                                     No. 12917

          I N THE SUPREME COURT O T E STATE O M N A A
                                 F H         F OTN

                                        1975



LESTER J. HELLER and V I R G I N I A ANN HELLER,
h i s wife,

                             P l a i n t i f f s and Respondents,



ARTHUR S. OSBURNSEN and LUCILLE F.
OSBURNSEN, h i s w i f e ,

                             Defendants and Appellants.



Appeal from:        D i s t r i c t Court of t h e Tenth J u d i c i a l D i s t r i c t ,
                    Honorable LeRoy L. McKinnon, Judge p r e s i d i n g .

Counsel of Record :

     For Appellants :

               Johnson and F o s t e r , Lewistown, Montana
               Robert L. Johnson argued, Lcwistown, Montana

     For Respondents:

               Dockery and P a r r i s h , Lewistown, Montana
               Bradley B. P a r r i s h argued, Lewistown, Montana



                                                 Submitted:        May 9, 1975

                                                    Decided :    ,'<' 3 8 1975
                                                                    3
Filed :    ,    2 ... 'dl5
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Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
        This case has been previously before this Court; Heller
v. Osburnsen, 162 Mont. 182, 510 P.2d 13; as a declaratory
judgment action in which the district court was asked to in-
terpret the rights and obligations of the parties to a contract-
for-deed and escrow agreement arising from the sale of a ranch
by the Hellers to the Osburnsens.   Because the facts of the case
are set out in the previous Heller decision, we do not find it
necessary to again set out in detail the fact situation.
        The Hellers sold the ranch to the Osburnsens for $120,000.
A loan from the John Hancock Insurance Company of $70,000 was
taken on the property with both the Hellers and the Osburnsens
signing the loan contract as joint makers of the loan.   Thirty-five
thousand dollars of the loan was used by the Hellers to repay the
then outstanding mortgage and the remaining $35,000 was used by
the Osburnsens as the downpayment to the Hellers.
        When the Osburnsens made their payments to the escrow
agent, the First National Bank of Lewistown, the full yearly
obligation to John Hancock was paid first, with the remainder paid
to the Hellers, less any escrow fee.   The Bellers dispute the man-
ner in which the escrow agent distributed the Osburnsens' payments
and filed a declaratory judgment action in the district court.    On
June 9, 1972, the district court issued its amended judgment
which held, inter alia:
        "1. That Defendants [Osburnsens] are entitled
        to credit in the sum of $70,140.34 on the pur-
        chase price of the real property herein involved;
        that said purchase price was in the total sum of
        $120,000.00 plus interest on the unpaid balance
        at the rate of 5 1/2% per annum as set out in
        said contract; that there remains due and owing
        to Plaintiffs herein the principal sum of
        $49,859.66 plus interest on the principal sum of
        $84,850.00 from the 24th day of November, 1967,
        to the 19th day of February, 1968, and interest
        on the sum of $49,859.66 from the 19th day of
        February, 1968, and that Defendants will be en-
        titled to credit against these sums in the manner
          hereinafter set out;
          "2. That Defendants are entitled to credit on
          the unpaid balance due on said contract as set
          out herein for 50% of the sums paid to the John
          Hancock Mutual Life Insurance Company as principal
          or interest and that the remaining 50% of such
          sums paid are the sole obligation of Defendants;
          "3. That in the event the parties cannot agree
          upon the remaining balance due after crediting
          payments made by Defendants as shown by the evidence
          that either party may petition this Court for a
          Supplemental Decree and Accounting;


          "5. That the payments due by Defendants to Plain-
          tiffs are each in the amount of $4,260.00 together
          with accrued interest thereon at the rate of 5 1/2%
          per annum on the unpaid balance as the same from
          time to time appears, which said payments are due
          on or before the 10th day of January of each calen-
          dar year and subject to the restriction on pre-
          payments set out in said contract."
Osburnsens appealed from this judgment.    This Court affirmed the
district court's judgment.
          Hellers then petitioned the district court for an account-
ing as permitted in the judgment.    The district court issued its
order requiring Osburnsens to either answer Hellers' petition or
admit the truth thereof within 20 days after service upon Osburn-
sens' counsel.    The order also stated if Osburnsens' answer to
the petition denied the matters set out therein the court would
thereafter set a day for hearing the petition and answer.      Osburn-
sens filed a motion to dismiss with briefs filed by each party
and a hearing held on the motion, whereupon the motion was dis-
missed.    After a series of hearings, the district court on
September 11, 1974, entered its findings of fact and conclusions
of law, with what was termed a judgment.   In its findings of fact,
the court held in part:
          "5. The unpaid balance due on the contract to
          Plaintiffs was $84,850.00.
          "6. The amount which Defendant should have paid
          on the contract balance through December 31, 1973,
          was $21,300.00 as principal and $21,592.91 as
          interest, a total of $42,892.91. The amount
          actually paid by ~efendantsduring this period
          was $5,203.98 as principal, and $23,102.90 as
          interest, a total of $28,306.88. This leaves
          a shortage in the payments due Plaintiffs of
          $14,586.03 before adjustment for interest by
          reason of the delay in payment.


          "8. The amount which should have been paid by
          the Defendants on the contract balance through
          December 31, 1973, is the sum of $42,892.91;
          the Plaintiffs' share of principal and interest
          on the John Hancock Company loan for the same
          period was $17,751.04; the amount which should
          have gone to Plaintiffs personally was $25,141.87;
          the amount actually paid to Plaintiffs during the
          same period was $10,555.84.
          "9. The adjustment in the interest due Plaintiffs
          by reason of delay in payments is as follows: * * *
          [Statistics are here set out indicating the principal
          overpaid less the interest underpaid leaving a total
          due of $16,831.421 Thus, the sum of $16,831.42
          is due and payable from Defendants to Plaintiff
          through December 31, 1973, together with interest
          on the sum of $14,586.03 at the rate of 5 1/2%
          from January, 1974, until paid."
The Osburnsens now appeal.
          The Osburnsens present three issues for this Court's
review:
          1.   Did the district court have jurisdiction to enter a
new judgment in these proceedings different in matters of sub-
stance from an earlier judgment affirmed by this Court?
          2.   Would the enforcement of such new judgment violate
appellants' rights under the due process clause of the United
States Constitution?
          3.   Is the most recent judgment supported by the record?
          Osburnsens contend the changes made by the district
court are beyond the jurisdiction of that court.    The Osburnsens
further contend the enforcement of the district court's September
11, 1974, accounting would violate their rights under the due
process clause of the United States Constitution, arguing that no
judgment of a court affords due process of law if rendered with-
out jurisdiction.
        We must first determine whether the September 11, 1974,
accounting was in fact a new judgment or was merely a clarifi-
cation of the June 9, 1972, judgment.
        Rule 54(a), M.R.Civ.P.,    defines a "judgment" as follows:
        "A judgment is the final determination of the
        rights of the parties in an action or proceeding
        * *    *.I'




The general nature of a judgment, as stated in 49 C.J.S.   Judgments,
52, page 26, is:
        " * * * a judicial declaration by which the issues
        are settled and the rights and liabilities of the
        parties are fixed as to the matters submitted for
        decision. * * *"
        No party to this appeal questions that the rights of the
parties were not finally determined and the issues settled by
the judgment of June 9, 1972.     The total purchase price, the sole
obligation of Osburnsens to pay 50% of the John Hancock loan, and
the credits due the parties were determined in that judgment.    A
petition for an accounting and supplemental decree was permitted
in the 1972 judgment, if the parties could not agree on the remain-
ing balance due after the Osburnsens' payments were credited.    Thus
the judgment there was "interlocutory" and the rules relied on
by the appellants have no application.
        The 1974 accounting of the district court was issued
pursuant to the provisions of the 1972 "interlocutory" judgment
permitting either party to the suit to petition the district court
for an accounting and supplemental decree.    No rights determined
in the 1972 judgment were changed, nor were any of the formerly
settled issues changed.   The 1974 accounting merely clarified the
balance due the Hellers after the Osburnsens' payments were proper-
ly credited.
       The arguments presented by Osburnsens regarding the dis-
trict court's lack of jurisdiction to enter a new judgment, and
the violation of due process in so doing, are of no relevance in
this matter, as we have held the 1974 accounting was not a "new"

judgment   .
           Upon examining the record, we find the 1974 accounting
was supported by the record.
           The accounting of the district court is affirmed.
                                             I-,
                                             J




                                          Chief Justice

We concur:




  Justices
