                                   No. 121317

        I N THE SUPREME COURT OF THE STATE OF M N A A
                                               OTN

                                       1972



ALBERT CORBAN ,

                           P l a i n t i f f and A p p e l l a n t ,

          -VS   -
LENORE CORBAN,

                           Defendant and Respondent.



Appeal from:        D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
                    Honorable E. Gardner Brownlee, Judge p r e s i d i n g .

Counsel o f Record:

     For Appellant :

            T i p p , Hoven and B r a u l t , M i s s o u l a , Montana,
            Vernon B. Hoven a r g u e d , M i s s o u l a , Montana.

     F o r Respondent :
            R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
             Montana.
            M. Gene McLatchy a r g u e d , M i s s o u l a , Montana.



                                                   Submitted:            October 1 6 , 1972

                                                      Decided:         D E C 2 7 1972
F i l e d : DEC2 7 1ST;(
%. J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e Court.

           P l a i n t i f f husband secured a d i v o r c e from d e f e n d a n t w i f e

i n March, 1970 i n t h e d i s t r i c t c o u r t of Missoula County.                      About

e i g h t e e n months l a t e r , d e f e n d a n t w i f e f i l e d a p e t i t i o n i n t h e

same c a u s e s e e k i n g an a d j u d i c a t i o n of p r o p e r t y r i g h t s which had

n o t been sought by e i t h e r p a r t y o r a d j u d i c a t e d i n t h e d i v o r c e

proceeding.          Following a h e a r i n g , t h e d i s t r i c t c o u r t awarded de-
f e n d a n t w i f e t h e sum of $5,000 a s h e r s h a r e of t h e f a m i l y a s s e t s .

From t h i s judgment, p l a i n t i f f husband a p p e a l s .

           A l b e r t Corban and Lenore Corban were married i n P o l s o n ,

Montana i n 1940.            During t h e c o u r s e of t h e i r m a r r i a g e t h e y a c q u i r e d
t h e following property:                 L o t s on and n e a r Woods Bay on F l a t h e a d

Lake amounting t o one and one-half                     t o two a c r e s , a l o g g i n g t r u c k ,

household f u r n i t u r e , a n t i q u e c a r s , a r t equipment, and m i s c e l l a -

neous p e r s o n a l p r o p e r t y .

           O February 9, 1970, A l b e r t f i l e d an a c t i o n f o r d i v o r c e
            n

a g a i n s t Lenore.       The complaint simply sought a d i v o r c e ; it d i d
n o t seek an a d j u d i c a t i o n of p r o p e r t y r i g h t s .   Lenore s i g n e d an

a c c e p t a n c e of s e r v i c e , b u t d i d n o t appear i n t h e a c t i o n .      Her
d e f a u l t was e n t e r e d t h e r e a f t e r and A l b e r t was g r a n t e d an a b s o l u t e

d i v o r c e from Lenore on March 1 6 , 1970 by t h e d i s t r i c t c o u r t of
Missoula County.             The d i v o r c e d e c r e e was s i l e n t concerning prop-

erty rights.

           O October 5 , 1971, Lenore f i l e d a p e t i t i o n i n t h e d i v o r c e
            n
proceeding s e e k i n g a h e a r i n g t o determine a p r o p e r t y s e t t l e m e n t ,

o r i n t h e a l t e r n a t i v e s u p p o r t money and a t t o r n e y ' s f e e s .   Albert
f i l e d a motion t o quash b u t b e f o r e i t was heard Lenore f i l e d an
amended p e t i t i o n .      I n t h e amended p e t i t i o n Lenore claimed t h a t
a t t h e t i m e of t h e d i v o r c e s h e was p h y s i c a l l y and m e n t a l l y ill and
unable t o defend h e r s e l f ; t h a t i n such c o n d i t i o n s h e had f l e d t h e
state and was living off the charity of strangers in California;
that at the time she signed the acceptance of service in the
divorce action she also signed a quit claim deed to the real es-
tate on Flathead Lake upon Albert's promise that she would be
financially taken care of and supported; and that she has never
received any money or support from Albert except $1,000.    Lenore
also alleged that on her return to Montana in May, 1970, she
discovered that Albert had secured a divorce and thereafter sought
legal assistance from several attorneys eventually culminating in
this petition of October 5, 1971 and the amended petition of Nov-
ember 19, 1971.   She sought to vacate the default divorce, inter-
pose an answer and counterclaim, and to have her legal rights
adjudicated by the court.
      A hearing was held on Lenore's amended petition.     On Decem-
ber 9, 1971, the district court entered an order which, quoted in
part, stated:
       "The evidence presented does not warrant any
       setting aside of the default judgment; however,
       it does appear to the Court that the Defendant
       is entitled to have the Court determine whether
       or not the Defendant is entitled to any further
       share of the property acquired during the marriage."
The district court set the property adjudication for hearing
and ordered each party to file a complete inventory and account-
ing of the family assets as of the date the divorce complaint
was filed.
       The hearing was held thereafter and on April 27, 1972,
the district court entered findings of fact, conclusions of law
and judgment, awarding Lenore the sum of $5,000 cash "as her
share of the family assets".    Following denial of Albert's ex-
ceptions and motion to amend the findings, he appeals from this
final judgment.
                               - 3 -
       A single controlling issue determines the outcome of
this appeal, viz:   Did the district court have jurisdiction
over the subject matter of the petition, that is, the adjudi-
cation of property rights?
       The pleadings in the divorce action raised but one issue--
whether Albert was entitled to a divorce from Lenore.    Neither
party sought an adjudication of property rights.    The divorce
decree made no adjudication of property rights.    The district
court made an express finding in its order of December 9, 1971,
that "The evidence presented does not warrant any setting aside
of the default judgment   * * *."   This is equivalent to a finding
that no grounds exist for relief from the judgment under Rule 60,
M.R.Civ.P.   This should have ended the divorce action in the
district court and imparted a finality to the judgment in that
action.
       Here, the district court acquired no jurisdiction over
the subject matter of property rights in the first instance.      The
matter of property rights was foreign to the litigation and beyond
the scope of any issue in the case.    The divorce decree did not
purport to adjudicate property rights and when the district court
found that the decree should not be set aside, no basis remained
for the exercise of jurisdiction over the subject matter of prop-
erty rights in that action.    The divorce action was at an end,
and the jurisdiction of the district court therein exhausted.
       Lenore contends that Albert acquiesced in the hearing on
property rights and now that the decision has gone against him
he should not be heard to complain that she must file an inde-
pendent action to determine her property rights.    Such argument
overlooks the fundamental principle that lack of jurisdiction
over the subject matter can be raised at any time and a court
      which in fact lacks such jurisdiction cannot acquire it even
      by consent of the parties.          Reed v. Woodmen of the World, 94
      Mont. 374, 22 P.2d 819 and Wilson v. Thelen, 110 Mont. 305,
      100 P.2d 923.     In Rule 12(h)(3), M.R.Civ.P. it is stated:
               "Whenever it appears by suggestion of the parties
               or otherwise that the court lacks jurisdiction of
               the subject matter, the court shall dismiss the
               action. "
               All this may appear to require purposeless relitigation
      of identical issues by the same parties in the same court by
      overly technical application of procedural niceties.         Jursidiction--
      the right to hear and determine an issue--transcends procedural
      considerations and involves the fundamental power and authority
      of the court itself.      Additionally, an independent action to
      determine property rights involves issues not adjudicated in the
      instant case--intrinsic fraud, merger, and collateral estoppel,
      for example.    The merits of the respective claims of the parties
      to the property involved must await determination in an action
      brought for that purpose in the proper court.
               The judgment of the district court is vacated and set
      aside.



                                                        ~ssociateJustice




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