
    PEAVEY COMPANY and EDWARD PAINE, JR., Plaintiffs and Appellants, v. AGRI-SERVICES, INC., a Montana CORPORATION, AND GENERAL INSURANCE COMPANY OF AMERICA, et al., Defendants and Respondents.
    No. 12452.
    Submitted Nov. 29, 1973.
    Decided Dec. 28, 1973.
    Rehearing Denied Jan. 21, 1974.
    517 P.2d 718.
    
      Moulton, Bellingham, Longo & Mather, Ward Swanser (argued), Billings, Holter & Heath, Robert Holter (argued), Bozeman, for plaintiffs and appellants.
    Towe, Neely & Ball, Sandall, Moses & Cavan, Bruce R. Toole (argued), Billings, Burns & Solem, Chinook, Stuart C. MacKenzie (argued), William M. Solem, Chinook, Weber, Bosch, Kuhr, Dugdale & Warner, John Warner (argued), Havre, Hickman & Moore, Harlowton, Jones, Olsen & Christensen, Robert L. Zimmerman, Billings, Gallagher & Archambeault, Glasgow, Berger, Anderson, Sinclair & Murphy, Longan, Holmstrom & Cebull, Billings, for defendants and respondents.
   MR. JUSTICE JOHN C. HARRISON

delivered the Opinion of the Court.

In the latter part of 1971, Agri-Services, a public warehouse operation, got into financial difficulties and ceased operations. At that time it owed an undetermined amount for grain purchased and delivered to it. Agri-Services had previously filed the bond required by section 3-228, R.C.M.1947, in the amount of $20,000 with the Montana Department of Agriculture. The bondsman was General Insurance Company of America (hereinafter known as General). The record shows that at least one of the appellants, Peavey Company, on November 18, 1971, notified the Montana Department of Agriculture of the situation and that it had filed suit against both Agri-Services and General on that same day. Paine filed a separate action one day later on November 19, 1971. Subsequently seven other suits were filed against Agri-Services, other named defendants and General in various combinations at dates varying from late November, 1971 to December 1972. None of these suits have been reduced to judgment. Paine took judgment against Agri-Services and General on May 5, 1972 and Peavey took judgment against both defendants on September 13, 1972. Neither judgment was appealed.

On November 8, 1972, the district court, on its own motion, ordered that no execution should issue in any of the cases, including the two that had been reduced to judgment, for the reason that the $20,000 bond should be prorated among all the claimants. On December 11, 1972, again upon its own motion, the district court issued an order consolidating all of the cases, and which in pertinent part states:

• “* # * and it further appearing to the Court that the common question of law is whether or not said $20,000 paid into Court should be distributed pro rata or shall be distributed to the first who filed and got judgment; and the Court having already ruled that said $20,000 shall be distributed pro rata regardless of the time of judgment:
“IT IS THEREFORE ORDERED, that all said actions are hereby consolidated into one action for the purpose of settling the legal questions involved. * # *”

Paine and Peavey moved to set aside the consolidation order, and the order to prorate the bond. From a denial of that motion, and the orders to consolidate and to distribute the bond pro rata, Paine and Peavey appeal.

Appellants cite several issues for review but in our view only one need be dealt with. That issue is whether the district court could consolidate the two cases which had been reduced to judgment with the other cases pending before it but which had not been reduced to judgment.

As a preliminary, we note that had the Montana Department of Agriculture acted as it was under a duty to do, this case might not be before the Court. Section 3-229, R.C.M. 1947, says:

“Whenever any warehouseman, grain dealer, track buyer, broker, agent or commission man is found to be in a position where he cannot, or where there is a probability that he will not meet in full all storage obligations or other obligations resulting from the delivery of grain, it shall he the duty of the department of agriculture, through the division of grain standards, to intervene in the interests of the holders of warehouse receipts or other evidences of delivery of grain for which payment has not been made, and the department of agriculture shall have authority to do any and all things lawful and needful for the protection of the interests of the holders of warehouse receipts or other evidences of the delivery of grain for which payment has not been made, and when examination by the department of agriculture shall disclose that for any reason it is impossible for any warehouseman, grain dealer, track buyer, broker, agent or commission man to settle in full for all outstanding warehouse receipts or other evidences of delivery of grain for which payment has not been made, without having recourse upon the bond filed by said warehouseman, grain dealer, track buyer, broker, agent or commission man, it shall then be the duty of the department of agriculture for the use and benefit of holders of such unpaid warehouse receipts or other evidences of the delivery of grain for which payment has not been made, to demand payment of its undertaking by the surety upon the bond in such amount as may be necessary for full settlement of warehouse receipts or other evidences of delivery of grain for which payment has not been made. It shall be the duty of the attorney general or any county attorney of this state to represent the department of agriculture in any necessary action against such bond when facts constituting grounds for action are laid before him by the department of agriculture.” (Emphasis supplied)

By its failure to act, the Department of Agriculture has permitted a situation to grow in which it is inevitable that some of the class which section 3-229, E.C.M.1947 was designed to protect, will be injured far in excess of that which they would have been had the Department of Agriculture acted as it was under a duty to do. (In addition we note that the statute does not require, nor does the Department of Agriculture have a regulation defining, a time limit for submission of claims in the event that the Department of Agriculture does act in accordance with its statutory duty. Such would seem necessary if these matters are to be settled with reasonable certainty and promptness.) We invite the attention of the Legislature and the Department of Agriculture to this matter.

We also note that the question of whether a creditor can bring an action on his own behalf where the Department of Agriculture does not act pursuant to section 3-229, R.C.M. 1947, has been settled by State ex rel. Farmers Elevator Co. v. Dist. Ct., 147 Mont. 72, 75, 410 P.2d 160, 162. It said:

“* * * However, it (referring to section 3-299, R.C.M. 1947) does not, in our view, preclude an aggrieved party from bringing its own action independently.”

In this case it is undisputed that the Montana Department of Agriculture failed to act, and so the parties quite properly proceeded to protect their rights by bringing independent actions.

As we see it, the crux of this case is the effect of the consolidation order of December 11, 1972. That order was founded upon the authority of Rule 42(a), M.R.Civ.P., which reads:

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

We hold that the Peavey and Paine cases were not “pending before the court” so as to make them amenable to consolidation.

This Court had occasion to discuss the nature of a “judgment” and a “pending action” in Davis v. Bell Boy Gold Min. Co., 101 Mont. 534, 540, 54 P.2d 563, in connection with section 9313, Rev.Codes, 1921, which was the predecessor of Rule 54(a), M.R.Civ.P. Section 9313. Rev.Codes, 1921 reads:

“A judgment is the final determination of the rights of the parties in an action or proceeding.”

Rule 54(a), M.R.Civ.P., reads:

“A judgment is the final determination of the rights of the parties in an action or proceeding and as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.”

As can be seen, Rule 54(a), M.R.Civ.P. did not change the definition but rather incorporated section 9313, Rev.Codes, 1921, and spelled out the definition in more precise detail. In any case the definitions are sufficiently similar so that, within the context of this case, what was said in Davis is applicable here. It reads:

“* * * The limitation of time within which an appeal may be taken is fixed by law so as to bring litigation to an end and define the limit of the trial court’s jurisdiction, and, although a judgment is defined as the final determination of the rights of the parties to an action or proceeding (sec. 9313, Rev.Codes, 1921), the action must be regarded as still pending within the meaning of the section until final determination on appeal, or until the time for appeal has passed.” (Citations omitted)

From this is follows that when the time for appeal has passed the case is no longer “pending before the court”. It is undisputed that the time for appeal on both cases has passed. Hence, they are no longer “pending before the court” and they cannot be brought within the purview of Rule 42(a), M.R.Civ.P.

It should be borne in mind that the reason for Rule 42(a), M.R.Civ.P. is expressed in the rule itself: “* * * tend to avoid unnecessary costs or delay.”

Thus.the purpose of consolidation is to expedite the business of the court, economically and with justice to the parties. See Wright & Miller, Federal Practice and Procedure: Civil § 2382. We fail to see how consolidating two cases which have been reduced to judgment with cases which, at the time of the order had not been reduced to judgment, would serve this purpose.

We note that from the inception of the Peavey suit, any of the claimants could have intervened, Eule 24, M.R.Civ.P., or they could have required the Montana Department of Agriculture to intervene by a writ of mandate inasmuch as the language of section 3-229, R.C.M.1947 is mandatory, or they could have moved for consolidation at any time prior to Paine’s judgment. Furthermore, Agri-Services and General could have joined all claims against them, Eule 20, M.R.Civ.P., and they too could have moved for consolidation. None of these things was attempted. We recognize that the scope of Eule 42, M.R.Civ.P., is sweeping. Wright & Miller, Federal Practice and Procedure, Civil §§ 2382, 2383, 2384. Nevertheless we think this case overreaches the bounds of the permissible use of Eule 42(a), M.R.Civ.P. See Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, D.C., 55 F.R.D. 436; Sehacht v. Javits, D.C., 53 F.R.D. 321; Transeastern Shipping Corp. v. India Supply Mission, D.C., 53 F.R.D. 204; Schimmel v. District Court of Adams County, 155 Colo. 240, 393 P.2d 741.

We therefore hold that the order staying the execution of the Paine and Peavey judgments and the order of consolidation are void as to Paine and Peavey.

The order appealed from is reversed as for the appellants Peavey and Paine.

ME. CHIEF JUSTICE JAMES T. HAEEISON and ME. JUSTICES DALY and CASTLES, concur.

ME. JUSTICE HASWELL did not participate in this cause.  