No. 12917 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

LESTER J. HELLER and VIRGINIA ANN HELLER, 

his wife, 

Plaintiffs and Respondents, 

ARTHUR S. OSBURNSEN and LUCILLE F. 

OSBURNSEN, his wife, 

Defendants and Appellants. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record : 

For Appellants : 

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 : ,' <3' 3 8 1975 

Filed : , 2 ... 'dl5 - < <-+ 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This case has been previously before this Court; Heller 

v. Osburnsen, 162 Mont. 182, 510 P.2d 13; as a declaratory 

judgment action in which the district court was asked to interpret the rights and obligations of the parties to a contractfor-deed and escrow agreement arising from the sale of a ranch 

by the Hellers to the Osburnsens. Because the facts of 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 $70,000 was 

taken on the property with both the Hellers and the Osburnsens 

signing the loan contract as joint makers of the loan. Thirty-five 

thousand dollars of the loan was used by the Hellers to repay the 

then outstanding mortgage and the remaining $35,000 was used by 

the Osburnsens as the downpayment to the Hellers. 

When the Osburnsens made their payments to the escrow 

agent, the First National 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 Bellers dispute the manner 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 the purchase price 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 remains due and owing 

to Plaintiffs herein 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 19th day of 

February, 1968, and that Defendants will be entitled to credit against these sums in the manner 
hereinafter set out; 

"2. That Defendants are entitled to credit on 

the unpaid balance due on said contract as set 

out herein for 50% of the sums paid to the John 

Hancock Mutual Life Insurance Company as principal 

or interest and that the remaining 50% of such 

sums paid are the sole obligation of Defendants; 

"3. That in the event the parties cannot agree 

upon the remaining balance due after crediting 

payments made by Defendants as 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 10th day of January of each calendar year and subject to the restriction on 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 as permitted in the judgment. The district court issued its 

order requiring Osburnsens to either answer Hellers' petition or 

admit the truth thereof within 20 days after service upon Osburnsens' counsel. The order also stated if Osburnsens' answer to 

the petition denied the matters set out therein the court would 

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 the motion was dismissed. After a series of hearings, the district court on 

September 11, 1974, entered its findings of fact and conclusions 

of law, with what was termed a judgment. In its findings of fact, 

the court held in part: 

"5. The unpaid balance due on the contract to 

Plaintiffs was $84,850.00. 

"6. The amount which Defendant should have paid 

on the contract balance through December 31, 1973, 

was $21,300.00 as principal and $21,592.91 as 

interest, a total of $42,892.91. The amount 
actually paid by ~efendants during this period 

was $5,203.98 as principal, 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 Defendants on the contract balance through 

December 31, 1973, is the sum of $42,892.91; 

the Plaintiffs' share of principal and interest 

on the John Hancock Company loan for the same 

period was $17,751.04; the amount which should 

have gone to Plaintiffs personally was $25,141.87; 

the amount actually paid to Plaintiffs during the 

same period was $10,555.84. 

"9. The adjustment in the interest due Plaintiffs 

by reason of delay in payments is as follows: * * * 

[Statistics are here set out indicating the principal 

overpaid less the interest underpaid 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 Osburnsens now 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 in matters of substance from an earlier judgment affirmed by this Court? 

2. Would the enforcement of such new judgment violate 

appellants' rights under the due process clause of the United 

States Constitution? 

3. Is the most 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 rights under the due 

process clause of the United States Constitution, arguing that no 

judgment of a court affords due process of law if rendered without jurisdiction. 
We must first determine whether the September 11, 1974, 

accounting was in fact a new judgment or was merely 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 * * *.I' 

The general nature of a judgment, as stated in 49 C.J.S. Judgments, 

52, page 26, is: 

" * * * a judicial declaration by which the issues 

are settled and the rights and liabilities of 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 judgment of 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 decree was 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 there was "interlocutory" and the rules relied on 

by the appellants have no application. 

The 1974 accounting of the district court was 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 accounting merely clarified the 

balance due the Hellers after the Osburnsens' payments were properly credited. 

The arguments presented 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 in 
this matter, as we 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