### No. 13250 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1976

LESTER J. 

### HELLER, Plaintiff and Respondent,

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

Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy I,. 

### McKinnon, Judge presiding. Counsel of Record: For Appellants: 

### Johnson and Foster, Lewistown, Montana Robert Johnson argued, Lewistown, Montana ForRespondent: Dockery and Parrish, Lewistown, Montana Bradley B. 

### Parrish argued, Lewistown, Montana

Submitted: March 

### 3, 1976 Decided

### : &"C! 

## 12lQJFPER CURIAM: This is a motion todismiss appellants' appeal from the denial of a motion toquash a 

### writof execution, issued by the district court, Fergus County. This case has been before this Court on two previous occasions: Heller v. Osburnsen, 162 Mont. 182, 510 P.2d 13 (Heller I);and Heller v. Osburnsen, Mont

# . , 541 P.2d 1032, 32 St.Rep. 1066 (Heller 11). Because the factsof the



### case 

### were 

### set out intheprevious Heller decisions, it is not necessary toagain 

### set out indetail the fact situation. Since the 

### last appeal Mrs. Heller has died, thus Mr. Heller remains the soleplaintiff. This involved action arisesout of the 

### sale of ranch properties by Heller toOsburnsens. The firstappeal before this Court, decided May 7, 1973, involved a declaratory judgment action brought by Heller toadjudicate the respective rights and duties astothe ranch sale transaction. The district court judgment 

### was affirmed in

### Heller I. In the second appeal, decided October 30, 1975, this Court affirmed the supplemental accounting approved by the districtcourt and found that such accounting did not violate due process, (Heller 11). The accounting affirmed inHeller I1 found Osburnsens



### were liable toHeller in the amount of $16,831.42, together with interest on the sum of $14,586.03 atthe 

### rate of 

### 5 1/2%per annum from January 1, 1974, until paid. In November 1975, Heller's attorney sent a 

### letter to Osburnsens' attorney demanding the payment of $23,608.42. This amount included the $16,831.42 awarded toHellerby the September 11, 1974 accounting, plus interest of $1,604.46 asdirected inthe accounting, plus underpayments on the ranch purchase contract for 1974-1975 totaling $5,174.37.In response to this 

### letter the attorneys for the respective parties had a discussion resulting inOsburnsens' attorney drawing up a stipulation, which was signed by both attorneys. The stipulation provided, inpertinent part, the beginning deferred balance of the purchase contract 

### was $84,850 and requested the escrow agent tocompute each annual payment to date, with interest. The escrow agent 

### was asked todeduct from each payment the amount actuallypaid by Osburnsens. Osburnsens would then pay Heller the sum of all shortages, plus interest from the actual shortage date. The escrow agent, FirstNational Bank of Lewistown, stated it could not comply with the stipulation requests. Osburnsens' attorney wrote the bank asking for the payments actuallymade by them, according tothe bank's records, and the payment schedule according to the bank's records. Osburnsens' attorney asked for the bank records for the payments asactually applied, not as they should have been applied pursuant tothe districtcourt judgment and accounting, both of which 

### were affirmed by thisCourt. Osburnsens' attorney interpreted the bank records to reach the conclusion that they owed Heller $152.00, rather than the $23,608.42 demanded by Heller. On November 20, 1975, Osburnsens' attorney offered this amount asfull settlement of the action and debt. On November 21, 1975, Heller's attorney declared the offer of $152.00 an insult and indicated he considered the stipulation void and of no force or effect; claiming Osburnsens' attorney

### was interpreting the bank records 

### as though he had won both appeals to thisCourt. A sixtyday notice and demand pursuant tothe default clause of the ranch purchase contract 

### was included inthat 

### letter.On December 29, 1975, the clerk of the districtcourt issued an execution directed tothe county sheriff, asking the sheriff tolevy on Osburnsens' property inthe amount of $23,610.25, plus costs. Osburnsens' attorney filed a motion toquash the execution

on December 30, 1975. On the same day he sent a 

### letter tothe clerk of court and the sheriff warning that if the 

### writ

### were found tobe wrongfully issued, Osburnsens would hold each 

### responsible for any resulting damages. On December 31, 1975, Heller's attorney filed an answer to themotion toquash. On January 12, 1976, the sheriff executed on Osburnsens' bank account inthe amount of $23,610.25. On January 16, 1976, after a hearing on themotion to quash, the districtcourt denied themotion toquash on the grounds the stipulation was ambiguous and thebank officer apparently refused totryto carry 

### it out. Osburnsens appealed thisorder on January 19, 1976. Appellants filed a motion to stay execution on January 21, 1976, A hearing was held on thismotion resulting ina stay order and providing themoney inthe sheriff's hands be deemed

a sufficient undertaking for supersedeas and costs on appeal. Respondent raised two issues on hismotion todismiss for consideration by this Court. I. Are the issues raised inappellants' appeal 

### res judicata? 2. Was appellants' appeal taken without substantial or reasonable grounds, but for purposes of delay only, whereby damages should be assessed against appellants pursuant toRule 32, M.R.App.Civ.P.? This Court determined, inthe two prior decisions in thismatter, that appellants owe respondent $16,831.42, plusinterest. Approximately $5,000.00 

### isdue respondent asunderpayments on the ranch purchase contract subsequent tothe September 11, 1974 accounting, affirmed by thisCourt inHeller 11. No stipulation or agreement signed by the respective attorneys

can change thisdetermination, 

### it exists until modified, amended,

or overruled by this Court. The award torespondent 

### isres judicata. The general rules for

### res judicata are 

### set out in46 Am Jur 2d, Judgments,

"A finaljudgment on themerits, rendered by 

### a court of competent jurisdiction, 

### isconclusive 

### as tothe rights of theparties and their privies, and astothem constitutes an absolute bar toa subsequent action involving the 

### same claim, demand, and cause of action

## * * *. The judgment puts an end tothe cause of action which cause cannot aqain be brouqht intolitiqationbetween the parties upon any ground or for any purpose whatever,



## -- inthe absence of some factor invalidating the judgment." (Emphasis added.) The crux of appellants' argument on appeal, 

### is that the 

### writof execution was improperly issued 

### as the amount due 

### respondent from appellants was settled pursuant tothe stipulation. While paying lip serviceto the stipulation, and the actions of the districtcourt and this Court, appellants' attorney contends thismatter has been settled for $152.00, thereby wholly ignoring this Court's affirmance of the districtcourt judgment and accounting. A stipulation cannot interfere with the duties, functions,

or decisions of this Court, or any other court. 73 Am Jur 2d, Stipulations, 

### §4 and 

### S11. Regardless of the language of the stipulation, and appellants' attorney's interpretation thereof, appellants owe respondent the amounts determined inthe September 11, 1974 accounting, affirmed by thisCourt, Heller 11. Any stipulation which 

### is interpreted as settling 

### a valid judgment inexcess of $16,000 for the sum of $152 

### isvoid 

### as being absurd. The stipulation 

### is obviously ambiguous or suchan absurdity could not result thereby. The districtcourt properly found 

### it so. Appellants alsoraise a question of violation of due process in their appeal. We find no violation of due process

as statutory requirements were followed, and no prejudice 

### resulted toappellants, due to the hearing which was afforded them. Weneed not go into the propriety of the 

### writof execution except to say a 

### writof execution 

### is a proper means of enforcing a money judgment. Section 93-5805, R.C.M. 1947; Nepstad 

### v. East Chicago OilAssn., Inc., 96 Mont. 183, 29 P.2d

Appellants question the $5,000.00 excess in the execution. The districtcourt did not speak tothis issue in 

### its denial of themotion toquash. An excessive judgment 

### is not per sevoid, it 

### ismerely voidable unless fraudulent intent isproven. The proper practice toremedy this

### matter is 

### a motion to setaside the excess, not move to quash the

### writ. 33 C.J.S. Executions

Appellants' attorney is attempting to use an appeal of the denial of a motion toquash a 

### writof execution 

### as a vehicle to once again raise a question as to the propriety of thisCourt's determinations inHeller I and Heller 11. In Libin v. Huffine, 124 Mont. 361, 363, 224 P.2d 144, this Court stated: "Where ashere an appellate court has unqualifiedly affirmed 

### a judgment of the trial court, it would obviously and unnecessarily protract litigation to allow further or successive appeals from the judgment so affirmed. Such successive appeals 

### in fact would be appeals attempted tobe taken from the decision of the appellate court itself." See also, Gray v. Bohart, 131Mont. 522, 312 P.2d 529. In the instant appeal, appellants' attorney is indirectlyappealing the two earlier decisions in an apparent attempt to delay payment of the awarded sums torespondent. Such an appeal is frivolous and without 

### merit. This is a proper case to grant a motion todismiss the appeal as frivolous and without 

### merit. Rule 32, M.R.App.Civ.P., states: "Damages for appeal without 

### merit. If the supreme court 

### is satisfied from the record and the presentationof the appeal, that the same 

### was taken without substantial or reasonable grounds, but apparently for purposes of delay only, such damagesmay be assessed on determination thereof 

### as under the circumstances 

### are deemed proper." InWeinheimer v. Scott, 143 Mont. 243, 388 P.2d 790,

a case involving appellants' attorney inthe instant 

### case, 

### we quoted Libin v. Huffine, supra, with approval and imposed damages of $500 in favor of respondent. These damages 

### were imposed on appellants' attorney for a frivolous appeal. These damages 

### were the cost of travel, research, and preparation to

answer the frivolous appeal. In Farmers StateBank of Conrad v. Iverson and Bouma, 162Mont. 130, 133, 509 P.2d 839, this Court assessed damages of $1,000 as a "restrainton the activitiesof petitioners and appellants." The motion 

### of respondent to dismiss appellantst appeal 

### is hereby granted. Damages under Rule 32 are assessed in the amount of $1,000.

Honorable W. W. Lessley, districtjudge, sat inplace of Mr. Chief Justice James T. Harrison.