PRESIDING JUDGE

kkeaekk kK Kk RK

FARMERS BANK OF PUEBLO

vs

IVERSON AND FARMERS STATE BANK

OF CONRAD

vs

IVERSON, CONSOLIDATED Cause Numbered 8221/8073

kkekekekkk kkk KK

9th Judicial District, State of Montana

Pondera County

269

I would like to direct your attention,Mr. Keller, to a statement

in Defendants’ Exhibit No. 53 and have you compare that with

what is in the transcript.

(PAUSE TO COMPLY)

A

Q

Okay.

Do you have any place that you find in the transcript, the term-

inology which we see here at the early part of the instrument on

the second page of Defendants’ Exhibit No. 53, where it speaks of

line 4?

No

On page 1026, Volume 5, of the transcript, the record does not

show what occurred? page 1026 starts as follows, and then it

says:"Mr. Stevens," do you see that?

Oo Ff? © ?

270

Yes.

And then it goes on, it quotes what's in here, I believe?

Yes.

"I have no further questions."' That paragraph seems to be a

quote directly from the transcript, doesn't it?

Yes

Now, then, it says here, "Mr. Treadaway."' Do you see that in

there? It says, "Yes, Your Honor," so does that appear to be

a quote from the transcript:

Yes

Okay, now, then, it says in Paragraph 5, "The following occurred

in open court, But was not recorded."' Do you see that?

Yes

Now, do you see that recorded in the transcript?

No

Do you recall any statement to the effect that we see in the

terminology of our Defendants' Exhibit No. 53, where it says:

"The following occurred in open Court, but was not recorded,"

and it says: "Mr. Treadaway, how long do you thing it will take

for the presentation of your defense?" Mr. Treadaway: Well,

the plaintiff has taken 2% weeks to present their case, and I

anticipate that it will tkae us about the same length of time

to put on our defense." "The Court: Mr. Treadaway, you may be

sitting in this court for the next 2% weeks, but I certainly

am not going to be here; in fact, I have checked out of the

272

motel and I will be on my way to Kalispell at 5:00 o'clock this

afternoon." Do you recall that incident happening in open court?

No.

Would you deny that it did happen?

In open court, in that manner?

Yes.

Yes, There isn't any qestion taht the tenor of the discussion could

have been held and it would certainly have been in jest. This is

the third session we had had in Conrad for this thing, which means

that I'm prepared to go over there for as long as I have to go,

and I don't know what day that occurred, but whatever day it was,

it was a time when they all anticipated that we would be done, and

I'm booked, so it means coming back again. Nowhere did it come like

273

this. This comes out like they're cut off, and I submit to you

that the part that is in the report in the record is the question

of where are they going to go in their defenses, together or

separately, and they intend to go the way they're going.

Whether, it was put on the record, or whether it was not put on the

record, whether it was in jest or whether it was meant, do you

deny that such terminology could have taken place at that interim?

At that interim?

At the time when the plaintiff rested their case and we were

looking to a defense:

Yes, I'd deny that. The only time this could have occurred like that

would have been at a break in chambers and a question of how much

longer do we go and how we reschedule if we can't get done today.

274

Now, if other witnesses besides Krull and Treadaway were present--

and also remember it as Mr. Treasway and Krull have put in their

affidavit -- that they also remembered that, that it happened

exactly that way, would it be your contention, then, that you

flatly deny, or do you say that it is possible that it was

misunderstood, or what is your explanation of that?

Well, who else are you talking about?

Well, we'll say, for an example, if I could produce as many as

ten witnesses that would say they remembered it exactly that

way?

Ten Witnesses?

If I could produce that may. I'm using a hypothetical.

Well, that's what I'm trying to ask you. Who are you talking

275

about now is impeaching testimony, so I want to know who is it that

says that I said that?

Okay, if I would tell you that Ralph Bouma was present and would

testify that that happened, would you say that it's absolutely not

true?

Yes

If Ralph Bouma's parents were both present and would say that that

happened, would you say it's not true?

Yes

If Mr. Bill May was present and would say that it happened, would

you say it's not true?

fhen I would re-examine my whole card.

What about Sandy McCracken, if he would say that he was present

276

and it happened, would you deny that it's true?

Just as it says here?

Well, relatively the same, yes.

Well, no, is this: the way that they say it occurred? I said if

something happened in jest, but it's not complete. Nothing about

this..transcript is consistent with this. The opening of it says,

do you want to have it separately, or do you want to have it

together? The close of it, when they're finally done, I'm

surprised that they're done when they're done. The last page of

the transcript indicates a surprise. I didn't think they would

quit when they quit. The whole proceeding on this thing, starting

back with the preceding summer, indicates that I have trudged

back across that Divide in the worst weather again and again

277

and to say that this thing comes out that they're going to be

limited and that's that, that's incredible, just simply incred-

ible, so if anybody says that I said it in that manner, then I

say they're wrong.

If it were off the record and was in jest, would it make it that

it didn't happen?

Oh, no, no it doesn't make it that it didn't happen, but it

wouldn't be in the way it's set forth here.

But on the other hand, is it possible that this would have been

reason why Krull and Treadaway may have made such a trememdously

short defense, because they felt limited, or possibly took you

seriously, if it was in jest:

No

288

You don't feel that that caused them to shortcut their defense:

I want to tell you that if I told them specifically they only have

so much time to do something, there would be a record of an

objection by Treadaway. I.think there'd be one by Krull. It

would be no different than if I told you that you're limited,

and don't recall you sitting still for any limitations during

the: course of the trial.

But do you recognize that there are some things that we've

been bringing out today all along, that when they got into an

area and an objection was sustained, in every instance, they

completely left the area and never did come back to it,

Well, you've picked out the examples where they left, and that's

true,