No. 14890 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

JAMES PHILLIPS, 

Plaintiff and Respondent, 

VS . 

GARNETT LOBERG, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Datsopolous and MacDonald, Missoula, Montana 

For Respondent: 

Clinton J. Fischer, Polson, Montana 

Submitted on briefs: November 14, 1979 

Decided: mR I i 1980 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Garnett Loberg appeals from an order granting 

summary judgment in favor of the plaintiff. Loberg contends 

that res judicata or collateral estoppel should not be applied 

to bar certain of his defenses. We agree. 

Georgia McIntyre, third party defendant, borrowed $9,000 

from the plaintiff, James Phillips, on March 29, 1976, executing 

a promissory note with a maturity date of July 1, 1976. As security for the loan, McIntyre delivered the title of a 1968 Mack 

logging truck to Phillips and advised him that she would repay 

the loan when she sold the truck and an accompanying Peerless logging trailer. Shortly thereafter, Loberg agreed to purchase the 

truck from McIntyre for $5,700. No payment dates were specified, 

instead payments were to be made as Loberg derived income from the 

use of the truck. 

On September 29, 1976, Phillips filed suit, District Court 

Cause No. 9636, against McIntyre on the $9,000 promissory note. 

The same day a writ of attachment was issued by the District Court 

which was served upon Loberg on October 1, 1976, On October 18, 

1976, Loberg paid $4,000 of the $5,700 purchase price to McIntyre. 

A default judgment was taken against McIntyre on December 

15, 1976. The District Court issued a writ of execution on April 

13, 1977, which was served upon Loberg on ~pril 26, 1977. 

In addition to the $4,000 payment on October 18, 1976, 

Loberg made the following payments to McIntyre: $200 on April 19, 

1977; $1,000 on June 3, 1977; and $500 on July 23, 1977. Upon the 

last payment in July, 1977, the total agreed purchase price of $5,700 

had been paid. 

Thereafter on August 10, 1977, Phillips filed a petition 

under District Court Cause No. 9636 seeking to hold Loberg in contempt. The petition alleged that the payments made to McIntyre 
violated the court's writs of attachment and execution. A citation and order to show cause was issued, and it was served upon 

Loberg on August 15, 1977. 

Loberg appeared without counsel on August 24, 1977, in 

a show cause hearing and he appeared with counsel in an additional 

show cause hearing on August 31, 1977. An order finding Loberg 

in contempt was issued on September 28, 1977. The order sentenced 

Loberg to county jail for five days and fined him $500. However, 

the execution of the order was suspended with Loberg given thirty 

days to purge himself of contempt by paying the $5,700 owing on 

the writs of attachment and execution. 

Neither McIntyre nor Loberg made payments in satisfaction 

of the default judgment taken against McIntyre or the contempt 

order issued against Loberg. As a consequence, Phillips filed a 

complaint against Loberg in District Court Cause No. 10300 to 

recover the $5,700 plus costs. Loberg answered and impleaded 

Georgia McIntyre. The answer contained six enumerated defenses 

which attacked the content and validity of the writs, the existence 

of a debt, and the validity of the contempt order. The answer also 

contained a third party complaint against Georgia McIntyre. Phillips' 

motion to strike the enumerated defenses and third party complaint 

was granted. The court stated in its order granting Phillips' 

motion that the issues raised by Loberg in the enumerated defenses 

"Ilave been fully heard and adjudicated upon their merits in the 

civil contempt hearing held in Cause No. 9636 and that the doctrines 

of collateral attack, collateral estoppel and res judicata each 

preclude relitigation of the issues." 

On May 9, 1979, the District Court granted Phillips'motion 

for summary judgment. The court once again found that all issues 

raised by Loberg had either been fully heard and adjudicated or 

Loberg had the opportunity to raise the defenses and issues and 

failed to do so in the prior contempt hearing in Cause No. 9636. 
As a result of the doctrines of collateral attack, collateral 

estoppel, or res judicata, the District Court found that no 

genuine issue of material fact was presented and that the plaintiff was entitled to judgment as a matter of law. 

The issue on appeal is whether the District Court was 

correct in granting plaintiff summary judgment. To determine 

this issue, the question becomes whether the principles of collateral attack, collateral estoppel and res judicata were properly 

applied in striking Loberg's defenses. 

At the outset we must look to the content of the defenses 

to see which doctrine applies. Defendant Loberg asserts in his 

second enumerated defense that "the writ of attachment was void 

ab initio for failure to comply with statutory requirements." In 

the fourth enumerated defense, Loberg states "said conclusion by 

the court [the finding of contempt] was erroneous for the reason 

that the court was not fully informed of the circumstances and 

was not apprised of the due process deficiencies of service or the 

invalidity of the writ of attachment." The sixth enumerated defense stated that "[tlhe writ of attachment and the writ of execution were void as to Defendant because they were not duly recorded, as required by law, in Sanders County." In summarizing 

these defenses, it is quite obvious that Loberg is contending that 

the writs were never valid and that, as a consequence, there was 

no basis for finding him in contempt of a valid court order. 

The following discussion in Western Montana Production 

Credit Association v. Hydroponics, Inc. (1966), 147 Mont. 157, 161, 

410 P.2d 937, 939, distinguishes the doctrines of res judicata 

and collateral estoppel and illustrates the effect of each doctrine. 

"'The term res judicata is often used to denote 

two things in respect to the effect of a valid, 

final judgment: (1) that such judgment, when 

rendered on the merits, is an absolute bar to a 

subsequent action, between the same parties or 

those in privity with them, upon the same claim 

or demand; and (2) that such a judgment constitutes 
an estoppel, between the same parties or those in 

privity with them, as to matters that were necessarily litigated and determined although the claim 

or demand in the subsequent action is different. 

Under the first proposition the judgment operates 

as a bar . . . Under the second proposition the 

judgment prevents the parties from relitigating 

only those matters that were determined.' 1-B 

Moore F.P. 621-622, S0.405. 

"The first proposition is properly called res 

judicata while the second is called collateral 

estoppel." (Emphasis added.) 

On the other hand, collateral attack is the doctrine applied in "every proceeding in which the integrity of a judgment 

is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain 

decrees declaring judgments to be void ab initio." Daly Bank v. 

State (1957), 132 Mont. 387, 395, 318 P.2d 230, 236; State ex rel. 

Delmoe v. Dist. Court (1935), 100 Mont. 131,136, 46 P.2d 39, 42; 

Burke v. Inter-State Savings & Loan Assn. (1901), 25 Mont. 315, 

Thus, the doctrines of collateral estoppel and res judicata 

apply to the effect of a valid final judgment and collateral attack 

is the doctrine applied when the validity of a judgment is challenged. 

In our present appeal Loberg is attacking the validity of the contempt order; therefore, collateral attack is the appropriate doctrine. 

In a case involving a contempt citation and a collateral 

attack upon the underlying court order, this Court stated: 

"There is no doubt that a party cannot be guilty 

of contempt of court for disobeying an order 

which the court had no authority to make. (Cites 

omitted.) But it is well settled that judgments 

of courts which are of general jurisdiction and 

whose prima facie authority therefore extends to 

questions of the kind purported to have been adjudicated, are entitled to every presumption of 

validity, and that they are not open to collateral 

attack unless shown void upon inspection of the 

judgment roll, and that in the absence of the 

judgment roll the court cannot try the question." 

(Cited omitted.)State ex rel. Enochs v. Dist. 

Court (1942), 113 Mont. 227, 233, 123 ).2d 971, 

974. 

As a result we must look to the record as well as the statutory 
requirements for valid writs of attachment and execution. 

Turning first to the statutes providing the requirements 

for attachment and execution, the "Manner of Attaching Property" 

is provided in section 27-18-401, MCA, et seq. Section 27-18- 

405, MCA, provides, in pertinent part: 

"(1) Debts or credits and personal property not 

capable of manual delivery and personal property 

in the possession of a third person must be 

attached by leaving with the person owing such 

debt or having in his possession or under his 

control such credits and personal property or with 

his agent a copy of the writ and a notice that 

the debts owing by him to the defendant or the 

credits and other personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of-such writ. 

"(2) Upon receiving information in writing from 

the plaintiff or his attorney that any person has 

in his possession or under his control any credits 

or other personal property belonging to the defendant or is owing any debt to the defendant, the - 

sheriff must serve upon such person a copy of the 

writ and a notice that such credits or other property 

or debts, as the case may be, are attached in pursuance ot said writ.ll (Emphasis added.) 

Section 27-18-307, MCA, provides that a lien shall accrue only 

upon attachment, 

"All liens by attachment shall accrue at the time 

the property of the defendant shall be attached 

by the officer charged with the execution of the 

writ, in the order in which the writs are levied 

and said lien shall not be affected by any subsequent 

attachment or by any judgment obtained subsequent 

thereto. " 

Further, section 25-13-501, MCA, provides that the same procedures 

are required to attach a debt when a writ of execution is involved. 

This section provides: 

" . . . Shares and interest in any corporation or 

company, debts and credits, and all other property, 

both real and personal, or any interest in either 

real or personal property, and all other property 

not capable of manual delivery may be attached on 

execution, in like manner as upon writs of attachment.. . ." (Emphasis added.) 

The preceding statutes establish that service of a writ 

of attachment or execution is not alone sufficient to create a 
lien when a debt owed by a third person is the subject of the 

attachment; also required in service of a notice that the debt 

owing is attached in pursuance of the writ. If the writ and 

notice are not served, the debt is not properly attached and 

no lien is created. It necessarily follows that if the property is not properly attached, the writ of attachment is a nullity. 

As previously stated, a party cannot be held in contempt 

for violating an invalid court order, and in order for a collateral 

attack of a contempt citation to be allowed it must appear from 

the record that the underlying order (the writs of attachment and 

execution in this appeal) is void. State ex rel. Enoch v. Dist. 

Court, supra. 

The record in our present appeal discloses that only the 

writ of attachment and the writ of execution were served upon 

Garnett Loberg. He never received a notice that the debt owing 

to Georgia McIntyre was attached in pursuance of the writ. As a 

result of section 27-18-405, MCA, section 27-18-307, MCA, and 

section 25-13-501, MCA, there was never a proper attachment and 

no lien was ever created. Since there was never a proper attachment the writs themselves were a nullity and could not provide 

a basis for a contempt citation. 

Once it is shown that a collateral attack is proper 

and the underlying judgment is void, it will not have any preclusive effect and the case must be tried on the merits. Here it 

was error for the District Court to conclude its order granting 

plaintiff's motion to strike enumerated defenses by stating that 

"the doctrines of collateral attack, collateral estoppel and res 

judicata each preclude relitigation of the issues." 

The District Court, in granting summary judgment concluded 

as follows: 

"2. That a cause of action exists against Defendant GARNETT LOBERG by Plaintiff JAMES PHILLIPS and 
that the cause of action is supported by statutory law, to-wit, Section 93-4313, R.C.M. 1947, 

MCA Section 27-18-407 1979; 

"3. That as a matter of law no genuine issue as 

to any material fact remains to be tried and that 

Plaintiff is entitled to judgment as a matter of 

law. " 

The statutory basis for the District Court's judgment, 

section 27-18-407, MCA, provides: 

"All persons having in their possession or under 

their control any credits or other personal 

property belonging to the defendant or owing any 

debts to the defendant at the time of service upon 

them of a copy of the writ and notice shall be, 

unless such property be delivered up or transferred or such debts be paid to the-sheriff, liable 

to the plaintiff for the-amount of such credits, 

property, or debts until the attachment be discharged 

or any judgment recovered by him be satisfied." 

(Emphasis added. ) 

As previously stated, there was never a valid attachment 

since a notice of attachment was never served upon the defendant. 

Hence, the foregoing statute does not provide a basis for the 

defendant's liability, and summary judgment was improper. 

We therefore hold the invalidity of the underlying writs 

of attachment and execution are the proper subject of a collateral 

attack. The record discloses that the writs were of no effect 

because of plaintiff's failure to comply with section 27-18-405, 

MCA, and section 25-13-501, MCA. As a result the District Court 

was in error in finding Garnett Loberg in contempt, and the contempt order has no preclusive effect on the litigation of the 

present case. 

The judgment of the District Court is reversed and the 

cause remanded to the District Court for further proceedings 

consistent with this opinion. 

- ................................. Chief Justice 
We concur: