State ex rel. Davis v. District Court of the Third Judicial District

*140 ORDER PER CURIAM:

The application for a writ of supervisory control to review and reverse the district court’s denial of summary judgment to the relator, and the granting by the district court of plaintiffs’ motion to strike the defenses of res judicata, statute of limitations, and statute of frauds, as legally insufficient was considered by the Court and an adversary hearing was scheduled and had on February 9, 1977, at 9:30 a.m. Briefs were submitted.

The case involves an action for breach of alleged oral contracts by which the decedent, George Davis, allegedly agreed to devise to plaintiffs certain ranches in exchange for plaintiffs’ services as managers of George Davis’ ranch properties. The defendant, herein is Aili E. Davis, the executrix of the Will and Estate of George V. Davis, deceased. The case is before this Court on defendant relator’s application for a writ of supervisory control by which relator contends that the district court erred in refusing to grant her motion for summary judgment on the grounds that plaintiffs’ claims to George Davis’ ranches are barred by res judicata and the statute of limitations and because the alleged oral contracts to devise are invalid under the statute of frauds. In addition, the relator contends that the district court erred in granting plaintiffs’ motion to strike the defenses of res judicata, statute of limitations, and statute of frauds as legally insufficient.

As to the issue of summary judgment reference is made to the opinion in State of Montana ex rel., Bruce A. Kosena, d/b/a The Pub, Relator, vs. The District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, The Honorable Arnold Olsen, Judge presiding, Respondents, No. 13700, decided February 22, 1977, which in effect states that an order denying summary judgment is interrogatory in character and not res judicata and subject to later review by the trial court if circumstances warrant.

*141 Therefore, the relief sought as to the summary judgment ruling is denied, however, the trial court’s order of May 21, 1976 striking the defenses is overruled and said defenses are reinstated.

Accordingly, we vacate that portion of the district court order striking the defenses dated May 21, 1976. This cause is remanded to the district court for further proceedings not inconsistent herewith.