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, Judgepresiding. 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 

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11 n Ci ClerkMr. 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 grantingmore relief than was sought in the pleadings. In 1962,defendant E. G. Wellman and his latewife Jean, and plaintiffs Dalton and Anna Wellman received certain realproperty fromWellman 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 trialwas held without a jury, defendantswere not present, and their default was entered. In its subsequent judgment,the DistrictCourt concluded that: (1)the 1964 transfer to Shamrockwas null and void;

(2)the 1962 transfer was without consideration as far as Dalton and Anna Wellmanwere 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 excusableneglect, pursuant to Rule 60(b)(l), Mont.R.Civ.P. After a hearing in November 1971, the District Court deniedthe motion, concluding that Dalton and Anna Wellman had shown "no mistake, inadvertence, or excusable neglect,"or other reason for their default,and that granting themotion would unduly protract litigation and create a hardship for E. G. Wellman and thosepersonswith intervening rights, who had relied on the judgment. The DistrictCourt 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 actionwas 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 JosephineWellman to account for all proceeds from the sale of the property and award plaintiffs one-half of a11 the proceeds, togetherwith ten percent annual interest thereon. The basis for the complaint isplaintiffs' claim that the September 24, 1971 judgment naming E. G. Wellman sole owner and declaring the 1962deed 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 DistrictCourt lacked jurisdiction to enter the order granting such relief because the 1971 complaintdid not specificallypray for an order declaring void the 1962deed and naming E. G. Wellman the sole owner of the property. On June 23, 1981, the DistrictCourt granted defendants' motion to dismiss, stating in its order that jurisdiction of the parties in the 1971 disputewas proper and that the present lawsuit is an attempt to attack the 1971 judgment bycollateral issueswhich were finally determined over ten years ago. The issue on appeal iswhether the DistrictCourt erred in dismissing plaintiffs' complaint. We affirm the dismissal but on differentgrounds 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. InRoyal Coachman Color Guard v. Marine Trading (Me. 1979), 398A.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. Themotion

was denied and an appeal from the denialwas dismissed for failure to file the record on appealwithin the proper time period. While their first appealwas stillpending, 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 judgmentwas based upon the grounds that: (1)the clerk of the lower court acted inviolation of Rule 55(b)(l), M.R.Civ.P.; and,

(2)the lower court lacked jurisdiction to entertain the action because an unincorporated associationmay not, as such, bring a suit in the courts of Maine. Themotion was denied and a se'condappealwas filed. Calling the attacks "collateral,"the high court of Maine affirmed the denial, holding that the second attack was barred by res judicata. 398A.2d at 383. In explanation, the Court stated: "ThisCourt decided inWillette v. Umhoeffer [(Me. 1970), 268A.2d 6171 that res judicataprecluded consideration of Rule 60(b) issues raised by an appellant in a second collateral attack upon a default judgment where the appellantwas 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 inWillette v. Umhoeffer, is therefore controlling. Defendantswill not be permitted to 'reserve a portion of

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# . .[their] alleged grounds in order to lay the basis for successive motions seeking the same relief.' 268A.2d at 619." The Court later stated: "Thedecision [inWillette] made plain that all legal issuesmust 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 thatpertain 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." 398A.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 firstmoved 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 theremust 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 DistrictCourtdenied their first motion to set aside the default judgment. Affirmed. 

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