                                       No.   92-363

               IN THE SUPREME COURT OF THE STATE OF MONTANA




ALVIN BIRKHOLZ ,
               Plaintiff and Appellant,


STATE OF MONTANA, et al., DEPARTMENT
OF ADMINISTRATION, DIRECTOR DEPARTMENT
OF FISH, WILDLIFE & PARKS, and MARC
RACICOT, ATTORNEY GENERAL,
               Defendants and Respondents.



APPEAL FROM:                District Court of the First Judicial District,
                            In and for the County of Lewis and Clark,
                            The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                            Alvin Birkholz, Pro Se, Miles City, Montana
               For Respondents:
                            Noman C. Peterson, Assistant Attorney General,
                            Agency Legal Services Bureau, Helena, Montana


                                      Submitted on Briefs:   September 24, 1992
                                                  Decided:   February 19, 1993
                      .,>
       ,   .     .I
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Appellant Alvin Birkholz appeals from an order of the First
Judicial District Court, Lewis and Clark County, dismissing his
complaint on the grounds that it is barred by res judicata. We
affirm.
     The sole issue on appeal is:
     Did District Judge Thomas Honzel properly dismiss Birkholzls
second malicious prosecution action filed in the First Judicial
District Court?
     On   June    30, 1990, Alvin       Birkholz   was   charged with   a
misdemeanor violation by the Department of Fish, Wildlife, and
Parks in Custer County, for failing to properly mark an unattended
fishing set line with his name and address. On September 13, 1990,
Birkholz filed a civil action in the First Judicial District Court
against the State of Montana, the Department of Administration, the
Department of Fish, Wildlife, and Parks, and the Attorney General,
and generally alleged malicious prosecution of the misdemeanor
charge.   District Judge Dorothy McCarter dismissed the malicious
prosecution action on December 17, 1990, based on Birkholzls
failure to state a claim against any of the defendants upon which
relief could be granted.
     In particular, Judge McCarter determined that Birkholz did not
meet the elements of a malicious prosecution claim. She determined
that (1) probable cause existed for the fishing violation citation;
and (2) the malicious prosecution action was premature because at
the time that Birkholz commenced the suit, the underlying criminal

                                    2
prosecution for his alleged fish and game violation was still
pending.   Birkholz did not appeal Judge McCarterls decision.
     On March 13, 1991, Birkholz failed to appear at the scheduled
trial for the fish and game violation.         He was subsequently
convicted of the misdemeanor charge.       He did not appeal this
conviction.
     Approximately one year later, on February 26, 1992, Birkholz
brought a malicious prosecution action in the Sixteenth Judicial
District Court against two justices of the peace and two district
court judges who were involved at some point in his misdemeanor
conviction.     This action was dismissed with prejudice.   We denied
Birkholz's appeal of the dismissal on the grounds that the appeal
had no merit.
     On April 8, 1992, Birkholz commenced a third malicious
prosecution action. This action was brought (for the second time)
in the First Judicial District Court.         It involved the same
parties, subject matter, and        issues that were    involved   in
Birkholz's first malicious prosecution action.          This second
malicious prosecution action in the First Judicial District Court
is the subject of this appeal.
     On June 12, 1992, District Judge Thomas Honzel dismissed
Birkholz's second malicious prosecution action in the First
Judicial District Court.     He concluded that the case is barred by
res judicata.
     The doctrine of res judicata stands for the principle that a
party should not be able to relitigate a matter that the party has
already had the opportunity to litigate.       Public policy requires
that there be some end to litigation. Turtainen v Pouken (1990), 243
                                                .
Mont. 355, 360, 792 P.2d 1089, 1092; FirstBankv.FourthJudiciulDkt. Court

(1987), 226 Mont. 515, 519, 737 P.2d 1132, 1134.
     Our Court has employed a four element test to determine
whether or not a second action is barred by res judicata.       For res
judicata to be applicable:
     (1) the parties or their privies must be the same:
      (2) the subject matter of the action must be the same;
      (3) the issues must be the same, and must relate to the
     same subject matter; and (4) the capacities of the
     persons must be the same in reference to the subject
     matter and to the issues between them.
Turtainen, 792 P.2d at 1092.
     We conclude Judge Honzel properly dismissed Birkholzlssecond
malicious prosecution action in the First Judicial District Court
based on res judicata.      All four elements of res judicata are
present.
     First, Birkholz1s second malicious prosection action in the
First Judicial District involved the same parties that were the
subject of his first suit: namely, the State of Montana, the
Department of Administration, the Department of Fish, Wildlife, and
Parks, or its Director, and the Attorney General.         Second, both
malicious prosecution suits involved identical subject matter: the
prosecution for the same fishing violation. Third, Birkholz raised
the same issues in both suits.       Finally, the capacities of the
persons involved in both lawsuits were the same.
     In short, Judge Honzel was faced with the same case that Judge
McCarter dismissed in an earlier action by Birkholz.    Therefore,
the case was barred by res judicata.
     We affirm the District Court's dismissal of Birkholz's second
malicious prosecution action in the First Judicial District Court.
The second action was barred by res judicata.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:




i    Chief Jus ice
c                                      February 19, 1993

                                  CERTIFICATE OF SERVICE

X hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Alvin Birkholz
P.O. Box 764
Miles City, MT 59301


Norman C. Peterson
Agency Legal Services Bureau, Dept. of Justice
215 No. Sanders
HeIena, MT 59620

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
