NO. 91-136 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

MILTON E. JONES and HELEN C. JONES, 

Defendants and Appellants, 

V. 

FIRST SECURITY BANK OF BOZEMAN, 

Plaintiff and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gerald B. Murphy and Thomas E. Smith, Moulton, 

Bellingham, Longo & Mather, P.C., Billings, Montana 

For Respondent: 

Calvin L. Braaksma, Landoe, Brown, Planalp f E, Kommers, P.C., Bozeman, Montana 

Filed: 

Submitted on Briefs: June 6, 1991 

Decided: July 2, 1991 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Milton and Helen Jones appeal from the order of the District 

Court for the Eleventh Judicial District in Flathead County, 

granting First Security Bank of Bozeman summary judgment in a 

foreclosure action. We affirm the District Court. 

The issue raised by the defendants is whether the doctrines 

of merger or res judicata, or public policy prevent the Bank from 

obtaining a judgment in Flathead County after already obtaining a 

judgment in Gallatin County on the same promissory note. 

This case has been before this Court previously. In First 

Security Bank of Bozeman v. Jones, 243 Mont. 301, 794 P.2d 679 

(1990), (Jones I), we considered essentially the same facts. We 

will briefly summarize the proceedings in Jones I. 

The defendants executed a promissory note to the Bank and 

pledged five parcels of property as security. Four of the parcels 

were located in Gallatin County and one was located in Flathead 

County. The defendants defaulted on the promissory note, and the 

Bank instituted this foreclosure action. The Bank filed two 

complaints--one in Flathead County and one in Gallatin County. 

Each complaint made reference to the other, and it was made clear 

that the Bank sought a single integrated foreclosure proceeding and 

a single judgment. 

The defendants raised as affirmative defenses Montana's 

one-action rule, waiver, and estoppel. The District Court of 

Gallatin County granted the Bank's motion for summary judgment, and 

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the defendants appealed. On appeal, this Court determined that the 

granting of summary judgment was proper. We found that the Bank 

did not violate the purpose of 5 71-1-222, MCA, (the one-action 

rule) by filing simultaneous foreclosure proceedings in both 

Gallatin and Flathead Counties, and stated that the Bank was 

attempting to comply with § 25-2-123(1)(d), MCA, which determines 

the proper place of trial for foreclosure actions. 

On November 6, 1990, the Bank renewed its motion for summary 

judgment in Flathead County District Court. The defendants opposed 

the motion, arguing the doctrines of merger and res judicata prohibited 

the bank from acquiring a second judgment on the same promissory 

note. On January 28, 1991, the Flathead County District Court 

granted the Bank summary judgment. The defendants did not seek a 

stay, and both the Flathead and Gallatin properties have since been 

purchased by the Bank. The defendants appeal the summary judgment 

entered in the Flathead County District Court. 

The defendants state that the doctrine of merger prohibits the 

Bank from acquiring a judgment in Flathead County on the same 

promissory note that was the basis for a judgment in Gallatin 

County. They contend that the note was merged into the judgment 

in Gallatin County, and is thereby extinguished. They cite Lepper 

v. Jackson, 102 Mont. 259, 57 P.2d 768 (1936), in which this Court 

stated: 

When the statute is followed and the court has secured 

jurisdiction over the person of the debtor, or debtors, 

and the property, the debt is merged in the judgment and 

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decree rendered, and though the property may not bring 

[a sum] sufficient to satisfy the judgment, no further 

action can be brought on the debt evidenced by the note. 

The defendants contend that the merger doctrine is recognized 

by many of Montana's judicial districts, which have adopted rules 

or policies requiring the creditor to surrender the original 

promissory note at the time judgment is entered. They argue that 

a final judgment was rendered upon the promissory note by the 

Gallatin County District Court, and that the subsequent Flathead 

County District Court judgment, relying on the same note, violates 

the merger doctrine. 

The purpose of the merger doctrine is to compel the creditor 

who has taken security for his debt to exhaust the security before 

resorting to the general assets of the debtor. Lepuer, 102 Mont. 

at 268. That is what the Bank attempted to do in this case. The 

Bank strove to pursue its security in both Gallatin and Flathead 

Counties at the same time. By integrating the proceedings in the 

two counties, the Bank sought to exhaust its security in one 

action, thereby avoiding multiple actions. As the Court noted in 

Jones I, the Gallatin and Flathead actions are not sequential 

actions, but are, in essence, one action to seek a single recovery 

by means of a single, integrated, coordinated foreclosure. The 

Bank did not violate the merger doctrine, but in fact followed its 

strictures by exhausting all security in one coordinated, 

integrated effort. 

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The defendants next contend that the doctrine of res judicata 

precludes the Bank from obtaining a second judgment on the same 

promissory note. 

This Court stated in Brault v. Smith, 209 Mont. 21, 25, 679 

P.2d 236, 238 (1984) *I[t]he basic proposition embraced by the 

doctrine of res judicata has always remained the same: a party 

should not be able to relitigate a matter he or she has already had 

an opportunity to litigate." However, as noted by the District 

Court and this Court in Jones I, the Bank is not relitigating the 

issue or seeking an additional judgment, but a judgment on the same 

obligation by means of an integrated proceeding. 

The District Court found, and we agree, that: 

This Judgment is not in addition to the Judgment in Cause 

No. 89-298, Montana Eighteenth Judicial District Court, 

Gallatin County, but represents Judgment on the same 

obligation as described therein, it being of record in 

Flathead County to allow foreclosure of Flathead County 

real property . . . . 

We conclude there is no merit to the defendants' claim that 

the doctrine of res judicata is a bar to a judgment in the Flathead 

County District Court. 

Finally, the defendants contend that a multiple judgment on 

a single promissory note would be contrary to public policy. 

However, we have already determined in Jones I that the foreclosure 

proceedings in the two counties constituted an integrated action 

and a single deficiency judgment thereafter. The Bank did not 

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attempt to circumvent the one-action rule, and therefore, did not 

violate public policy. 

We conclude that this case is a proper one for summary 

judgment, there being no genuine dispute over material fact. We 

affirm the judgment of the District Court. 

We Concur: ,/ / 

" 

Chief Justice 

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July 2, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gerald B. Murphy 

MOULTON, BELLINGHAM, LONG0 & MATHER 

P.O. Box 2559 

Billings, MT 59103 

Calvin L. Braaksma 

LANDOE, BROWN, PLANALP & KOMMERS 

P.O. Box One 

Bozeman, MT 59771-0001 

ED SMITH 

EME COURT