                                No. 12626

       I N THE SUPREME COURT O THE STATE O MONTANA
                              F           F

                                     1973



STATE O MONTANA e x r e l .
       F
A S E D M LUMBER, I N C ,
 MTR A                      .
                          Relator,



DISTRICT COURT O THE EIGHTEENTH JUDICIAL
                F
DISTRICT FOR THE STATE O MONTANA I N AND
                        F
FOR THE COUNTY O GALLATIN, and t h e
                F
HONORABLE F A K E. BLAIR, PRESIDING JUDGE
           RN
THEREOF,

                          Respondents :



ORIGINAL PROCEEDING:

Counsel of Record:

    For R e l a t o r :

           Drysdale, McLean and S c u l l y , Bozeman, Montana
           James A . McLean a r g u e d , Bozeman, Montana

    For Respondents:

           Lyman H. B e n n e t t , Jr. and Lyman B e n n e t t , 1 1 a r g u e d ,
                                                                   1
            Bozeman, Montana



                                            Submitted:     November 8 , 1973

                                             Decided :NOV     2 7 1973
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

    This is an original proceeding wherein petitioner seeks a
writ of mandate or other appropriate writ to compel a district
judge to relinquish jurisdiction pursuant to an affidavit of
disqualification filed against him in civil cause 820055 in the
district court of Gallatin County and to stay further proceedings
therein until a new judge assumes jurisdiction.
    Petitioner is Amsterdam Lumber, Inc., the defendant in
civil cause #20055 entitled "Kamp Implement Company, a corpora-
tion, Thomas J. Kamp and Fenna H. Kamp v. Amsterdam Lumber, Inc.1 I
in the district court of Gallatin County.       This action seeks to
set aside a default judgment secured by petitioner against Kamp
Implement Company, a corporation, Thomas J. Kamp and Fenna H.
Kamp in civil cause 819818 in the same court.
    The Hon. W. W. Lessley was the original judge in jurisdiction
in cause !,20055.   Judge Lessley was disqualified and the Hon. Jack
D. Shanstrom thereafter assumed jurisdiction. Judge Shanstrom
heard the case without a jury, the respective parties submitted
proposed findings of fact and conclusions of law, and Judge
Shanstrom thereafter entered findings of fact and conclusions of
law identical to those submitted by plaintiffs Kamp Implement
Company, a corporation, et al., but added the additional phrase
"LET JUDGMENT ENTER ACCORDINGLY I'   .   These were signed by Judge
Shanstrom on June 27, 1973 and filed with the clerk of court on
June 29, 1973.
    Subsequently on July 11, Judge Shanstrom entered an order
nunc pro tunc reciting that he had made a clerical error in
signing the findings of fact and conclusions of law submitted
by plaintiffs, voided the same, and entered findings of fact and
conclusions of law identical to those originally proposed by
defendant Amsterdam Lumber, Inc. with the additional phrase
"Let the Attorney for the Defendant prepare the appropriate
Judgment   .
           I1
      On J u l y 18, p l a i n t i f f s Kamp Implement Company, e t a l . f i l e d

exceptions t o t h e order nunc pro tunc and t h e amended f i n d i n g s
of f a c t and conclusions of law, together with a motion t o annul
t h e same.
      On J u l y 25, Judge Shanstrom entered judgment i n conformity
with t h e s u b s t i t u t e d f i n d i n g s of f a c t and conclusions of law.
T h e r e a f t e r Judge Shanstrom d i s q u a l i f i e d himself and t h e Hon.
Frank E.Blair assumed j u r i s d i c t i o n .
      Judge B l a i r held a hearing on p l a i n t i f f s ' motion of J u l y
18.     On September 2 1 , Judge B l a i r entered an order (1) voiding

Judge Shanstrom's nunc pro tunc o r d e r , (2) voiding Judge Shan-
strom's s u b s t i t u t e d f i n d i n g s of f a c t and conclusions of law,
( 3 ) voiding t h e judgment i n conformity with t h e s u b s t i t u t e d
f i n d i n g s , and (4) r e i n s t a t i n g t h e o r i g i n a l f i n d i n g s of f a c t and
conclusions of law proposed by p l a i n t i f f s , Kamp Implement Company,
et al.      Judge B l a i r f i l e d an extensive opinion w i t h h i s o r d e r ,
t h e substance of which was t h a t any e r r o r t h a t -                    have been made
i n t h e o r i g i n a l f i n d i n g s and conclusions was a j u d i c i a l e r r o r
r a t h e r than a c l e r i c a l e r r o r , precluding t h e subsequent e n t r y
of t h e order nunc pro tunc and the s u b s t i t u t e d f i n d i n g s and con-
clusions.
      On October 1, Judge B l a i r entered judgment i n conformity

with Judge ~ h a n s t r o m ' s o r i g i n a l f i n d i n g s of f a c t and conclusions
of law.
      On October 2 , p l a i n t i f f s f i l e d and served a n o t i c e of e n t r y

of judgment and tender of payment of t h e amount owed by p l a i n t i f f s
t o defendant under t h e judgment of t h e previous day by d e p o s i t i n g
$8,948.97 i n a Bozeman bank pursuant t o s e c t i o n 58-423, R.C.M.
1947.
      On October 11, defendant Amsterdam Lumber, Inc.                              f i l e d a motion
t o a l t e r o r vacate t h e order and judgment entered by Judge B l a i r ,
o r i n t h e a l t e r n a t i v e f o r a new t r i a l .     O t h e same day defendant
                                                                 n
f i l e d an a f f i d a v i t of d i s q u a l i f i c a t i o n of Judge B l a i r .
      On October 1 8 , p l a i n t i f f s Kamp Implement Company, e t a l .

f i l e d a motion t o s t r i k e t h e a f f i d a v i t of d i s q u a l i f i c a t i o n of
Judge B l a i r .
      On October 19, Judge B l a i r g r a n t e d p l a i n t i f f s ' motion t o

s t r i k e t h e d i s q u a l i f i c a t i o n a f f i d a v i t and o v e r r u l e d d e f e n d a n t ' s
motion t o c o n t i n u e t h e c a u s e on t h e ground t h a t Judge B l a i r d i d
n o t have j u r i s d i c t i o n .      Judge B l a i r proceeded t o h e a r d e f e n d a n t ' s
motion t o a l t e r o r v a c a t e h i s previous o r d e r and judgment o r i n
t h e a l t e r n a t i v e f o r a new t r i a l and took t h e m a t t e r under a d v i s e -
ment.
      On October 25, p e t i t i o n e r Amsterdam Lumber, I n c . f i l e d t h e

i n s t a n t o r i g i n a l proceeding i n t h i s Court seeking a w r i t of
mandate o r o t h e r a p p r o p r i a t e w r i t t o compel Judge B l a i r t o honor
t h e a f f i d a v i t of d i s q u a l i f i c a t i o n and r e l i n q u i s h j u r i s d i c t i o n i n
c a u s e #20055.         On t h e same day p e t i t i o n e r was heard ex p a r t e and
t h i s Court i s s u e d an o r d e r s e t t i n g t h e m a t t e r f o r a d v e r s a r y h e a r i n g .
       S e r v i c e of process i n t h e i n s t a n t proceeding was made on
Judge B l a i r on October 26.                   Judge B l a i r acknowledged s e r v i c e and
appended t h e following n o t a t i o n thereon:
               "Decision has been made i n a l l m a t t e r s
               presented t o m by counsel and mailed t o
                                    e
               t h e c l e r k of c o u r t f o r f i l i n g .
                " ~ a t e dOctober 26, 1973 a t 2:25 p.m.                        o'clock.
                                              " / s / Frank E. B l a i r
                                                                                   1'
                                              "       Judge p r e s i d i n g .
      Judge       lair's o r d e r denying t h e motion of Amsterdam Lumber,
Inc. t o a l t e r o r v a c a t e h i s previous o r d e r and judgment o r i n t h e
a l t e r n a t i v e f o r a new t r i a l was dated October 26 and r e c e i v e d by
t h e c l e r k of c o u r t f o r f i l i n g on October 29.
      Judge B l a i r f i l e d an e x t e n s i v e opinion w i t h h i s o r d e r of
denial.        The g i s t of t h i s opinion gave t h r e e reasons f o r h i s
decision:          (1) t h e p r e s i d i n g judge cannot be d i s q u a l i f i e d by a
l i t i g a n t a f t e r judgment and p r i o r t o h e a r i n g a motion f o r new
t r i a l , (2)      Judge Shanstrom's o r d e r nunc pro tunc and s u b s t i t u -
t i o n of f i n d i n g s was i n v a l i d because a j u d i c i a l e r r o r r a t h e r than
a clerical error was involved, and (3) the issues raised by
Amsterdam Lumber, Inc.'s motion are moot as the judgment has
been paid in full.
    The adversary hearing was held before this Court in the instant
original proceeding on November 8. Immediately prior thereto
respondents filed a motion to dismiss on three grounds (1) that
a writ of mandate is not an available remedy, (2) that the issues
were moot, and (3) that the affidavit of disqualification was
defective.
    The matter before us presents a     procedural tangle of con-
siderable proportions.   Our approach is to promptly unsnarl this
procedural morass to enable the trial court to finally resolve
the substantive rights of the parties on the merits of the liti-
gation.
    This brings us to the first issue:    Is a writ of mandate or
other appropriate writ available as a remedy? We need not limit
ourselves to consideration of the circumstances under which a writ
of mandate may issue, but instead expand our inquiry to include
any original or remedial writ.   Petitioner seeks relief by writ
of mandate or other appropriate writ.    Rule 17( ) Rules of
                                                 a,
Appellate Civil Procedure provides:
    "WHEN ACCEPTED. The supreme court is an appellate
    court but it is empowered by the constitution of
    Montana to hear and determine such original and re-
    medial writs as may be necessary or proper to the
    complete exercise of its jurisdiction. The institu-
    tion of such original proceedings in the supreme court
    is sometimes justified by circumstances of an emergency
    nature, as when a cause of action or a right has arisen
    under conditions making due consideration in the trial
    courts and due appeal to this court an inadequate remedy,
    or when supervision of a trial court other than by
    appeal is deemed necessary or proper. 11
    Although this rule was adopted when the 1889 Montana Consti-
tution was in effect, it is equally applicable to the 1973 Montana
Constitution, Art. VII, Sections 1 and 2 of the 1973 Montana
Constitution provide:
         "section 1. Judicial power. The judicial
    power of the state is vested in one supreme court,
    district courts, justice courts, and such other
    courts as may be provided by law. I I
          11
         Section 2. Supreme court jurisdiction. (1)
   The supreme court has appellate jurisdiction and
   may issue, hear, and determine writs appropriate
   thereto. It has original jurisdiction to issue, hear,
   and determine writs of habeas corpus and such other
   writs as may be provided by law.
        "2 It has general supervisory control over
         ()
    all other courts. * * *'I.
    Hence our inquiry is whether supervision of a trial court
other than by appeal is deemed necessary or proper in the instant
case.   Here, we consider such supervision necessary and proper
to promptly resolve the procedural questions that have arisen.
The remedy by appeal is neither speedy nor adequate here and
can only result in prolonging ultimate resolution of this case
in the trial court and subsequently upon appeal to this Court.
In our view a clear error affecting jurisdiction has occurred
that would require remand to the trial court for further pro-
ceedings following appeal, with at least the possibility of a
second appeal to this Court thereafter.
    The second issue is whether the issues petitioner raises
in this Court are moot.    Mootness here is bottomed on the validity
of the judgment entered by Judge Blair.    For reasons that will
appear in our discussion of the final issue, that judgment is
void and of no force and effect.   Hence it could not be satisfied
by deposit and notice and the issues purportedly concluded thereby
remain for adjudication.
    The final issue is basic to our decision:   Did   Judge Blair
lose jurisdiction following the filing of the affidavit of dis-
qualification by Amsterdam Lumber, Inc.?   Respondents argue that
Judge Blair did not lose jurisdiction because (1) the affidavit
of disqualification was defective, and (2) the presiding judge
cannot be disqualified from hearing a motion for a new trial.
     The a f f i d a v i t of d i s q u a l i f i c a t i o n reads:
                           "AFFIDAVIT O DISQUALIFICATION
                                       F
     "STATE O MONTANA
             F                        1
                                      :    ss.
     "County of G a l l a t i n       )
          "JAMES A. McLEAN, being f i r s t duly sworn, de-
     poses and says:
                h hat he i s one of t h e a t t o r n e y s f o r t h e De-
     fendant, A S E D M LUMBER, I N C . , and t h a t a Motion
                         MT R A
     i s now pending o r intended t o be f i l e d by t h e De-
     fendant i n t h e above-entitled c o u r t and t h a t t h e
     Honorable Frank E. B l a i r a t t h e present t i m e has
     j u r i s d i c t i o n i n a l l proceedings i n t h e above-entitled
     action :
             ti hat Defendant has informed your A f f i a n t t h a t
     i t has reason t o b e l i e v e , and does b e l i e v e , t h a t i t
     cannot have a f a i r and i m p a r t i a l hearing b e f o r e t h e
     s a i d Honorable Frank E. B l a i r , a s Judge of s a i d
     Court, by reason of t h e b i a s and p r e j u d i c e of such
     Judge.
               "WHEREFORE, your A f f i a n t moves t h a t another
     Judge of t h e D i s t r i c t Court be c a l l e d i n t o hear
     f u r t h e r proceedings i n t h i s cause.


                                                 "James A. McLean
                                                  JAMES A. M L A
                                                            cE N
     "Subscribed and sworn t o before m e t h i s 5 t h day of
     October. 1973.
                                  "Sandra K. Murphy
                                  "Notary Public f o r t h e S t a t e
                                      of ~ o n t a n a ,Residing a t Bozeman,
                                      Montana
                                  I I M Commission e x p i r e s August
                                       y
     " ( N o t a r i a l Seal)        29, 1975."
     The s t a t u t e on d i s q u a l i f i c a t i o n i s s e c t i o n 93-901, R.C.M.
1947, which reads i n p e r t i n e n t p a r t :
     "Cases i n which judge may be d i s q u a l i f i e d - - - c a l l i n g
     i n another judge. Any j u s t i c e , judge o r j u s t i c e of
     t h e peace must n o t s i t o r a c t a s such i n any a c t i o n
     o r proceeding:


               "4. When e i t h e r p a r t y makes and f i l e s an a f f i -
     d a v i t a s h e r e i n a f t e r provided, t h a t he has reason t o
     b e l i e v e , and does b e l i e v e , he cannot have a f a i r and
     i m p a r t i a l hearing o r t r i a l before a d i s t r i c t judge.
     Such a f f i d a v i t may be made by any p a r t y t o an a c t i o n ,
     motion, o r proceeding, p e r s o n a l l y , o r by h i s a t t o r n e y
     o r a g e n t , and s h a l l be f i l e d with t h e c l e r k of t h e
     d i s t r i c t c o u r t i n which t h e same may be pending.*             * *".
    Respondents argue that because the affidavit is not in the
words of the statute it is defective and inoperative. Respondents
contend the statute does not permit an attorney to execute a
disqualification affidavit stating that his client has informed
him that it has reason to believe, and does believe, that it
cannot have a fair and impartial hearing before a district judge.
Respondents cite State ex rel. Ross v. District Court, 150 Mont.
233, 433 P.2d 778, for the proposition that if the affidavit is
in the words of the statute, the judge is disqualified and without
jurisdiction to proceed further.    Respondents argue the converse
is equally true.
    We fail to follow respondents' argument. Here the affidavit
follows the words of the statute necessary to establish imputed
bias.   The attorney who executed the affidavit stated that his
client told him this.     Since the affidavit can be made by the
party personally or by his attorney under the statute (section
93-901(4),   R.C.M. 1947) and since the contents of the affidavit
cannot be inquired into further (State ex rel. Ross v. District
Court, supra), we find substantial compliance with the disquali-
fication statute.
    Neither do we consider meritorious respondents' argument
that the presiding judge cannot be disqualified from hearing a
motion for a new trial.    Whatever the merits of such restriction
may be, we find none in the statutes or the Montana Rules of
Civil Procedure. Respondents cite language from State ex rel.
Peery v. District Court, 145 Mont. 287, 312, 314, 400 P.2d 648,
in support of such restriction:
    "1t is only fair to say that we are concerned as
    to the interpretation of the words I action, motion
    or proceeding' adopted in the Carleton case, and in
    our search for truth we are not satisfied that it
    should be followed in view of the provisions of the
    Montana Rules of Civil Procedure. Recent cases before
    us on appeal, where new trials have been granted by the
    court on its own initiative, necessarily being within
    the ten-day period provided by Rule 5 ( )
                                          9 d , lead us to
    wonder if the doctrine should remain applicable on
    motions for new trial. If the court were not required
    to hurry in order to comply with the ten-day time limit,
   which of necessity precludes, or at the least limits,
   the time for preparation by counsel of briefs for the
   use of the court, and with these situations arising
   during busy court terms, court itself may not have
   any time for research or to hear counsel on argument
   during the ten-day period. If disqualification were
   not permitted upon motions for new trial, ample op-
   portunity would be afforded to the court to consider
   a motion for new trial in the regular manner, receiving
   briefs, hearing arguments, doing research and con-
   sidering the record, thus eliminating any hasty judgment
   which is now obligatory.
    "* * * we wish to warn counsel now that we are ex-
    tremely concerned about this interpretation being the
    correct one now to be followed in view of the adoption
    of the Rules, and we want it understood that nothing
    said in this opinion is to be interpreted as reaffirming
    the principle that disqualification may be exercised
    upon a motion for a new trial. I I
   We point out that this statement in Peery was     dictum as
that case did not involve a motion for a new trial. We also
note the final two concluding paragraphs of Peery:
   "As to the suggestion that this court take over the
   matter of disqualification by rule, or at least con-
   trol its use to prevent abuse thereof, in the present
   situation we do not feel it necessary. This is not
   to say that we do not have the power to do so, since
   it is entirely a procedural matter. But there are
   several factors that should be considered in view of
   the long history of this statute. It has always been
   called the Fair Trial Law, it was adopted at a time
   when it appeared to be most essential, in fact the
   Governor was petitioned by our citizens to call the
   legislature into extraordinary session for that purpose.
   It has served litigants well, though admittedly it has
   been and can continue to be abused. Our district judges
   and the justices of this court are elective officers,
   responsible to the electorate of our state. The citizens
   of Montana requested disqualification be enacted by the
   legislature because the courts themselves had not provided
   this- means of securing a fair trial. For these reasons
   at this time we decline to adopt any rules with respect
   thereto.
   "Adoption of rules of procedure can be petitioned for
   by the bench and bar of Montana, and it may be that they
   may desire to do so in this field. We have an Advisory
   Committee to consider all proposals for changes in rules
   or adoption of new ones. To them in the first instance
   should go any such requests."
         Peery was decided over eight years ago.   No recommenda-
tions on rule changes regarding disqualification of judges have
been proposed by the Advisory Committee.   For these reasons we
decline to adopt any new rules restricting the disqualification
of judges on hearing motions for new trials at this time.
      Accordingly, we hold t h a t Judge B l a i r was d i v e s t e d of
f u r t h e r j u r i s d i c t i o n a f t e r t h e a f f i d a v i t of d i s q u a l i f i c a t i o n was
f i l e d on October 11, 1973, i n c i v i l cause /I20055 i n t h e d i s t r i c t
c o u r t of G a l l a t i n County; t h a t h i s o r d e r s of October 19 and 26,
1973, a r e n u l l and void and hereby vacated; and t h a t p l a i n t i f f s '
motion t o s t r i k e t h e a f f i d a v i t of d i s q u a l i f i c a t i o n i s ordered
s t r i c k e n from t h e f i l e .       C i v i l cause /I20055 i s remanded t o t h e
d i s t r i c t c o u r t of G a l l a t i n County f o r t h e c a l l i n g i n of a new
judge by Judge L e s s l e y , and such f u r t h e r proceedings by t h e
judge i n j u r i s d i c t i o n a s may be r e q u i r e d .




                                                        Justice




[&--/+
     Chie      Justice




     Justices.   ----'-I--&
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