No. 12811 

IN THE SU1W2ME COURT OF THE STATE OF MONTANA 

19 7 5 

lUMP IMPLEMENT COMPANY, 

a corporation, THOMAS J. 

KAMP and FENNA H. KAMP, 

Plaintiffs and Appellants, 

-vs - 

AMSTERDAM LUMBER, INC . , 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Edward Dussault, Judge presiding. 

,2ounsel of Record : 

For Appellants : 

Bennett and Bennett, Bozeman, Montana 

Lyman H. Bennett Jr. argued and Lyman Bennett, I11 

argued, Bozeman, Montana 

For Respondent: 

Drysdale, Mc lean and Scully, Bozeman, Montana 

James A. Mc k ,lean argued, Bozeman, Montana 

submitted: March 5, 1975 

Decided : WPR '1 0 1975 

Filed : 

&ypR u (jib 
Br. JusLice Idesley "as~les delivered the 3pinion of the Court. 

This appeal is from an order entered by the Hon. Edward 

l'. 3ussault, sitting in the district court, Gallatin County, 

confirming a judgment entered by Hon. Jack D. Shanstrom, dated 

July 25, 1973, in favor of defendant Amsterdam Lumber, Inc., and 

against plaintiffs Kamp Implement Company, a corporation, Thomas 

J. Kamp and Fenna H. Kamp (hereinafter collectively referred to 

as Yarnp). In the alternative of confirming that judgment, appellants request a new trial. 

The material sequence of events leading to the instant 

as cioii was: 

October 29, 1971: Amsterdam Lumber filed a complaint in 

GalLatin County district court, cause number 19818. Basically 

the complaint prayed for foreclosure of a mechanics' lien and 

for the balance of moneys owned on a steel building sold to Kamp 

by Amsterdam Lumber. 

October 30, 1971: Thomas J. Kamp and Kamp Implement Compdny were served with summons and complaint. 

November 2, 1971: Fenna H. Kamp was served with summons 

and zomplaint. 

February 28, 1972: After evidence was presented to the 

court, Hon. W. W. Lessley entered a default judgment against Kamp 

and further provided for foreclosure by sale of the property upon 

hnich the lien was filed. No appearance was ever entered by Kamp. 

March 8, 1972: Kamp filed a motion to set aside the 

deiault. 

March 22, 1972: After a hearing on the motion, Judge 

!,essley issued an order denying the motion to set aside the default. 

March 31, 1972: Kamp instituted the instant action, 

Gallatin County cause number 20055, seeking to set aside the default 
judgment in cause number 19818 on the basis that fraud had 

been committed in that Amsterdam Lumber failed to advise the 

court : 

a) That the property upon which the lien was filed was 

not the property upon which the building was constructed; 

b) of certain business transactions between the parties; 

c) that the building was defective; and 

d) of the disability of Thomas J. Kamp because of a heart 

condition. 

Events pertinent to this appeal occurring after the filing 

of the complaint in Gallatin County cause number 20055 and through 

the time of this Court's opinion in the case, State ex rel. 

Amsterdam Lumber, Inc. v. District Court, 163 Mont. 182, 516 P.2d 

378, 379-381, 383, 30 St.Rep. 1018, are recited therein. 

These events, material to our consideration, occurred 

subsequent to the Court's opinion: 

April 25, 1974: Hon. Edward T. Dussault assumed jurisdiction. 

June 14, 1974: A hearing was held before Judge Dussault. 

June 24, 1974: Judge Dussault entered findings of fact 

and conclusions of law, concluding "that by reason of the present 

situation of the proceedings in this case, this Court should make 

and enter an appealable Order". He then ordered Judge Blair's 

order, dated September 21, 1973, set aside as void; confirmed 

the findings of fact and conclusions of law of Judge Shanstrom 

dated July 11, 1973; confirmed the judgment of Judge Shanstrom 

dated July 25, 1973; and, in the alternative, ordered a new trial. 

Kamp on appeal presents five issues: 

(1) Did Judge Dussault have jurisdiction to make the 

order dated June 24, 1974? 

(2) Is the judgment entered by Judge Blair on October 1, 
1973, a valid judgment? 

(3) Is this case moot on the basis of the provisions of 

section 58-423, R.C.M. 1947? 

(4) Did Judge Shanstrom err in entering his order 

nunc pro tunc, dated July 11, 1973? 

(5) Is there sub stantial evidence to support a 

judgment in favor of Kamp? 

Mamp's issues 2 and 3 were determined in this Court's 

opinion in State ex rel. Amsterdam Lumber, Inc. v. District Court, 

163 Mont. 182, 516 P.2d 378, 381, 30 St.Rep. 1018, in this manner: 

"The second issue is whether the issues petitioner 

raises in this Court are moot. Mootness here is 

bottomed on the validity of the judgment entered 

by Judge Blair. For reasons that will appear in 

our discussion of the final issue, that judgment 

is void and of no force and effect. Hence it 

could not be satisfied by deposit and notice and 

the issues purportedly concluded thereby remain for 

adjudication." 

The law with respect to issues 2 and 3 was well stated by 

this Court in Anderson v. Border, 87 Mont. 4,8, 285 P. 174: 

"The grea ter portion of appellant Is exhaustive 

brief is devoted to an attempt to demonstrate 

that our former opinion in this case is erroneous, 

but the short answer is that as to all points 

which were directly involved in, and were passed 

upon, in the former appeal, and which are involved 

in this case, whether the opinion is right or wrong, it 

is the law of the case, was binding upon the trial court, 

and is binding upon us." 

See: Libin v. Huffine, 124 Mont. 361, 364, 224 P.2d 144; Central 

Montana Stockyards v.. Fraser, 133 Mont. 168, 187, 320 P.2d 981; Gaffney 

v. Industrial Accident Board, 133 Mont. 448, 450, 324 P.2d 1063. 

While Kamp was not a named party in our State ex rel.Amsterdam 

Lumber decision, it was, however, certainly one of the real parties in 

interest. The attorneys representing Kamp in the district court were 

the same attorneys representing Judge Blair in this Court. As such 

Kemp shall be held to the same standard as if it had been a named party. 

If Kamp felt aggrieved over this Court's decision, the proper remedy 

should have been to move for a rehearing in this Court, allowing 

this Court to promptly correct its error, - not to have sat idly 

by and allowed Amsterdam Lumber and thz district court to rely 
on the error. 

We turn now to Kamp's issue 1: Did Judge Dussault have 

jurisdiction to make his order dated June 24, 1974? We hold 

that he did. Kamp's argument, in summary, is: When this Court 

remanded this controversy to the district court on November 27, 

1973, the only item before the district court was Amsterdam 

Lumber's motion filed October 11, 1973. Judge Dussault assumed 

jurisdiction in this case on April 25, 1974. No further action 

was taken until some fifty days later, on June 14, 1974, when 

Judge Dussault held a hearing on Amsterdam Lumber's motion. This 

time lapse of fifty days failed to comply with the time limits 

of Rule 59, M.R.Civ.P. Therefore, Kamp alleges, Judge Dussault 

lost jurisdiction to make his order dated June 24, 1974. 

While Kamp proposes an interesting argument, it is based 

upon the assumption that Judge Blair's judgment was valid, an 

assumption we have already considered and found wanting. Because Judge Blair's judgment was void, there was no final judgment to appeal from, on which to base a motion to vacate or alter 

a judgment, nor from which Rule 59, M.R.Civ.P., time limits could 

be computed. There remained the necessity for a judge with jurisdiction to enter an appealable order, as was recognized by Judge 

Dussault in his findings of fact, conclusions of law and order 

entered June 24, 1974. Judge Dussault was complying with the 

directions of this Court in State ex rel. Amsterdam Lumber, Inc., 

supra. 

We affirm Judge Dussault's order which confirmed Judge 

Shanstrom's judgment and substituted findings of fact and conclusions of law. We hold, as did Judge Shanstrom, that the denial 

of Kamp's motion to set aside the default in cause number 19818, 

and Kamp's failure to appeal therefrom, constitutes a bar to the 

present action under the doctrine of res judicata. 
In reply to Fnsterdam Lumber's defense of res judicata, 

Kamp relies on the decision in Selway v. Burns, Estate of Burles, 

150 Mont. 1, 8, 429 P.2d 640, wherein the Court stated: 

" * * * it has long been the rule in Montana 

that a court of equity has inherent power, 

independent of statute, to grant relief from 

judgments gained by fraud * * * the relief may 

be granted either on motion in the original 

action or in a separate equity suit. Rule 

60(b) expressly preserved this inherent power 

in its last sentence which provides: 'This 

rule does not limit the power of a court to 

entertain an independent action to relieve a 

party from a judgment, order, or proceeding * * *IllWhile Selway states the rule that a litigant may obtain 

relief from a judgment obtained by fraud either by a motion 

under Rule 60(b), M.R.Civ.P., or - by an independent action, it 

does not state that a litigant may pursue both remedies. The 

law of res judicata remains unchanged from that stated years 

ago in Meyer v. Lemley, 86 Mont. 83, 95, 282 P. 268: 

"In the case at bar the statutory remedy was 

plain, speedy and adequate. Under it appellant 

could have obtained complete relief. It could 

have had the decree, and all subsequent proceedings thereunder, set aside * * *. Appellant 

invoked the aid of the statute, but through its 

own fault failed to pursue properly the remedy it 

afforded * * * 

"'If the complaining party has resorted to an 

adequate legal remedy, and been denied relief, 

this adjudication should bar any relief in equity 

on grounds then available which were or might have 

been there urged.' The form of the legal remedy 

is immaterial, if it be adequate. (3 Freeman on 

Judgments, 5th ed. sec. 1194.) * * * 

" * * * Appellant had an adequate remedy, invoked 

it, lost it through its own fault. He who summons 

the public force to aid him in the assertion of 

his rights must follow the rules prescribed. He 

cannot be permitted, after having selected an 

appropriate and adequate remedy and having failed 

through his own fault to obtain relief thereby, 

to then harass his blameless adversary by pursuing 

another and different remedy. It is to the interest 

of society that litigation end; 'interest reipublicae 

ut sit finis litium. '" 

When Kamp filed its motion to set aside the default in 
cause number 19818, pursuant to Rules 55(c) and 60(b), M.R.Civ.P., 

it had an adequate remedy. Rule 60(b) (3) permits a litigant to 

move for relief, and the court to grant such relief, on the 

grounds of fraud. In his sworn affidavit in support of the motion 

to set aside the default Thomas J. Kamp enumerated the identical 

facts forming the basis of the instant fraud action and alleged 

the failure of Amsterdam Lumber to inform the court of this 

constituted alleged fraud. In fact, Kamp explicitly admitted 

in one of its trial briefs that fraud was one of the grounds 

advanced in support of its motion to set aside the default in 

cause number 19818. 

Kamp had its day in court in cause number 19818 and as 

to the issue of whether the default judgment should be set aside, 

the pleadings on file in the instant case and answers to interrogatories show that the instant action is merely a rehash of 

Kamp's former motion to set aside the default judgment in cause 

number even though it attempts to turn the case into an 

independent action based upon the theory of Selway. 

Kamp further contends that despite all the foregoing, it 

should not be barred by the doctrine of res judicata since Judge 

Lessley excluded much of the evidence which Kamp sought to offer 

at the hearing on the motion to set aside the default judgment. 

It alleges the result was that it was unable to present fraud as 

an issue. Under Rule 60 (b) (3) , M.R.Civ.P., fraud is a proper 

issue to present on a motion to set aside a default judgment. If 

Kamp felt its evidence was erroneously rejected by Judge Lessley, 

its remedy at that time was to appeal Judge Lessley's order 

denying its motion; not to have further harassed Amsterdam Lumber 

by instituting a new and separate action. Libin v. Huffine, 124 

Mont. 361, 224 P.2d 144. Kamp failed to properly pursue the remedy 

originally chosen, therefore it is barred from choosing and pursuing 
a new and separate remedy by the doctrine of res judicata. 

In its issue 4, Kamp, in support of its contention that 

Judge Shanstrom erred in entering his order nunc pro tunc, 

relies on the decisions in State ex rel. Kruletz v. District 

Court, 110 Mont. 36, 98 P.2d 883; and State ex rel. Craig v. 

District Court, 153 Mont. 427, 458 P.2d 608, for the proposition 

that the district court has the power to correct a clerical error, 

but not a judicial error, by entry of a nunc pro tunc order. Kamp 

contends that when Judge Shanstrom executed Kampls findings of 

fact and conclusions of law, he found in favor of Kamp and could 

not thereafter change that judgment by entry of his order nunc 

pro tunc. 

We need not decide whether a clerical error or a judicial 

error was made, for whichever was committed the result is the 

same: this action will be judged on the merits. If a clerical 

error was committed, we would affirm Judge Dussaultls order confirming Judge Shanstrom's judgment for Amsterdam Lumber based 

upon the grounds of res judicata. If a judicial error was made, 

with the result that judgment should have been entered for Kamp 

based upon the original findings of fact and conclusions of law 

filed June 29, 1973, we would have to reverse that judgment, 

again on the grounds of res judicata. Either way, Amsterdam 

Lumber prevails. 

Kampls issue 5, whether there is substantial evidence to 

support a judgment in favor of Kamp, has become immaterial. Res 

judicata is a question of law, not of fact. 

Judgment for respondent Amsterdam Lumber, Inc. is affirmed. 

*, * --------.--------------------- 

Justice