                                No. 81-244
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1981



UNITED FARM AGENCY, a Missouri Corp.,
and BILL PALMER,
                     Plaintiffs and Respondents,


EDWARD H. BLOME and ESTA R. BLOME,
husband and wife,
                     Defendants and Appellants.




Appeal from:     District Court of the Fifth Judicial District,
                 In and for the County of Beaverhead, The Honorable
                 Frank E. Blair, Judge presiding.

Counsel of Record:
      For Appellant:
                 Page Wellcome, Bozeman, Montana

      For Respondent:
                 Jardine, McCarthy       &   Grauman, Whitehall, Montana




                                 Submitted on Briefs:        September 17, 1981
                                                    ~ecided: June 24, 1982


Filed :   JUN 2 4 1982



                                     -
                                 Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

       We remand this case to the Beaverhead County District
Court because to do otherwise would result in a gross mis-
carriage of justice.    In this case, the defendants filed a
notice of appeal in a blatant attempt to deprive the trial
court of jurisdiction to rule upon a motion to reamend an
already amended judgment.    It is necessary that we review
the trial court's second amended judgment in order to reach
the real merits of this case, despite the defendants' claim
that their notice of appeal prevented the trial court from
entering its second amended judgment.
       Plaintiffs Palmer and United Farm Agency (UFA), as real
estate agents and brokers, sold farm lands for the Blomes
and received money from the purchasers.   When the Blomes
failed to pay Palmer his sales commissions, Palmer and UFA
sued them to recover the commissions.
       The Blomes filed a general denial but also alleged that
Palmer and UFA had failed to account for some of the money
received from the sales.    Because of this failure to account,
the Blomes alleged in their answer that they were entitled
to treble damages under the Montana Real Estate Licensing
Act.    The Blomes also alleged that they were entitled to an
offset against the unpaid commissions because Palmer and UFA
had failed to account for an amount between $10,000 and
$20,000, but in an amended answer filed three days before trial,
the exact amount was alleged to be $16,014.
       After a nonjury trial in which the Blomes presented an
accountant's uncontradicted testimony that Palmer and UFA
had failed to account for $16,014, the trial court did not
permit the claimed offset and held that the Blomes owed
$23,100 in unpaid commissions.     Based on the accountant's
testimony, the Blomes moved the trial court to amend the
judgment to allow the $16,014 offset.    Although Palmer and
UFA opposed the motion, they offered no evidence to contradict
the accountant's testimony. After the trial court amended
the judgment, however, Palmer and UFA apparently had second
thoughts about the propriety of the offset and hired an
accountant of their own.
     Based on their accountant's findings, Palmer and UFA
then moved the trial court, in effect, to reopen the trial
so that their accountant could testify that the $16,014 had
been properly accounted for, and therefore, that it shouldn't
be allowed as an offset.    The trial court set a hearing on
this motion for April 23, 1981 (later rescheduled for April
30, 1981), but before the hearing took place, the Blomes
filed a notice that they were appealing from the first
amended judgment.   Blome's counsel appeared at the April 23
hearing and argued that because of the notice of appeal, the
trial court had been stripped of jurisdiction to hear Palmer's
and UFA's motion.   The trial court nonetheless heard the
accountant's testimony and was satisfied that the $16,014
had been properly accounted for.    An order was entered which
held that the offset was not allowed and that the amount of
the judgment was increased back to the original amount of
$23,100 plus interest.     The trial judge also filed a memorandum
setting forth his dissatisfaction with the Blomes' attempt
to deprive him of jurisdiction to rule upon the motion to
reamend the judgment.
     Because the notice of appeal did strip the trial court
of jurisdiction, we are unable to review the second amended
judgment.    But it would also be unfair for us to review the
first amended judgment because it does not accurately
reflect the true picture at the trial level.   To review only
the first amended judgment would perhaps allow the Blomes an
undeserved windfall.   The first amended judgment, by allowing
the $16,014 offset, decreased the original $23,100 judgment
to $7,086.   The Blomes, however, by obtaining the offset,
also contend that the failure to account for the $16,014
amounted to a breach of trust under the Montana Real Estate
Licensing Act which entitles them to treble damages as a

matter of law.   If the Blomes are correct, they would be
entitled to treble damages of $48,042, in addition to the

$16,014 offset against the unpaid commissions.   This result
is neither fair nor procedurally justified.
     It is true that the appeal from the first amended

judgment divested the trial court of jurisdiction, and that
the trial court therefore had no authority to hold the April
23 hearing. But it is equally true that we will not be a

party to what could be a manifest injustice if we were to
review only the first amended judgment.
     The Blomes contend that they cut off the trial court's
jurisdiction to hear the second motion to amend when they
filed their notice of appeal.   Although the Blomes are
correct in this contention, nothing prevents this Court from
giving jurisdiction back to the trial court.   Under section

3-2-204, MCA, this Court may consider any trial court proceedings
which affect the respondents' substantial rights and may,
for good cause, order further proceedings to be had.     We
dismiss this appeal without prejudice, and remand to the
trial court for the consideration of Palmer's and UFA's
motion to disallow the $16,014 offset.
     We award costs on appeal to Palmer and UFA.   The Blomes
knew or should have known that we would not review the first
amended judgment because their notice of appeal prevented
review of this case on its merits.   Assuming the Blomes to
be correct in their assertion that a failure to account for
$16,014 in sales money entitled them to treble damages, they
should have known that before we could approve such a judgment,
we would have to be satisfied that the entire record supported
that assertion.   The purpose of Palmer's and UFA's motion to
amend the first amended judgment was to reopen the case for
their accountant's testimony that the $16,014 had been
accounted for.
    We also issue a warning to counsel that if such procedural
tactics persist, we shall impose Rule 32, M.R.App.Civ.P,
sanctions against the offending party.   Here, the Blomes did
not contend that the trial court had no authority to hear
and rule upon Palmer's and UFA's motion to reamend the
judgment, but rather, in an effort to cut off the trial
court's authority to rule, the Blomes appealed from the
judgment that Palmer and UFA were seeking to amend.   We

condemn these tactics.   They have only one effect-that of

frustrating justice.
     This cause is remanded to the ~istrictCourt for
further proceedings.
We Concur:




  &@4i4%&2!q9
       Chief Justice




             Justices
