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 

For Respondent: 

Dockery and Parrish, Lewistown, Montana 

Bradley B. Parrish argued, Lewistown, Montana 

Submitted: March 3, 1976 

Decided : &"C! 12 lQJF 
PER CURIAM: 

This is a motion to dismiss appellants' appeal from 

the denial of a motion to quash a writ of 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 facts of the 

case were set out in the previous Heller decisions, it is not 

necessary to again set out in detail the fact situation. Since 

the last appeal Mrs. Heller has died, thus Mr. Heller remains 

the sole plaintiff. 

This involved action arises out of the sale of ranch 

properties by Heller to Osburnsens. The first appeal before 

this Court, decided May 7, 1973, involved a declaratory judgment 

action brought by Heller to adjudicate the respective rights and 

duties as to the 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 district court and found that such accounting did not violate due process, (Heller 11). 

The accounting affirmed in Heller I1 found Osburnsens 

were liable to Heller in the amount of $16,831.42, together with 

interest on the sum of $14,586.03 at the 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 to Heller by the September 

11, 1974 accounting, plus interest of $1,604.46 as directed in the 

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 in Osburnsens' 

attorney drawing up a stipulation, which was signed by both 

attorneys. 

The stipulation provided, in pertinent part, the beginning deferred balance of the purchase contract was $84,850 and 

requested the escrow agent to compute each annual payment to 

date, with interest. The escrow agent was asked to deduct from 

each payment the amount actually paid by Osburnsens. Osburnsens 

would then pay Heller the sum of all shortages, plus interest 

from the actual shortage date. 

The escrow agent, First National Bank of Lewistown, stated 

it could not comply with the stipulation requests. Osburnsens' 

attorney wrote the bank asking for the payments actually made 

by them, according to the bank's records, and the payment schedule 

according to the bank's records. Osburnsens' attorney asked for 

the bank records for the payments as actually applied, not as 

they should have been applied pursuant to the district court 

judgment and accounting, both of which were affirmed by this Court. 

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 as full 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 this Court. A sixty day notice and demand pursuant to the default clause of the ranch purchase contract was 

included in that letter. 
On December 29, 1975, the clerk of the district court 

issued an execution directed to the county sheriff, asking the 

sheriff to levy on Osburnsens' property in the amount of 

$23,610.25, plus costs. 

Osburnsens' attorney filed a motion to quash the execution 

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

clerk of court and the sheriff warning that if the writ were 

found to be wrongfully issued, Osburnsens would hold each responsible for any resulting damages. 

On December 31, 1975, Heller's attorney filed an answer 

to the motion to quash. 

On January 12, 1976, the sheriff executed on Osburnsens' 

bank account in the amount of $23,610.25. 

On January 16, 1976, after a hearing on the motion to 

quash, the district court denied the motion to quash on the grounds 

the stipulation was ambiguous and the bank officer apparently 

refused to try to carry it out. 

Osburnsens appealed this order on January 19, 1976. 

Appellants filed a motion to stay execution on January 

21, 1976, A hearing was held on this motion resulting in a stay 

order and providing the money in the sheriff's hands be deemed 

a sufficient undertaking for supersedeas and costs on appeal. 

Respondent raised two issues on his motion to dismiss for 

consideration by this Court. 

I. Are the issues raised in appellants' 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 to Rule 32, 

M.R.App.Civ.P.? 

This Court determined, in the two prior decisions in 

this matter, that appellants owe respondent $16,831.42, plus 
interest. Approximately $5,000.00 is due respondent as underpayments on the ranch purchase contract subsequent to the 

September 11, 1974 accounting, affirmed by this Court in Heller 11. 

No stipulation or agreement signed by the respective attorneys 

can change this determination, it exists until modified, amended, 

or overruled by this Court. 

The award to respondent is res judicata. The general 

rules for res judicata are set out in 46 Am Jur 2d, Judgments, 

"A final judgment on the merits, rendered by a 

court of competent jurisdiction, is conclusive 

as to the rights of the parties and their privies, 

and as to them constitutes an absolute bar to a 

subsequent action involving the same claim, 

demand, and cause of action * * *. The judgment 

puts an end to the cause of action which cause 

cannot aqain be brouqht into litiqation between 

the parties upon any ground or for any purpose 

whatever, -- in the absence of some factor invalidating the judgment." (Emphasis added.) 

The crux of appellants' argument on appeal, is that the 

writ of execution was improperly issued as the amount due respondent from appellants was settled pursuant to the stipulation. While paying lip service to the stipulation, and the actions 

of the district court and this Court, appellants' attorney contends 

this matter has been settled for $152.00, thereby wholly ignoring 

this Court's affirmance of the district court 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 in the September 

11, 1974 accounting, affirmed by this Court, Heller 11. 

Any stipulation which is interpreted as settling a valid 

judgment in excess of $16,000 for the sum of $152 is void as 

being absurd. The stipulation is obviously ambiguous or such 
an absurdity could not result thereby. The district court 

properly found it so. 

Appellants also raise 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 to appellants, due to the hearing which was afforded 

them. 

We need not go into the propriety of the writ of execution except to say a writ of execution is a proper means of 

enforcing a money judgment. Section 93-5805, R.C.M. 1947; 

Nepstad v. East Chicago Oil Assn., Inc., 96 Mont. 183, 29 P.2d 

Appellants question the $5,000.00 excess in the execution. 

The district court did not speak to this issue in its denial of 

the motion to quash. An excessive judgment is not per se void, 

it is merely voidable unless fraudulent intent is proven. The 

proper practice to remedy this matter is a motion to set aside 

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 to quash a writ of execution as a vehicle 

to once again raise a question as to the propriety of this Court's 

determinations in Heller I and Heller 11. 

In Libin v. Huffine, 124 Mont. 361, 363, 224 P.2d 144, 

this Court stated: 

"Where as here 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 to be taken from 

the decision of the appellate court itself." 

See also, Gray v. Bohart, 131 Mont. 522, 312 P.2d 529. 

In the instant appeal, appellants' attorney is indirectly 
appealing the two earlier decisions in an apparent attempt to 

delay payment of the awarded sums to respondent. Such an appeal 

is frivolous and without merit. 

This is a proper case to grant a motion to dismiss 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 presentation of the appeal, that the same was taken 

without substantial or reasonable grounds, but 

apparently for purposes of delay only, such damages may be assessed on determination thereof 

as under the circumstances are deemed proper." 

In Weinheimer v. Scott, 143 Mont. 243, 388 P.2d 790, 

a case involving appellants' attorney in the 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 State Bank of Conrad v. Iverson and Bouma, 

162 Mont. 130, 133, 509 P.2d 839, this Court assessed damages of 

$1,000 as a "restraint on the activities of 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, district judge, sat in place 

of Mr. Chief Justice James T. Harrison.