(concurring).
PREFACE
This is a constructive trust lawsuit wherein Appellants seek to impose this type of trust against a widow’s homestead for the debts of her deceased husband. Her husband’s debts were discharged in United States Bankruptcy Court.
I.
1. Appellant’s alleged cause of action is based upon a claimed indebtedness of Ap-pellee’s deceased husband.
2. Appellee’s deceased husband obtained a discharge in bankruptcy.
3. Conclusion: Appellants cause of action is barred.
II.
1.An identical lawsuit to the lawsuit now on appeal was started by Appellants in the Bankruptcy Court which was dismissed on its merits.
2. No appeal was taken from the Bankruptcy Court’s Order dismissing Appellants’ action.
3. Conclusion: Appellants present lawsuit is barred by the doctrine of res judica-ta. It is obvious that res judicata serves a purpose to prevent relitigation of an issue which has already been precisely litigated.
III.
1. Appellants sought a constructive trust and to revoke the discharge granted to the bankrupt through this present state court proceeding.
2. However, the requested constructive trust is barred by res judicata as it was the subject of the very same claim, the latter dismissed on its merits on August 11, 1986, in the Bankruptcy Court.
3. Additionally, Appellants failed to object to the discharge in the bankruptcy proceeding. This was a classic case of a party sleeping on their rights. Res judica-ta again applies.
IV.
1. Appellants failed to act under 11 U.S.C. § 727(c)(2) in that they failed to call the constructive trust theory to the attention of the bankruptcy trustee.
2. Thus, they are estopped from maintaining an action and their appeal is incep-tually flawed.
3. Additionally, the trustee was the proper party to bring an action for a constructive trust, not Appellants. 11 U.S.C. § 541.
4. Lastly, under 11 U.S.C. § 727(e) a creditor or a bankruptcy trustee must request a revocation of a discharge within one year from the date that the discharge was granted. Here, the Bankruptcy Court had a deadline of November 16, 1983, and no objections were filed whatsoever to the bankrupt’s discharge until November 30, 1983.
Beyond peradventure, res judicata applies under these facts. Each set of facts must be examined closely to determine if the doctrine should be applied. Summary *293judgment is appropriate to dispose of legal, not factual questions.
I join the Chief Justice’s writing believing that it is solid in law with ample authorities cited. I am not interested in shaking up recent stare decisis. Black Hills Jewelry has been cited 15 times with approval, including 12 times in this Court, once in the Eighth Circuit Court of Appeals, once in the United States District Court for South Dakota, Central Division, and once in the Supreme Court of Montana.
Lastly, “excessive use of res judicata” should, indeed, be guarded against. I am reminded by an overemphasis of the obvious by my mother, who told me on sundry occasions, with all good intentions, “son, don’t miss your plane!” Squarely do the facts fit within the dóctrine of res judicata and I do not believe that the Chief Justice missed the plane.