State Ex Rel. Kennedy v. District Court of Fifth Judicial District

On Motion for Rehearing On motion for rehearing relator asserts that the district court may not make the rule that all jury actions shall be placed for consideration upon a pre-trial calendar and thus "exercise in advance the discretion granted to him under the provisions of section 9327, Revised Codes of Montana 1935, as amended by Chapter 61 of the Laws of 1939, in relation to the necessity and/or propriety of requiring a pre-trial conference, in any event, and particularly by such a rule exercise in advance the discretion vested in Judge Lynch, the presiding judge called in and who had assumed jurisdiction before issue joined."

The language of the statute which we have quoted is a negative answer to this contention. "The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions." Such is the court's power and authority by the statute expressly declared. If the court has the power to establish by rule a pre-trial calendar, as the statute plainly reads, the rule so established becomes a rule of the court. It is not a rule of the judge. Many years ago this court said, "* * * when the power [to make a rule] has been exercised, and a rule adopted, courts, as well as members of the bar, should respect the same, and regulate their conduct in conformity therewith." Martin v. De Loge, 15 Mont. 343, 39 P. 312.

The rule is not in conflict with section 8868, Revised Codes[7] of 1935, which leaves to the judge of the court, after his disqualification, the power of arrangement of the calendar and regulation of the order of business. The later statute, section 9327, Revised Codes of 1935, as amended by Chapter 61, Laws of 1939, expressly gives the court authority to establish by rule of the court a pre-trial calendar and to extend it to all actions or confine it, as does the rule here, to jury actions. *Page 334 As to these matters the provisions of the two statutes are in pari materia and both stand. If there be conflict, which seems not the case, the later expression of the law-makers prevails as law.

If the rule is one within the power of the court to establish,[8] as the statute provides, it, of course, is not revoked when in a particular case the judge of the court is disqualified to act in such case. The rule still stands.

By permission of the court a number of leading members of the bar of this court filed a brief as amici curiae in behalf of relator's petition for rehearing. They state that "the glaring omission from the rule of the court is that there is no provision in the rule that within any definite time after the pre-trial conference, a jury will be called to try cases." Severe strictures, approaching philippic form, upon the conduct of the respondent judge in other cases and upon his attitude generally in allegedly delaying the setting for trial of jury cases are contained in their brief. These matters are not before us. The only questions for our decision are, whether the statute gives the court power to make a rule establishing a pre-trial calendar upon which all jury cases shall be placed, and if the statute does so provide, is the rule in fair compliance with the provision of the statute. This assumes that the statute is constitutional, and the assumption is correct. There is no contention that it violates any provision of either the state or federal organic law. As stated, the amendment of 1939, Chapter 61, is merely the enactment by the legislature as a statute, of Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, promulgated by the Supreme Court of the United States for uniform regulation of the practice and procedure in the United States courts.

Amici curiae say that "The fair truth about pre-trial[9] conferences is that a busy-body committee of the Bar, to exhibit their empty learning, got the legislature to import this exotic plant from another soil, and it cannot grow in Montana." As to the paternity of the statute we know not. Amici *Page 335 curiae attribute fatherhood to the bar. As to its adaptability to our soil, the soil in Montana is varied; the plant might flourish in one district and wither in another. We find it to be the law. With its wisdom, or lack thereof, the court has naught to say. So many times we have repeated, "With the wisdom of statutes we have no concern; such is for the law-makers," that to reiterate seems hardly necessary, and to cite the cases merely supererogatory.

In view of the low opinion which amici curiae express as to the wisdom of the law, however, it seems fair to quote from the comment as to the working of the rule as used in federal courts, found in Volume 3, page 695 of Federal Rules Service, in which is cited the federal case of Boysell Co. v. Colonial Coverlet Co., D.C., 29 F. Supp. 122. There it is said: "Experience has shown that, while pre-trial procedure generally proves popular with attorneys after they have once become familiar with it, it needs a strong push from the judge to get over the initial bump caused by our acquired habits of thinking of the law as a sort of game in which each party holds his cards under the table."

It appears that in the respondent district court the pre-trial procedure is receiving from the judge the "strong push" that the commentator says it needs "to get over the initial bump." In view of the strenuous resistance to this "push" by some of the bar of respondent court, as evidenced by the statements in brief of relator and amici curiae, the case of the alleged statute of Arizona, quoted in the brief of amici curiae, but not cited, that "When two trains come to an intersection of railways, both shall stop, and neither shall cross until after the other one has passed the intersection," may be more applicable to the effort to "get over the initial bump" than to the point to which it was applied in the brief.

The objection of amici curiae that the rule of respondent[10] court does not specifically fix a time within which a case shall be set for trial after the pre-trial conference therein required is not valid. Its infirmity is obvious. *Page 336

As Justice Cardozo held in Landis v. North American Co.,299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153, the power is inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants, and again in American Life Ins. Co. v. Stewart, 300 U.S. 203, 215, 57 S.Ct. 377, 380, 81 L.Ed. 605, 111 A.L.R. 1268, "A court has control over its own docket." This does not mean an arbitrary control. The control must be in the exercise of a sound discretion. In Montana it shall not be violative of the Constitution, Art. III, sec. 6, nor of statutes such as section 8902, Revised Codes of 1935; or Chapter 277, Laws of 1947.

Many courts have a rule to the effect that a party litigant desiring to have his case set for trial must file a note of issue, or it will not be set at the call of the calendar. Where such rule is established, like the rule requiring a pre-trial conference, it is a prerequisite to the setting of the case for trial, but the control of the calendar is still, of necessity, in the judge of the court, to be exercised in his sound discretion, an abuse of which is subject to correction by appropriate process and procedure. The failure of relator to comply with the rule of the court, so far as here shown, appears to be the reason the case has not been set for trial. It is not essential to the validity of the rule that a definite time after pre-trial conference be stated therein for setting a case for trial. In fact such rigid time designation would appear to be as much out of place in the rule under consideration, as it clearly would be as a part of the rule requiring the filing of a note of issue as a prerequisite to setting a case for trial.

The petition for rehearing is denied.

Mr. Chief Justice Adair and Associate Justices Choate and Metcalf concur.