STATE EX REL AMSTERDAM L B R v DI
Annotate this Case
Download PDF
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 F DISTRICT FOR THE STATE O MONTANA I N AND 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 corporation, 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 On September 2 1 , Judge B l a i r entered an order (1) voiding 18. Judge Shanstrom's nunc pro tunc o r d e r , (2) voiding Judge Shanstrom'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 conclusions. 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 " Judge p r e s i d i n g . Judge 1' 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 siderable proportions. procedural tangle of con- 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 litigation. 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 remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution 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 Constitution 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 proceedings 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 disqualification 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 "County of G a l l a t i n 1 : ) ss. "JAMES A. McLEAN, being f i r s t duly sworn, deposes 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 Defendant, 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 Defendant 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 29, 1975." " ( N o t a r i a l Seal) 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 disqualification 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 9 d , lead us to the ten-day period provided by Rule 5 ( ) 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 opportunity would be afforded to the court to consider a motion for new trial in the regular manner, receiving briefs, hearing arguments, doing research and considering the record, thus eliminating any hasty judgment which is now obligatory. "* * * we wish to warn counsel now that we are extremely 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 control 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 ----'-I--& - Justices.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
