No. 12811 IN

### THE SU1W2ME COURT 

### OF THE STATE OF MONTANA 19 

### 75

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 JudicialDistrict, Honorable Edward Dussault, Judge presiding. ,2ounselof 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

## 01975 Filed:

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

This appeal is from an order entered by the Hon. Edward l'. 3ussault, sittinginthe district court, Gallatin County, confirming a judgment entered by Hon. Jack D. Shanstrom, dated 

### July 25, 1973, infavor 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 alternativeof confirming thatjudgment, appellantsrequest a new trial. The material sequence of events leading to the instant

ascioii 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' lienand for the balance of moneys owned on a steel building sold toKamp 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 saleof the property upon hnich the lienwas 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 themotion, Judge !,essley issued an order denying the motion to setaside the default. March 31, 1972: Kamp instituted the instant action, Gallatin County cause number 20055, seeking to set aside thedefaultjudgment incause number 19818 on the basis that fraud had been committed in thatAmsterdam Lumber failed toadvise the court: a) That the property upon which the lienwas filedwas not the property upon which the building was constructed; b) of certain business transactions between theparties; 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 inGallatin County cause number 20055 and through the 

### timeof this Court's opinion in the case, Stateex rel. Amsterdam Lumber, Inc. v. District Court, 163 Mont. 182, 516 P.2d 378, 379-381, 383, 30 St.Rep. 1018, arerecited 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, thisCourt 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 tomake the order dated June 24, 1974? (2) Is the judgment entered by Judge Blair on October 1,1973, a valid judgment? (3) Is this casemoot 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, 163Mont. 182, 516 P.2d 378, 381, 30 St.Rep. 1018, inthismanner: "The second issue iswhether the issues petitioner raises in thisCourt aremoot. Mootness here is bottomed on thevalidity of the judgment entered by Judge Blair. For reasons that willappear in our discussion of the final issue, thatjudgment 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 toissues 2 and 3 was well stated by thisCourt inAnderson v. Border, 87 Mont. 4,8, 285 P. 174: "The greater portion of appellantIsexhaustive brief is devoted toan attempt todemonstrate that our former opinion in thiscase is erroneous, but the short answer is that astoallpoints which 

### were directly involved in, and were passed upon, in the former appeal, and which are involved in thiscase, 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, 133Mont. 168, 187, 320 P.2d 981; Gaffney

v. Industrial Accident Board, 133Mont. 448, 450, 324 P.2d 1063. While Kamp was not a named party inour State ex rel.Amsterdam Lumber decision, it was, however, certainly one of the real parties in interest. The attorneys representing Kamp in the districtcourt were the same attorneys representing Judge Blair inthis Court. As such Kemp shall be held tothe same standard asif it had been a named party. If Kamp feltaggrieved over this Court's decision, theproper remedy should have been tomove for a rehearing inthis Court, allowing thisCourt topromptly correct its error, not 

## -tohave sat idly by and allowed Amsterdam Lumber and thz district court torely

### 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'smotion filed October 11, 1973. Judge Dussault assumed jurisdiction in this case onApril 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. Be

### cause 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 toFnsterdam Lumber's defense of resjudicata, 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 inMontana that a court of equity has inherent power, independent of statute, togrant relief from judgments gained by fraud

## * * * the relief may be granted either on motion inthe original action or ina separate equity suit. Rule 60(b) expressly preserved this inherent power inits last sentencewhich provides: 'This rule does not limitthepower of a court to entertain an independent action torelieve a party from a judgment, order, or proceeding 

## * * *IllWhile Selway states the rule that a litigantmay 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 statethat a litigantmay pursue both remedies. The law of resjudicata remains unchanged from that stated years ago inMeyer v. Lemley, 86 Mont. 83, 95, 282 P. 268: "In the case atbar the statutoryremedy 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 topursue properly the remedy 

### it afforded 

## * * * "'If the complaining party has resorted toan adequate legal remedy, and been denied relief, this adjudication should bar any relief inequity on grounds then available which were ormight have been there urged.' The form of the legal remedy 

### is immaterial, if it be adequate. (3Freeman on Judgments, 5th ed. sec. 1194.) 

## * * 

## * " 

## * * 

## * Appellant had an adequate remedy, invoked it, lost it through itsown fault. He who summons the public force toaidhim in the assertion of hisrights must follow the rules prescribed. He cannot be permitted, after having selected an appropriate and adequate remedy and having failed through his own fault toobtain relief thereby, to then harass his blameless adversary by pursuing another and differentremedy. It is tothe interest of society that litigation end; 'interest reipublicae ut sit finis litium.

### '"

When Kamp filed itsmotion to setaside the default incause number 19818, pursuant toRules 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 togrant such relief, on the grounds of fraud. In his sworn affidavit in support of themotion to 

### set aside the default Thomas J. Kamp enumerated the identical facts forming the basis of the instant fraud action and alleged the failureof Amsterdam Lumber to inform the court of this constituted alleged fraud. In fact, Kamp explicitly admitted inone of its trialbriefs that fraud was one of the grounds advanced in support of itsmotion to setaside the default in

cause number 19818. Kamp had itsday incourt incause number 19818 and as tothe issue of whether the defaultjudgment should be 

### set aside, the pleadings on filein the instant case and answers tointerrogatories show that the instant action ismerely a rehash of Kamp's former motion to set aside the default judgment incause number even though it attempts toturn the case into an independent action based upon the theory of Selway. Kamp further contends that despite allthe foregoing, it should not be barred by the doctrine of resjudicata since Judge Lessley excluded much of the evidence which Kamp sought tooffer atthe hearing on themotion to setaside the default judgment. It alleges the result was that it was unable topresent fraud as

an issue. Under Rule 60(b)(3)

## ,M.R.Civ.P., fraud is a proper issue topresent on a motion to setaside a default judgment. If Kamp feltits evidence was erroneouslyrejected by Judge Lessley, its remedy atthat time was toappeal Judge Lessley's order denying itsmotion; not tohave further harassed Amsterdam Lumber by institutinga new and separate action. Libin v. Huffine, 124 Mont. 361, 224 P.2d 144. Kamp failed toproperly pursue the remedy originally chosen, therefore it is barred from choosing and pursuinga new and separateremedy by the doctrine of 

### res judicata. In its issue 4, Kamp, in support of itscontention that Judge Shanstrom erred inentering his order nunc pro tunc, relies on the decisions inState ex rel. Kruletz v. District Court, 110Mont. 36, 98 P.2d 883; and Stateex rel. Craigv. District Court, 153Mont. 427, 458 P.2d 608, forthe proposition that the district court has thepower tocorrect 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 factand conclusions of law, he found in favor of Kamp and could not thereafter change thatjudgment by entry of his order nunc pro tunc. We need not decide whether a clerical error ora judicial

error was made, forwhichever was committed theresult is the

same: thisaction

### willbe judged on the

### merits. If a 

### clerical

error

### was committed, 

### we would affirmJudge Dussaultlsorder confirming Judge Shanstrom's judgment forAmsterdam Lumber based upon the grounds of 

### res judicata. If a judicial errorwas made, with the result thatjudgment should have been entered for Kamp based upon the original findings of factand conclusions of law filed June 29, 1973, 

### we would have toreverse 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 infavor of Kamp, has become immaterial. Res judicata is a question of law, not of fact. Judgment for respondent Amsterdam Lumber, Inc. is affirmed.

*, * 

## --------.--------------------- Justice