delivered the opinion of the Court.
*435
Plаintiff-appellant, Clayton R. Fiscus, brings this matter to this Court, asking that, because the holding in
Fiscus v. Beartooth Electric
(1974),
On June 10, 1974, pursuant to this Court’s decision rendered in Fiscus v. Beartooth Electric, supra, the District Court entered summary judgment in favor of Beartooth and against Fiscus.
The case lay dormant on its thus dismissed status until February 3, 1978, when Fiscus moved to vacate the judgment and dismissal. Briefs were filed for and against the motion in the District Court, the Honorable Charles Luedke presiding. The court made no ruling on the motion, and on March 30, 1978, Fiscus’ motion becаme “deemed denied” under Rule 59(d) and (g), M.R.Civ.P. Fiscus then filed this appeal.
For the fact situation, see Fiscus v. Beartooth Electric, supra.
The issue at this point is a narrow procedural one, namely, whether the doctrine of either “law of the case” or res judicata bars appellant from pursuing a claim against Beartooth Electric.
Appellаnt argues that he has never had his claim adjudicated and that he has never been in court to have such made, on the merits, the factual and the legal determinations of the case. He argues that he has been procedurally barred by order of this Court dated 1974:
Appellant acknowledges that “the law of the case” and res judicata are thе legal principles generally applicable to bar those attempts by a dissatisfied litigant to reopen a matter which has been decided. He argues that all general rules however, have their exceptions, and that under the circumstances of this casе, they should be allowed under the exception of the general rule.
Black’s Law Dictionary (rev. 4th Ed., 1968), defines res judicata thus:
“A matter adjudged; a thing judicially acted upon or decided; a *436 thing or matter settled by judgment. . . Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or thеir privies in all later suits on points and matters determined in former suit . . . And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made . . . The sum and substance оf the whole rule is that a matter once judicially decided is finally decided . .
In
Western Montana Production Credit Ass’n v.
Hydroponics,
Inc.
(1966),
“ ‘The term res judicata is often used to denote two things in respect to the effect of a valid, final judgment: (1) that such judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim or demand; and (2) that such a judgment constitutes an estoppel, between the same parties or those in privity with them, as to matters that were necessarily litigated and determined although the claim or demand in the subsequent action is different. Under the first proposition the judgment operates as a bar * * *, Under the second proposition the judgment prevents the parties from relitigating only those matters that were determined.’ 1-B Moore F.P. 621-622, § 0.405. “The first proposition is properly called res judicata while the second is called collateral estoppel.”
As to the concept “law of the case”, Black’s definition includes the following:
“The decision, judgment, opinion or rulings on former appeal or writ of error become ‘law of the casе.’ . . .
The doctrine expresses practice of courts generally to refuse to reopen what has been decided . . . [I]t expresses the rule that final determination of parties’ rights . . .
“The doctrine is generally deemed applicable whether former detemination is right or wrong. . . .But some cases hold that doctrine is inapplicable where prior decision is unsound, ... or incor *437 rect principles were announced or mistake of fact was made on first appeal . . .”
“Law of the case” has been explained by the Montana Court thus:
‘The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomеs the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal; and this although upon its subsequent consideration the Supreme Court may be clearly of opinion that the former decision is erroneous. * * * it is a finаl adjudication from the consequences of which this court may not depart, nor the parties relieve themselves (citing cases).’ Carlson v. Northern Pac. R. Co.,86 Mont. 78 ,281 P. 913 , 914.
“ ‘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.’ Anderson v. Border,87 Mont. 4 , 285 P.174, 176.” Apple v. Edwards (1949),123 Mont. 135 , 139-40,211 P.2d 138 , 140.
In contravention of the rigid standards articulatеd above, appellant cites the court to
Perkins v. Kramer
(1948),
“The doctrine of res judicata, if applicable, does not prevent the court from correcting manifest error in its former judgment. Thus in Cluff v. Day,141 N.Y. 580 ,36 N.E. 182 , 183, the court said. ‘There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or- which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised.’
“When the prior decision is by a divided court, as here, . . . the court will the more readily depart from it, if erroneous. [Citation omitted.]”
In
Perkins,
the defendants contended that the plaintiff was pre
*438
eluded from maintaining his action, because of the holding in a previous case, which was described as being “an apрeal from the judgment entered in the trial court after reversal” by the state Supreme Court.
Appellant also directs our attention to a recent case of this Court,
State v. Zimmerman
(1977),
We find that Perkins is controlling in this case and that the District Court did not err in its ruling.
Next appellant argues that his constitutional right of access to the courts has been denied him. 1889 Mont. Const., Art. Ill, § 6, in effect at the time that he suffered his injuries. However, he does not develop this claim with case law or other authority and we find no merit to it.
Recognizing that his position in this appeal is probably defective under the Montana lаw on the “rules of the case” appellant argues that under federal decisions interpreting Rule 60(b), which is identical to Montana’s Rule 60(b), different solutions of the case could be arrived at. Appellant, in support of his argument, cites a number of federal cases, which wе will discuss individually in this opinion.
*439
Kalapprott v. United States
(1949),
Appellant next
cites Ackermann v. United States
(1950),
The next case cited by appellant in support of his pоsitions is
Tsakonites v. Transpacific Carriers Cor.
(S.D.N.Y.1970),
*440 In Taskonites the appellant had attempted to go to the United States Supreme Court in 1967 following an adverse result in the District Court for the Fifth Circuit of the Court of Appeals. However, the United States Supreme Court denied his application for certiorari and thus did not hear, consider and rule upon the issue which caused him to lose below, the issue there relating to whether his maritime employer had sufficient contacts with America to come under the Jones Act.
It was not until
Hellenic Lines Ltd. v. Rhoditis
(1970),
The critical factor distinguishing Tsakonites from the Hellenic Lines case and this appeal is that the United States Supreme Court did not overrule a previous decision of its own. It had not ruled as we have in this case, but chose three years after Tsakonites in the Hellenic Lines case to consider the matter and resolve the differences of the circuit courts on the issue that Tsakonites and Hellenic Lines had before them in 1967. This case, however, as it relates to the Supreme Court that issuеd it, is without any directive from other courts, as in the federal system. For that reason we think it is distinguishable.
Appellant next cites the
Griffin v. State Board of Education
(E.D.Va. 1969),
Respondent cites a number of federal cases in support of its pоsition, two of which we think are of important for discussion.
Title v. United States
(9th Cir. 1959),
“Appellant recognizes that there are reasons of public policy for assuring the finality of judgments, but suggests that under rule 60(b)(5), Fed.R.Civ.P., 28 U.S.C.A., a special rule should be adopted in denaturalization cases relaxing the strictness of the ordinary rule. In support of this, appellаnt refers to the language of the dissenting Justice in
Ackermann v. United States,
1950,
This Ninth Circuit Court of Appeals case clearly recognizes that post-judgment change in decisional law affords no avenue for reopening judgments. It is a recognition of the “law of the case” doctrine which is the law of Montana.
The second case we consider that respondent cited is
Lubben v. Selective Service System Local Bd. No. 27
(1st Cir. 1972),
“To hold otherwise would destroy the certainty which allows cоntroversies to be deemed judically concluded . . .
“ ‘It should be noted that while 60(b)(5) authorized relief from a *442 judgment on the grounds that a prior judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law appliеd by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.’ 7 Moore’s Federal Practice ¶ 60.26[3] at 325.”453 F.2d at 650 . (Emphasis in original.)
These cases show that there is ample support in the federal courts that they feel bound by the “law of the case” and that when a decisional law change occurs, subsequent to final judgment in a particular case, the “law of the case” is that final judgment should not be altered.
The judgment of the District Court is affirmed and the appeal is dismissed.