No. 81-415 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

DALTON E. WELLMAN and ANNA M. WELLMAN, 

Plaintiffs and Appellants, 

VS. 

E. G. WELLMAN, JOSEPHINE K. WELLMAN and 

DONALD KENNETH WORLEY and SHARON CONNER 

WORLEY, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana 

For Respondents: 

Warden, Christiansen, Johnson and Berg, Kalispell, 

Montana 

- 

Submitted on briefs: December 30, 1981 

Decided: April 15, 1982 

$PR 15 ?38E File . 

11 n 

Ci Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiffs appeal from an order of the District Court 

of the Eleventh Judicial District, Flathead County, granting 

defendants' motion to dismiss in this dispute over real 

property. Plaintiffs had attempted to attack a 1971 judgment, 

claiming that the District Court exceeded its jurisdiction 

by granting more relief than was sought in the pleadings. 

In 1962, defendant E. G. Wellman and his late wife 

Jean, and plaintiffs Dalton and Anna Wellman received certain 

real property from Wellman Enterprises, a Montana corporation. 

These parties transferred the property to Shamrock, a Montana 

corporation, by warranty deed, in 1964. In 1971, E. G. 

Wellman brought an action against Dalton and Anna Wellman 

and Shamrock seeking: (1) to have the 1964 transfer of the 

real property to Shamrock voided for lack of consideration; 

(2) to have the District Court award "at least a one-half 

(1/2) interest in said property" to E. G. Wellman; and, (3) 

an order from the court restraining Dalton and Anna Wellman 

and Shamrock from disposing of or encumbering the property 

or the proceeds therefrom. A trial was held without a jury, 

defendants were not present, and their default was entered. 

In its subsequent judgment, the District Court concluded 

that: (1) the 1964 transfer to Shamrock was null and void; 

(2) the 1962 transfer was without consideration as far as 

Dalton and Anna Wellman were concerned; and, (3) E. G. Wellman 

was the sole owner of the property. 

Dalton and Anna Wellman moved to set aside the default 

and judgment, apparently on the grounds of mistake, inadvertence, 

or excusable neglect, pursuant to Rule 60(b)(l), Mont.R.Civ.P. 

After a hearing in November 1971, the District Court denied 
the motion, concluding that Dalton and Anna Wellman had 

shown "no mistake, inadvertence, or excusable neglect," or 

other reason for their default, and that granting the motion 

would unduly protract litigation and create a hardship for 

E. G. Wellman and those persons with intervening rights, who 

had relied on the judgment. The District Court found the 

evidence in support of the motion "completely insufficient" 

to move the court's discretion and justify setting aside the 

default and judgment of September 24, 1971. In 1972 the 

property was sold to Donald and Sharon Worley. 

No further action was taken until February 27, 1981, 

when Dalton and Anna Wellman filed a complaint requesting 

that an undivided one-half interest in and to the real 

property be quieted in their name, or that the court require 

defendants E. G. Wellman and Josephine Wellman to account 

for all proceeds from the sale of the property and award 

plaintiffs one-half of a11 the proceeds, together with ten 

percent annual interest thereon. The basis for the complaint 

is plaintiffs' claim that the September 24, 1971 judgment 

naming E. G. Wellman sole owner and declaring the 1962 deed 

null and void as to the plaintiffs herein, is itself void 

because it grants relief beyond the scope of the pleadings. 

Plaintiffs argue that the District Court lacked jurisdiction 

to enter the order granting such relief because the 1971 

complaint did not specifically pray for an order declaring 

void the 1962 deed and naming E. G. Wellman the sole owner 

of the property. 

On June 23, 1981, the District Court granted defendants' 

motion to dismiss, stating in its order that jurisdiction of 

the parties in the 1971 dispute was proper and that the 

present lawsuit is an attempt to attack the 1971 judgment by 
collateral issues which were finally determined over ten 

years ago. 

The issue on appeal is whether the District Court erred 

in dismissing plaintiffs' complaint. We affirm the dismissal 

but on different grounds than those utilized by the District 

Court. 

There exists no Montana case with facts specifically 

resembling those presented in this appeal. There are, 

however, two Maine cases which state the law and the policy 

grounds upon which our decision is based. 

In Royal Coachman Color Guard v. Marine Trading (Me. 

1979), 398 A.2d 382, the plaintiff filed a complaint alleging 

that the defendants had unlawfully seized a diesel engine. 

The defendants failed to answer the complaint and a default 

was entered against them for the amount of damages alleged 

by the plaintiff. The defendants thereafter filed a motion 

to set aside the judgment on the grounds of "mistake, inadvertence, surprise, or excusable neglect," pursuant to 

Rule 60(b)(l), Maine Rules of Civil Procedure. The motion 

was denied and an appeal from the denial was dismissed for 

failure to file the record on appeal within the proper time 

period. While their first appeal was still pending, defendants 

instituted a second attack on the default judgment, by 

filing a motion with a lower court which, this time utilizing 

Rule 60(b)(4), M.R.Civ.P., asserted that the default judgment 

was "void." The alleged "voidness" of the judgment was 

based upon the grounds that: (1) the clerk of the lower 

court acted in violation of Rule 55(b)(l), M.R.Civ.P.; and, 

(2) the lower court lacked jurisdiction to entertain the 

action because an unincorporated association may not, as such, 

bring a suit in the courts of Maine. The motion was denied 

and a se'cond appeal was filed. Calling the attacks "collateral," 
the high court of Maine affirmed the denial, holding that 

the second attack was barred by res judicata. 398 A.2d at 

383. In explanation, the Court stated: 

"This Court decided in Willette v. Umhoeffer 

[(Me. 1970), 268 A.2d 6171 that res judicata precluded 

consideration of Rule 60(b) issues raised by an 

appellant in a second collateral attack upon a default 

judgment where the appellant was able to raise the 

issues in a first collateral attack but failed to do 

so. Here, when their first Rule 60(h) motion was 

brought and while it was pending, defendants could 

have brought to the attention of the [lower court] 

the 'voidness' issues now being asserted, but they 

did not do so. What we said in Willette v. 

Umhoeffer, is therefore controlling. Defendants will 

not be permitted to 'reserve a portion of . . .[their] 

alleged grounds in order to lay the basis for successive 

motions seeking the same relief.' 268 A.2d at 619." 

The Court later stated: 

"The decision [in Willette] made plain that all 

legal issues must be finally resolved at some point. 

Once there has been full opportunity to present 

an issue for judicial decision in a given proceeding, 

including those issues that pertain to a court's 

jurisdiction, the determination of the court in that 

proceeding must be accorded finality as to all issues 

raised or which fairly could have been raised, else 

judgments might be attacked piecemeal and without 

end." 398 A.2d at 384. 

We adopt the reasoning of the Maine court and note 

that it is especially pertinent in the present case. Plaintiffs 

had a full opportunity to litigate the voidness issue in 

1971 when they first moved to set aside the default judgment. 

They failed to do so. The doctrine of xes judicata is 

founded upon the generally recognized public policy that 

there must be some end to litigation. The end for the 

plaintiffs in this case occurred more than ten years ago 

when they failed to raise the issue of jurisdiction and the 

District Court denied their first motion to set aside the 

default judgment. Affirmed. 

. , 14, ,AfL-L,.b 

/ Justice 
We Concur: 

.;I