                                No.    93-490

              IN THE SUPREMZ: COURT OF THZ STATE OF MONTANA
                                      1994



JAMES P. CHALLINOR and
BETTY E. CHALLINOR,
             Plaintiffs and Appellants,


GLACIER NATIONAL BANK and
DOUGLAS B. REMICK,
             Defendants and Respondents.



APPEAL FROM:      District Court of the Nineteenth Judicial District,
                  In and for the County of Lincoln,
                  The Honorable Robert S. Keller, Judge presiding.


COUNSEL OF RECORD:
             For Appellants:
                  Russell K. Jones, Attorney at Law,
                  Spokane, Washington
             For Respondents:
                 I. James Heckathorn, Murphy, Robinson,
                 Heckathorn & Phillips, Kalispell, Montana



         c

Filed:
 Justice Terry N. Trieweiler delivered the opinion of the Court.
      James and Betty     halli in or filed a complaint in the District
 Court for the Nineteenth Judicial District in Lincoln County in
which they sought damages for an alleged breach of a suretyship
contract.     The Challinors' subsequent motion for substitution of
judge was declared void on the basis that it was untimely.       In an
order issued on August 19, 1993, the court granted summary judgment
in favor of Glacier National Bank and Remick.          The Challinors
appeal.
     We reverse and remand.
     The dispositive issue on appeal is whether the District Court
erred when it dismissed the motion for substitution of the District
Court Judge.
     This litigation arises out of a road construction contract
between the United States Forest Service and James Challinor.       In
connection with this contract, Glacier National Bank served as
surety for Challinor, guaranteeing performance by Challinor to the
Forest Service.    The surety agreement was secured by mortgages on
James and Betty Challinorsl home and land.
     In 1984, the Forest Service declared the Challinors in default
and made demand on the bank for payment pursuant to the surety
agreement. In response, Glacier National Bank performed the surety
obligation.
     In the    first of    three related    actions, the Challinors
commenced a civil action in 1986 against Glacier National Bank in
which they alleged that the bank breached the surety agreement when
it made   payment to the Forest Service over the Challinorsl

                                   2
 objection and without raising available defenses. This action was
 later dismissed by the District Court due to the failure of either
party to appear when the case was called by the court.
        In 1987, the bank commenced a mortgage foreclosure action
against the Challinors to obtain reimbursement for payments made
under the surety obligation.      The Challinors attempted to raise a
suretyship defense at the trial of this matter in 1990, but the
court disallowed the defense for the reason that it had not been
pled, was not disclosed in any pretrial discovery nor at the
pretrial conference, and was not properly before the court.           This
Court affirmed the exclusion of a suretyship defense in that action
in Glacier NationulBank v. Challinor (1992), 253 Mont. 412, 833 P.2d 1046.

        On November 28, 1990, the Challinors filsd an additional
complaint, which is the subject of this appeal, against Glacier
National Bank and Remick in which they claimed breach of a
suretyship contract due to the bank's alleged failure to assert
available defenses when payment was demanded by the Forest Service.
A summons was served on Remick in this action on January 9, 1991.
On February 26, 1991, summons was served on Glacier National Bank.
        Three days later, on March 1, 1991, the Challinors filed a
motion for substitution of judge pursuant to S 3-1-804, MCA.           The
District Court Judge did not withdraw from the case and issued an


of judge "is declared void as untimely."         Thereafter, the bank
moved    for summary judgment based       on   the   law   of   compulsory
counterclaim and res j~uticaru.   The court held that this Court's
 decision   in Glac~er.Liinonai Bank    i..   Chall~izor, 833   P.21       1046, "was

dispositive with respect to the suretyship question raised in the
 instant case."    On this basis, the District Court granted summary
judgment in the bank's favor.          This appeal followed.
      The Challinors contend that the court erred when it denied
their motion for substitution of judge, and when it granted summary
judgment based on compulsory counterclaim and res jzidicczfa .               However,

we find the issue of judicial substitution dispositive in this
case, and address only that matter.
     Montana law entitles each adverse party in a civil or criminal
case to one substitution of a district court judge.                           Section
3-1-804, MCA. Once a timely motion has been filed, the substituted
judge is without jurisdiction to act on the merits of the cause or
to decide legal issues therein.          Section 3-1-804 (1)(a), MCA; Taylor

v. Matejovs@ (1993), 261 Mont. 514, 517, 863 P.2d 1022, 1024.

     Section 3-1-804(1) (c), MCA, requires that the motion be
brought within the following time:
          When a judge is assigned to a cause for twenty (20)
     consecutive days after service of summons . .     and no         .
     motion for substitution of judge has been filed within
     said time period, the right to move for substitution of
     a judge shall be deemed waived.
The judge for whom substitution is sought has jurisdiction to
determine timeliness, and       if the motion for substitution is
untimely, shall issue an order declaring the motion void. Section
3-1-804 (1)(e), MCA.
     In   this    instance, the        court      declared      the       motion   for
substitution, filed on March 1, 1991, void because summons had been
 served on defendant Remick on January 9, 1991, more than 20 days
previous.     The Challinors, however, contend that their motion for
 substitution was timely because it was filed only three days after
summons was served on the co-defendant, Glacier National Bank.
They assert that in a case such as this where there are multiple
defendants, the time period for moving for a substitution of judge
should run from the date service of summons is complete rather than
from the date the first defendant is served.
     The bank responds that the judicial substitution statute
should   be    interpreted       to    require    a   plaintiff    to   move    for
substitution within        20   days after the first defendant is served.
The time period for one or more defendants to exercise the right to
substitution would then vary depending on the time each defendant
is served.
     Section    3-1-804,        MCA,   which     entitles   each   party   in    a
proceeding to one substitution of a judge, was created by an order
of this Court dated June 17, 1987.               As written, the statute sets
forth a time period             for exercising this right which            is   20

consecutive days "after service of summons." While the statute is
not clear with regard to multiple defendants, we hold that this
phrase contemplates that the time should run from the comaletion of
service of process.        A reasonable interpretation of the statute,
which would also ensure the most consistent application of this
provision, is that the right of any party named in the original
complaint, or any complaint amended without order of the court, to
move for judicial substitution is not waived until a judge is
assigned to a cause for           20   consecutive days after all of the

                                         5
defendants have been served.         Consequently, a motion made by any
party within 20 days after completion of service of process is
timely.
     While the concerns expressed in the dissent are noted and
well-taken, it is the opinion of the majority that those concerns
are best addressed by a prospective rule change, rather than an
after-the-fact     interpretation       which        adds   limitations    on
disqualification that had not previously been in the rule.
     In this case, the Challinors timely moved for substitution of
the District Court Judge three days after service of process was
completed.   Therefore, we conclude that the court erred when it
dismissed the motion and did not allow the Challinors to exercise
their statutory right to substitution of the District Court Judge.
     Pursuant to    S    3-1-804(1)(a),    MCA, once        the motion    for
substitution of judge was timely filed, Judge Keller was without
jurisdiction to    act    on   the   merits     of    the   case,   including
consideration of the bank's motion for summary judgment. Taylor, 863

P.2d at 1024.     Because the court was without jurisdiction to
consider the merits of the bank's arguments, we decline to review
the merits of the District Court's order granting defendants'
motion for summary judgment.     Accordingly, the order granting the
bank's motion for summary judgment is vacated and this matter
remanded for a new hearing after a substitution of judge.
We concur:



     chief Justice




1
          Justices

Justice William E. Hunt, Sr., did not participate in this decision.
Justice Fred J. Weber dissents as follows:
      Following are pertinent provisions of 5 3-1-804, MCA, which
should be considered on the issues in this case:
           3-1-804.    Substitution of d i s t r i c t judges.
           ....
          1.   A motion for substitution of a district judge
     may be made by any party to a proceeding only in the
     manner set forth herein. In a civil or criminal case,
     each adverse party, including the state, is entitled to
     one substitution of a district judge.
           * . . .
           (b)    .   .
                  . It shall be the duty of the clerk of
     court to stamp the name of the judge to whom the case is
     assigned on the face of the initial pleading, complaint,
     order to show cause, or information, and all copies
     thereof.
           (c) When a judge is assigned to a cause for (20)
     consecutive days after service of summons, or ten (lo)
     days after service of an order to show cause, information
     or other initiating document, and no motion for
     substitution of judge has been filed [within] said time
     period, the right to move for substitution of a judge
     shall be deemed waived.       . . .After the time period
     shall have run as to the original parties to the
     proceeding, no party who is joined or intervenes
     thereafter shall have any right of substitution, except
     that one third party defendant who is not an original
     party in any pending case may have a right of one
     substitution within twenty (20) days after the service
     upon the third party defendant of a third party
     complaint.
          ....
           (e) Any motion for substitution which is not timely
     filed is void for all purposes.      The judge for whom
     substitution is sought shall have jurisdiction to
     determine timeliness, and if the motion for substitution
     is untimely, shall make an order declaring the motion
     void.
The following are key points to be considered in this case:
motion for substitution may be made "onlyn in the manner set forth
in the rule.    In a civil case each party is entitled only to "one"
substitution.    The clerk of court stamps the name of the judge to
whom the case is assigned on the face of the complaint with the
res-~lt
      that the Zhallinors had knowledge of the judge to >~;?~nz~
                                                             the

case was assigned from the t h e of filing of their conplaint.
       In substance the majority opicion concludes:
       A reasonable interpretation of the statute, which would
       also ensure the most consistent application of this
       provision, is that the right of any party . . . to move
       for judicial substitution is not waived until a Sudge is
       asslgned to a cause for 20 consecutive days after z L l l of
       those defendant have been served.
I disagree with the conclusion that the foregoing is a reasonable
interpretation of 1 3-1-804, MCA.
       On November 23, 1990, the plaintiffs Challinors filed their
complaint and had knowledge on that date that Judge Keller had been
assigned the case.      On January 9 , 1991, Challinors caused the
sumaons to be served on defendant Remick.       On February 26, 1991,
Challinors caused the summons to be served on Glacier Na"ronal
Bank
       At issue here is the time allowed to plaintiffs Challinors to
file their motion for substitution.       Because the rule triggering
date is the date of service of summons, even though Challinors knew
the identity of the assigned judge on November 23, 1993, the
earliest date on which the rule could be applied to them is 20 days
after the service of sumnons on Remick on January 9 , L991.           I
suggest that the reasonable interpretation of the rule is that
~,vlthin days after the summons was served on Remick on January 9,
       20
1991, the Challinors and Remick were required to file any aotrnn

for substitution.     I further suggest that within 20 days after
February 26, 1991, when sumnons was served on the Bank, it was
repired to file any motion for substitution.
        The foregoing interpretation is consistent with the s a c e
                                                             tt:
,).,--..ex~3asizes
   :m
r-i-       i      that   a motion ~.ust made as provided only ir the
                                      be
rala.    T?,is interpretation is fair to plaintiffs challinors as it
gives them from Novenber 28, 1990 to January 29, 1991 within -+jhich
t~ nake a norion for substitution. As to defendant Reinick he % u d
                                                               o:
have    u ~ t i lJanuary 29, 1991,   The Back after beinq serve2 c n
Febrcary 26, 3.991, would have until March 18, 1991, in which to
file a motion.
       The rule is already more than fair to plaintiffs such as the
Challinors as they are granted 20 days after service of summons,
even though they have had knowledge of the judge to whom the case
was assigned from the date of the filing of their complaint.          I
emphasize that the majority opinion essentially eliminates the
prinary purpose of the rule which is to require substitution to
take place promptly and thereby eliminate that which is now all3weri
under the majority opinion--in a multi-defendant case, all the
plaintiff need do is wait to serve one named defendant or John Doe
defendant, and he then preserves the right to move for substitution
of the judge until any time he chooses in the course of the
litigation. The obvious purpose of the rule is to keep from having
the rule interpreted as the majority has done.     The result of the
najority opinion is that where one named party has not been server3,
the plaintiff or plaintiffs and all defendants may control the
lirrlqation by moving to substitute a judge at any stage of t h e
proceeding, including at the time of trial.     Obviously nothing of
that nature was contemplated under the rule.
        -
        rrcz the   vording of the majoriry opinion, it appears that the
majority ray have been influenced by the fact that within three
clays   after the service on the Bank, the Challinors did file a
~.otionfor substitution which was three days after the service on
the Bank and only a relatively short time after the service on
Eenick.     If that time frame influenced the majority, J would point
cut that under my suggested interpretation of the rule which would
require the Challinors to file their motion by January 29, 1991,
they were given 60 days from the date on which they acquired the
knowledge of the name of the district judge to whom their case was
assigned.     Sixty days is an ample time.
        I would affirm the determination of the District Court.




Chief Justice J. A. Turnage concurs in the f o r w g dissent.
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