No. 12917 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

LESTER J. HELLER and VIRGINIAANN HELLER, hiswife, Plaintiffsand Respondents,

ARTHUR S. OSBURNSEN and LUCILLE F. OSBURNSEN, hiswife,Defendants and Appellants.

Appeal from: District Court of theTenth JudicialDistrict, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: ForAppellants: Johnson and Foster, Lewistown, Montana Robert 

### L. Johnson argued, Lcwistown, Montana For Respondents: Dockery and Parrish, Lewistown, Montana Bradley B. Parrish argued, Lewistown, Montana

Submitted: May 9, 1975 Decided

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## 'dl5 - <<-+Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This case has been previously before this Court;Heller



### v. Osburnsen, 162Mont. 182, 510 P.2d 13; as a declaratory judgment action inwhich the district court was asked to interpret the rights and obligations of the parties to a contractfor-deed and escrow agreementarising from the sale of a ranch by the Hellers to the Osburnsens. Because the factsof the case

are set out in the previous Heller decision,we do not find it necessary to again set out in detail the fact situation. The Hellers sold the ranch to the Osburnsens for $120,000. A loan from the John Hancock Insurance Company of $70,000was taken on the property with both the Hellers and the Osburnsens signing the loan contractas jointmakers of the loan. Thirty-five thousand dollars of the loanwas used by the Hellers to repay the then outstandingmortgage and the remaining $35,000was used by the Osburnsens as the downpayment to the Hellers. When the Osburnsensmade their payments to the escrow agent, the FirstNational Bank of Lewistown, the full yearly obligation to John Hancock was paid first,with the remainder paid to the Hellers, less any escrow fee. The Bellersdispute themanner in which the escrow agent distributed the Osburnsens' payments and filed a declaratory judgment action in the district court. On June 9, 1972, the district court issued its amended judgment which held, inter alia: "1. That Defendants [Osburnsens]are entitled to credit in the sum of $70,140.34 on thepurchaseprice of the real property herein involved; that said purchase price was in the total sum of $120,000.00 plus interest on the unpaid balance at the rate of 5 1/2% per annum as set out in said contract; that there remainsdue and owing to Plaintiffsherein the principal sum of $49,859.66 plus interest on the principal sum of $84,850.00 from the 24th day of November, 1967, to the 19th day of February, 1968,and interest on the sum of $49,859.66 from the 19thday of February, 1968,and that Defendantswill be entitled to credit against these sums in the mannerhereinafter set out; "2. That Defendantsare entitled to credit on the unpaid balance due on said contract as set out herein for 50% of the sumspaid to the John Hancock Mutual Life InsuranceCompany as principal or interest and that the remaining 50% of such sumspaid are the sole obligation of Defendants; "3. That in the event the parties cannot agree upon the remaining balance due after crediting paymentsmade by Defendantsas shown by the evidence that either party may petition this Court for a Supplemental Decree and Accounting;

"5. That the payments due by Defendants to Plaintiffs are each in the amount of $4,260.00 together with accrued interest thereon at the rate of 5 1/2% per annum on the unpaid balance as the same from time to time appears, which said payments are due on or before the 10thday of January of each calendar year and subject to the restrictionon prepayments set out in said contract." Osburnsens appealed from this judgment. This Court affirmed the district court's judgment. Hellers then petitioned the district court for an accounting aspermitted in the judgment. The district court issued its order requiring Osburnsens to either answer Hellers' petition or admit the truth thereofwithin 20 days after service upon Osburnsens' counsel. The order also stated if Osburnsens' answer to the petition denied thematters set out therein the courtwould thereafter set a day for hearing the petition and answer. Osburnsens filed a motion to dismiss with briefs filed by each party and a hearing held on the motion,whereupon themotion was dismissed. After a series of hearings, the district court on September 11, 1974,entered its findings of factand conclusions of law, with what was termed a judgment. In its findingsof fact, the courtheld in part: "5. The unpaid balance due on the contract to Plaintiffswas $84,850.00. "6. The amount which Defendant should have paid on the contractbalance through December 31, 1973, was $21,300.00 asprincipal and $21,592.91 as interest, a total of $42,892.91. The amountactuallypaid by ~efendants during this period was $5,203.98 asprincipal, and $23,102.90 as interest, a total of $28,306.88. This leaves a shortage in the payments due Plaintiffs of $14,586.03 before adjustment for interest by reason of the delay in payment.

"8. The amount which should have been paid by the Defendantson the contractbalance through December 31, 1973, is the sum of $42,892.91; the Plaintiffs' share ofprincipal and interest on the John Hancock Company loan for the same period was $17,751.04; the amount which should have gone to Plaintiffspersonally was $25,141.87; the amount actually paid to Plaintiffs during the sameperiod was $10,555.84. "9. The adjustment in the interestdue Plaintiffs by reason of delay in payments is as follows:

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[Statisticsare here setout indicating the principal overpaid less the interestunderpaid leaving a total due of $16,831.421 Thus, the sum of $16,831.42 is due and payable from Defendants to Plaintiff through December 31, 1973, together with interest on the sum of $14,586.03 at the rate of 5 1/2% from January, 1974,until paid." The Osburnsensnow appeal. The Osburnsens present three issues for this Court's review: 1. Did the district court have jurisdiction to enter a

new judgment in these proceedings different inmatters of substance from an earlier judgment affirmed by this Court? 2. Would the enforcementof such new judgment violate appellants' rights under the dueprocess clause of the United States Constitution? 3. Is themost recent judgment supported by the record? Osburnsens contend the changes made by the district court are beyond the jurisdiction of that court. The Osburnsens further contend the enforcement of the district court's September 11, 1974,accounting would violate their rightsunder the due process clause of the United States Constitution, arguing that no judgmentof a court affords due process of law if rendered without jurisdiction.We must first determinewhether the September 11, 1974, accounting was in fact a new judgment or wasmerely a clarification of the June 9, 1972, judgment. Rule 54(a),M.R.Civ.P., defines a "judgment"as follows: "A judgment is the final determination of the rights of the parties in an action or proceeding 

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## * *.I' The general nature of a judgment,as stated in 49 C.J.S. Judgments, 52,page 26, is: 

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## * * a judicial declarationby which the issues are settled and the rights and liabilitiesof the parties are fixed as to the matters submitted for decision. 

## * * *" No party to this appeal questions that the rights of the parties were not finally determined and the issues settled by the judgmentof June 9, 1972. The total purchase price, the sole obligation of Osburnsens to pay 50% of the John Hancock loan, and the credits due the parties were determined in that judgment. A petition for an accounting and supplemental decreewas permitted in the 1972 judgment, if the parties could not agree on the remaining balance due after the Osburnsens' payments were credited. Thus the judgment therewas "interlocutory" and the rules relied on by the appellants have no application. The 1974 accounting of the district courtwas issued pursuant to the provisions of the 1972 "interlocutory" judgment permitting either party to the suit to petition the district court for an accounting and supplemental decree. No rights determined in the 1972 judgment were changed, nor were any of the formerly settled issues changed. The 1974 accountingmerely clarified the balance due the Hellers after the Osburnsens' payments were properly credited. The argumentspresented by Osburnsens regarding the district court's lack of jurisdiction to enter a new judgment,and the violation of due process in so doing, are of no relevance inthismatter, aswe have held the 1974 accounting was not a "new" j

udgment

# . Upon examining the record, we find the 1974 accounting

was supported by the record. The accounting of the district court is affirmed. I-, J

Chief Justice We concur:

Justices