No. 81-415
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
DALTON E. WELLMAN and ANNA M. WELLMAN,
Plaintiffs and Appellants,
VS.
E. G. WELLMAN, JOSEPHINE K. WELLMAN and
DONALD KENNETH WORLEY and SHARON CONNER
WORLEY,
Defendants and Respondents.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead
Honorable Robert Sykes, Judge presiding.
Counsel of Record:
For Appellants:
Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana
For Respondents:
Warden, Christiansen, Johnson and Berg, Kalispell,
Montana
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Submitted on briefs: December 30, 1981
Decided: April 15, 1982
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiffs appeal from an order of the District Court
of the Eleventh Judicial District, Flathead County, granting
defendants' motion to dismiss in this dispute over real
property. Plaintiffs had attempted to attack a 1971 judgment,
claiming that the District Court exceeded its jurisdiction
by granting more relief than was sought in the pleadings.
In 1962, defendant E. G. Wellman and his late wife
Jean, and plaintiffs Dalton and Anna Wellman received certain
real property from Wellman Enterprises, a Montana corporation.
These parties transferred the property to Shamrock, a Montana
corporation, by warranty deed, in 1964. In 1971, E. G.
Wellman brought an action against Dalton and Anna Wellman
and Shamrock seeking: (1) to have the 1964 transfer of the
real property to Shamrock voided for lack of consideration;
(2) to have the District Court award "at least a one-half
(1/2) interest in said property" to E. G. Wellman; and, (3)
an order from the court restraining Dalton and Anna Wellman
and Shamrock from disposing of or encumbering the property
or the proceeds therefrom. A trial was held without a jury,
defendants were not present, and their default was entered.
In its subsequent judgment, the District Court concluded
that: (1) the 1964 transfer to Shamrock was null and void;
(2) the 1962 transfer was without consideration as far as
Dalton and Anna Wellman were concerned; and, (3) E. G. Wellman
was the sole owner of the property.
Dalton and Anna Wellman moved to set aside the default
and judgment, apparently on the grounds of mistake, inadvertence,
or excusable neglect, pursuant to Rule 60(b)(l), Mont.R.Civ.P.
After a hearing in November 1971, the District Court denied
the motion, concluding that Dalton and Anna Wellman had
shown "no mistake, inadvertence, or excusable neglect," or
other reason for their default, and that granting the motion
would unduly protract litigation and create a hardship for
E G. Wellman and those persons with intervening rights, who
.
had relied on the judgment. The District Court found the
evidence in support of the motion "completely insufficient"
to move the court's discretion and justify setting aside the
default and judgment of September 24, 1971. In 1972 the
property was sold to Donald and Sharon Worley.
No further action was taken until February 27, 1981,
when Dalton and Anna Wellman filed a complaint requesting
that an undivided one-half interest in and to the real
property be quieted in their name, or that the court require
defendants E. G. Wellman and Josephine Wellman to account
for all proceeds from the sale of the property and award
plaintiffs one-half of a11 the proceeds, together with ten
percent annual interest thereon. The basis for the complaint
is plaintiffs' claim that the September 24, 1971 judgment
naming E. G. Wellman sole owner and declaring the 1962 deed
null and void as to the plaintiffs herein, is itself void
because it grants relief beyond the scope of the pleadings.
Plaintiffs argue that the District Court lacked jurisdiction
to enter the order granting such relief because the 1971
complaint did not specifically pray for an order declaring
void the 1962 deed and naming E. G. Wellman the sole owner
of the property.
On June 23, 1981, the District Court granted defendants'
motion to dismiss, stating in its order that jurisdiction of
the parties in the 1971 dispute was proper and that the
present lawsuit is an attempt to attack the 1971 judgment by
collateral issues which were finally determined over ten
years ago.
The issue on appeal is whether the District Court erred
in dismissing plaintiffs' complaint. We affirm the dismissal
but on different grounds than those utilized by the District
Court.
There exists no Montana case with facts specifically
resembling those presented in this appeal. There are,
however, two Maine cases which state the law and the policy
grounds upon which our decision is based.
In Royal Coachman Color Guard v. Marine Trading (Me.
1979), 398 A.2d 382, the plaintiff filed a complaint alleging
that the defendants had unlawfully seized a diesel engine.
The defendants failed to answer the complaint and a default
was entered against them for the amount of damages alleged
by the plaintiff. The defendants thereafter filed a motion
to set aside the judgment on the grounds of "mistake, in-
advertence, surprise, or excusable neglect," pursuant to
Rule 60(b)(l), Maine Rules of Civil Procedure. The motion
was denied and an appeal from the denial was dismissed for
failure to file the record on appeal within the proper time
period. While their first appeal was still pending, defendants
instituted a second attack on the default judgment, by
filing a motion with a lower court which, this time utilizing
Rule 60(b)(4), M.R.Civ.P., asserted that the default judgment
was "void." The alleged "voidness" of the judgment was
based upon the grounds that: (1) the clerk of the lower
court acted in violation of Rule 55(b)(l), M.R.Civ.P.; and,
(2) the lower court lacked jurisdiction to entertain the
action because an unincorporated association may not, as such,
bring a suit in the courts of Maine. The motion was denied
and a se'cond appeal was filed. Calling the attacks "collateral,"
the high court of Maine affirmed the denial, holding that
the second attack was barred by res judicata. 398 A.2d at
383. In explanation, the Court stated:
"This Court decided in Willette v. Umhoeffer
[(Me. 1970), 268 A.2d 6171 that res judicata precluded
consideration of Rule 60(b) issues raised by an
appellant in a second collateral attack upon a default
judgment where the appellant was able to raise the
issues in a first collateral attack but failed to do
so. Here, when their first Rule 60(h) motion was
brought and while it was pending, defendants could
have brought to the attention of the [lower court]
the 'voidness' issues now being asserted, but they
did not do so. What we said in Willette v.
Umhoeffer, is therefore controlling. Defendants will
not be permitted to 'reserve a portion of ..
.[their]
alleged grounds in order to lay the basis for successive
motions seeking the same relief.' 268 A.2d at 619."
The Court later stated:
"The decision [in Willette] made plain that all
legal issues must be finally resolved at some point.
Once there has been full opportunity to present
an issue for judicial decision in a given proceeding,
including those issues that pertain to a court's
jurisdiction, the determination of the court in that
proceeding must be accorded finality as to all issues
raised or which fairly could have been raised, else
judgments might be attacked piecemeal and without
end." 398 A.2d at 384.
We adopt the reasoning of the Maine court and note
that it is especially pertinent in the present case. Plaintiffs
had a full opportunity to litigate the voidness issue in
1971 when they first moved to set aside the default judgment.
They failed to do so. The doctrine of xes judicata is
founded upon the generally recognized public policy that
there must be some end to litigation. The end for the
plaintiffs in this case occurred more than ten years ago
when they failed to raise the issue of jurisdiction and the
District Court denied their first motion to set aside the
default judgment. Affirmed.
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, 14,,AfL-L,.b
Justice
We Concur:
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