Relator, Peter Stefonick, defendant in the divorce action of Stefonick v. Stefonick, Cause No. 8572 in this court, seeks a writ to prohibit respondent district judge from hearing the plaintiff's motion therein for attorney's fees and costs on appeal.
The divorce suit was filed in the district court of Beaverhead county. The Hon. Lyman H. Bennett, district judge thereof, was disqualified by affidavit on behalf of the plaintiff. The Hon. R.E. McHugh, district judge of the Third Judicial District, was thereupon called in and assumed jurisdiction, but was disqualified by affidavit filed on behalf of the defendant, relator herein. The respondent, the Hon. C.E. Comer, a district judge of the Fourth Judicial District, was then called in to sit in the case and assumed jurisdiction in February, 1944, tried the cause in April, and in September, after briefs had been duly filed, rendered a decree in plaintiff's favor. Relator, on September 23, 1944, perfected his appeal.
In November, 1944, plaintiff moved for an order requiring relator to pay her costs and attorney's fees on appeal. The order to show cause was served upon relator on November 29th, and on the same day an affidavit of disqualification of Judge Comer was filed on relator's behalf under the fourth subdivision of Sec. 8868, Revised Codes, infra. Thereafter in December, in spite of his attempted disqualification of Judge Comer, the relator caused the bill of exceptions in the divorce action to be presented to Judge Comer for settlement and the latter made an order settling it. *Page 89
Subsequently Judge Comer set for hearing plaintiff's motion[1] for costs and attorney's fees on appeal, which had been continued from the time originally set by the order to show cause. The motion is one of which the district court necessarily retains jurisdiction despite the appeal. (Sec. 9739, Revised Codes); Bordeaux v. Bordeaux, 29 Mont. 478, 75 P. 359; State ex rel Tong v. District Court, 109 Mont. 418, 96 P.2d 918; State ex rel Enochs v. District Court, 113 Mont. 611, 139 P.2d 545.
Respondent judge's answer to the alternative writ issued herein expresses his personal indifference in the questions presented, but his belief that he has jurisdiction of the cause and that it is therefore his duty to proceed to hear the motion. It is urged on behalf of respondent that the attempted disqualification, which was the third in the action, came too late and that in any event it was waived by relator's presentation of the bill of exceptions to Judge Comer for settlement. On the other hand, relator contends that the disqualifying affidavit was filed in time, and that the presentation of the bill of exceptions constituted no waiver thereof because the affidavit of disqualification referred only to the motion for payment of costs and attorney's fees on appeal, and not to the action itself or to any other phase thereof. We shall discuss these questions in inverse order.
The affidavit of disqualification was filed under Sec. 8868, Revised Codes, which provides as follows:
"Any justice, judge, or justice of the peace must not sit or act as such in any action or proceeding:
"1. To which he is a party, or in which he is interested;
"2. When he is related to either party by consanguinity or affinity within the sixth degree, computed according to the rules of law;
"3. When he has been attorney or counsel for either party in the action or proceeding, or when he rendered or made the judgment, order, or decision appealed from;
"4. When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, *Page 90 he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge. Such affidavit may be made by any party to an action, motion, or proceeding, personally, or by his attorney or agent, and shall be filed with the clerk of the district court in which the same may be pending at least five days before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding (providing such party shall have had notice of the hearing of such action, motion, or proceeding for at least the period of five days and in case he shall not have had notice for such length of time, he shall file such affidavit immediately upon receiving such notice). Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding, but the provisions of this section do not apply to the arrangement of the calendar, the regulation of the order of business, the power of transferring the action or proceeding to some other court, nor to the power of calling in another district judge to sit and act in such action or proceeding, providing that no judge shall so arrange the calendar as to defeat the purposes of this section. No more than two judges can be disqualified for bias or prejudice in said action or proceeding, at the instance of the plaintiff, and no more than two at the instance of the defendant, in said action or proceeding, and this limitation shall apply however many parties or persons in interest may be plaintiffs or defendants in such action or proceeding. If there be more than one judge in any judicial district in which said affidavit is made and filed, upon the first disqualification of a judge in the cause, another judge, residing in the judicial district wherein the affidavit is made and filed, must be called in to preside in such action, motion, or proceeding; and upon the second or any subsequent disqualification of a judge in the cause, a district judge of another judicial district of the state must be called in to preside in such action, motion, or proceeding, or the action, motion, or proceeding transferred to a district judge of another judicial district *Page 91 of the state; when another judge has assumed jurisdiction of an action, motion, or proceeding, the clerk of the district court in which the same was pending, shall at once notify the parties or their attorneys of record in the same, either personally or by registered mail, of the name of the judge called in, or to whom such action, motion, or proceeding was transferred. Such second or subsequent affidavit of disqualification shall be filed with the clerk of the district court in which such action, motion, or proceeding may be pending within three days after the party or his attorney of record, filing such affidavit, has received notice as to the judge assuming jurisdiction of such action, motion, or proceeding."
Until 1903 the statute included only the first three subdivisions, which relate to actual disqualifications, but in that year subdivision 4 was added to provide disqualification for what has been termed "imputed bias or prejudice." Acts 1903, 2d Ex. Sess., c. 3. As originally enacted it allowed each party five such disqualifications and required only that the affidavit be filed "at any time before the day appointed or fixed for the hearing or trial." There have been two amendments of the subdivision, the chief effects of which were (1) to reduce the number of disqualifications from five to two for each party, (2) to require that the affidavits be filed "at least five days before the day appointed or fixed for the hearing or trial," (3) to provide for notice to the parties, when another judge has assumed jurisdiction, and (4) to require that "such second or subsequent affidavit of disqualification shall be filed with the clerk * * * within three days after" the receipt of notice "as to the judge assuming jurisdiction."
The first question here is whether the disqualifying[2] affidavit, if effective, disqualified Judge Comer from acting or sitting in only the motion for attorney's fees and costs on appeal, so that he could still act in other matters connected with the action, such as the settling of the bill of exceptions. Relator contends that the disqualifying affidavit had that effect because it stated only that affiant believed that relator could not *Page 92 have "a fair and impartial hearing or trial of said order to show cause or the said application for order to show cause by reason of bias and prejudice" of the judge. It is not clear how a judge's bias and prejudice could be such as to deny the litigant a fair and impartial hearing of one step in an action without affecting other steps also. However, it is unnecessary to consider that question, since the statute does not make it possible to disqualify judges in particular portions of a cause or proceeding, as distinguished from the whole thereof, so as to parcel out the jurisdiction concurrently among two or more trial judges.
Sec. 8868 does not permit of a construction which could result in so chaotic a situation. It provides that the judge "must not sit or act as such in any action or proceeding" in which the affidavit is filed as provided by subsection 4. That subsection provides moreover that upon the filing of an affidavit the judge shall have only the powers of arranging the calendar, regulating the order of business and "transferring the action or proceeding to some other court" or "calling in another district judge to sit and act in such action or proceeding." It is clear that the disqualification goes to the entire action or proceeding.
The first reference to "motion" in the section was the[3] procedural provision in subsection 4 that the affidavit may be filed "at any time before the day appointed or fixed for the hearing or trial of any such action, motion or proceeding." The obvious purpose of the clause was to prevent affidavits of disqualification from being filed on the day of a hearing and perhaps at the actual hearing itself; in other words, to prevent postponements and delays and not "to add delays, nor to secure postponements which are not deserved." State ex rel Jacobs v. District Court, 48 Mont. 410, 138 P. 1091, 1093. But if the word "motion" had not been inserted that purpose would have been largely defeated, and if the requirement were only that the affidavit of disqualification might be filed at any time before the hearing or trial of the action or proceeding itself, such affidavits could be filed so as to delay the hearing of all preliminary *Page 93 matters, of which there are ordinarily a number in each action or proceeding. Thus only a small part of the desired result would have been accomplished and judges, parties and counsel might have been harassed and justice delayed at every step except the actual trial of the action or proceeding. This was especially true when, as originally enacted, the subsection granted each party five such disqualifications. That in the opinion of the legislature the provisions still led to too much delay is evidence by the amendment in 1909, Laws 1909, c. 114, to reduce the permitted disqualifications to two for each party, and by the further amendment in 1927, Laws 1927, c 93, to require the affidavits to be filed at least five days before the day set for hearing, and to require that notices be given of another judge's assumption of jurisdiction and that subsequent disqualifying affidavits must be filed within three days after notice thereof.
There can be no doubt that the legislative purpose in inserting the word "motion" in the first procedural clause was to make the provision fully, rather than fractionally, effective; and having required that the affidavit be filed before the day set for hearing or trial of action, motion or proceeding, it was only natural to add that upon such filing the judge should be "without authority to act further in the action, motion, or proceeding." But that the effect of the affidavit of disqualifition was not limited to the motion alone is shown by the fact that no words were used to effect such limitation, that the word "motion" was not added to the substantive provision at the beginning of the section, upon which subdivision 4 depends, that the judge must not thereafter sit or act in the action or proceeding, and that the only exceptions to that absolute disqualification were of the powers to arrange the calendar, to regulate the order of business, and to transfer the action or proceeding to some other court or to call in another judge to sit in the action or proceeding.
When the procedural provisions were amended in 1909 to provide that if there is another judge of the same district he *Page 94 must be called before a judge is brought in from another district it was perhaps only natural to follow the wording of the first procedural clause and mention motions as well as actions and proceedings. The same is true as to the further procedural amendment of 1927 requiring notice to be given when another judge has been called in, and requiring any subsequent disqualifying affidavit to be filed within three days after notice thereof. But upon neither amendment of the procedural provisions was there any limitation of the above substantive provision at the beginning of the section, terminating the judge's authority to sit and act in the action or proceeding, or of the reservation of the authority to transfer the entire action or proceeding to another court or to call in another judge to sit in the entire action or proceeding.
The fact that the disqualification necessarily goes to the entire action or proceeding has been recognized by this court from the beginning. Within sixteen months after the subsection was added as amendment to Sec. 180, Code of Civil Procedure 1895, this court said in State ex rel Nissler v. Donlan, 32 Mont. 256,80 P. 244, 247, speaking through Mr. Chief Justice Brantly, "it will be noticed that amended Sec. 180 contemplates that, once a judge has been found to be disqualified in an action or proceeding, he must not thereafter sit in it at any stage of it."
Again, less than two years after subsection 4 was enacted this court recognized that the purpose was not to permit the disqualification of judges with reference to motions only, but to make more effective the disqualification for the entire action or proceeding. In State ex rel. Carleton v. District Court, 33 Mont. 138,82 P. 789, 791, 8 Ann. Cas. 752, this court said:
"The word `motion' seems to have been inserted purposely, to indicate that it was the intention of the legislature to allow the litigant to work the disqualification at any time before the time for trial on the merits, and, further, at any time before a hearing on a motion in the progress of the case which involves a final adjudication of the rights of the parties upon that particular *Page 95 branch of the case. To illustrate: That it might be filed at any time before the hearing of a demurrer or motion to strike, or motion for judgment on the pleadings, or trial on the merits, or a hearing on motion for a new trial, or a motion to set aside a default, or the like, but not in any of these instances on the day of the hearing or during its progress. It would seem to follow necessarily that motions made during the progress of any of these hearings are therefore excluded, because a hearing upon the merits, or upon a motion, includes all the motions or other steps which may necessarily be made in order to present the questions involving the rights of the parties during the progress of such hearing. This construction must be given to the fourth subdivision of Sec. 180, or else the term `motion,' as used therein, has no significance whatever. * * *
"While the disqualification of imputed bias and prejudice may not be invoked during a hearing, because the limitations embodied in the amendment to Sec. 180 render it impossible, yet the disqualification may be worked, as specifically provided, at any time before the day of hearing upon any one of the separate steps to be taken in the progress of the case. This would include, of course, a motion for a new trial."
It has repeatedly been held that the effect of the affidavit, if filed in time, is to deprive the judge of any further authority to act in the action or proceeding except as expressly provided by Sec. 8868, a number of those decisions coming after the amendments of the procedural provisions of the section (State ex rel. Perry v. District Court, 83 Mont. 377, 272 P. 553; Russell v. Sunburst Refining Company, 83 Mont. 452, 272 P. 998; Pincus v. Davis, 95 Mont. 375, 26 P.2d 986). Indeed no other interpretation of the section is possible. It is immaterial, therefore, that the affidavit of disqualification mentioned only the motion. If it was effective at all, Judge Comer was thereby disqualified in the entire action and in all matters connected therewith.
Respondent's argument that any effect of the affidavit of[4] disqualification was waived by relator's presentation of *Page 96 the bill of exceptions to Judge Comer for settlement and the latter's act in settling it, cannot be sustained. It is not necessary to consider whether such waiver of a prior disqualification is ever possible, for the presentation of the bill of exceptions for settlement by an unauthorized person is obviously a nullity and can have no effect for any purpose. Appeals to this court are subject to "such regulations and limitations as may be prescribed by law." Montana Constitution,[5] Art. VIII, Sec. 2. The legislature has provided that a judge may settle and sign a bill of exceptions after he ceases to become a judge, but that if he "dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the supreme court may, by its order or rules, direct." Sec. 9393, Revised Codes. In short, it is only when a judge ceases to become a judge otherwise than by death or removal from office that he can still settle the bill of exceptions in a cause tried by him, and not when for some reason he continues to be a judge but is disqualified to act. As this court pointed out in State ex rel. Carleton v. District Court, supra, a judge may, during the progress of the litigation, become disqualified under the various provisions of Sec. 8868.
This court has by rule (Rule VII) provided for the settlement of bills of exceptions "in case any judge of the district court shall fail or refuse, upon proper presentation or request, to allow, settle or certify an exception or bill of exceptions or statement of the case." But it has not heretofore expressly provided by rule for such settlement in the other events mentioned, and in this instance no application was made to this court for an order providing for the mode of settlement of the bill of exceptions, as provided by Sec. 9393. It follows that if the attempted disqualification of Judge Comer was effective, the presentation of the bill of exceptions to him for settlement, and its settlement by him, were nullities. They cannot, therefore, *Page 97 have revested Judge Comer with jurisdiction or have constituted a waiver of his disqualification.
It is suggested that the provision of Sec. 9393 for settlement[6] of bills of exceptions if the judge "becomes disqualified" does not refer to disqualifications under subdivision 4 of Sec. 8868 because that subdivision was not enacted until later. But Sec. 8868, with the other three subdivisions relating to the disqualification of judges, had been adopted in 1871, twenty-four years prior to the enactment of Sec. 9393, and the latter necessarily includes any disqualifications then or thereafter provided by law. It is not possible to limit its application to certain kinds of disqualification, for the legislature has not limited it in any way. Nor is it possible to interpret "disqualified" as meaning physically incapacitated, for, as applied to judges, the word "disqualified" has acquired a definite and technical meaning and must according to reason and statute (Sec. 15, Revised Codes), be construed accordingly. Certainly the various forms of the verb "disqualify" as applied to judges should not be construed otherwise than as this ocurt has already construed them in the above-cited decisions and in dozens of others.
But if their meaning in Sec. 9393 could be more narrowly construed, there is still no authority for the judge, however his disqualification arose, to settle a bill of exceptions in an action in which Sec. 8868 declares that he has no further authority to act.
The final question is whether the affidavit was filed in time. As noted above, Sec. 8868 provides that when another judge has assumed jurisdiction the clerk shall give the parties notice "of the name of the judge called in" and that "such second or subsequent affidavit of disqualification shall be filed with the clerk * * * within three days" after receipt of notice. This is the third affidavit of disqualification in the action. It was not filed within three days after relator's receipt of notice that Judge Comer had been called in and had assumed jurisdiction; for the judge had been called in and had assumed jurisdiction some nine months before, had presided at the trial, and had *Page 98 rendered the decree. Relator contends, however, that as the affidavit of disqualification was filed on the day on which the order to show cause was served upon him, it was within three days after receipt of notice that Judge Comer had assumed "jurisdiction of the motion." But Judge Comer was not "called in" to hear the motion. He was called in and assumed jurisdiction long before that time to hear the entire action, including any and all motions connected therewith. The issuance, in November, of the order to show cause was not a notice of his assumption of jurisdiction, but of a hearing to be held upon a matter of which he already had jurisdiction by virtue of what had been done during the preceding March.
Relator relies upon the statement in State ex rel. Carleton v. District Court, supra, that the disqualification by affidavit may be worked, as specifically provided, before any one of the separate steps to be taken in the progress of the case, including a motion made after final judgment. The statement was true when made in 1905, and it is still true; but in 1927 the statute was amended so as specifically to provide that the second or subsequent affidavit of disqualification must be filed within three days after notice as to the judge assuming jurisdiction of the action, motion or proceeding. It is not correct to speak of the judge's assuming jurisdiction of a motion since the statute provides that he is called in "to sit and act in such action or proceeding," whether or not a motion is the first matter he is called upon to hear; and the inclusion of the word "motion" in this procedural clause cannot alter that fact. As this court said in the same case, in the statement quoted below, a change of judge upon a motion transfers the action, just as a change of judge or a change of place of trial upon the trial or hearing of the action on the merits transfers the action. In either case it is the action or proceeding of which the one judge loses and the other assumes jurisdiction.
Relator relies also upon the statement in State ex rel.[7] Carleton v. District Court, supra, that "a motion for a new trial is pro hac vice a proceeding independent of the trial of the case *Page 99 on the merits," and suggests therefore that the attempted disqualification is not the third but only the first. But the court went on to say: "Of course, the latter part of Sec. 180, limiting the number of disqualifications upon the ground of bias and prejudice, must be construed to mean the number of disqualifications that may be had during the controversy on the ground of bias and prejudice at any stage of it, because a change of place of trial or a change of judge upon a motion transfers the action just the same as a change of judge or a change of a place of trial upon the trial or hearing of the cause or proceeding on the merits transfers the cause, and no matter at what stage of it, the transfer is made, the particular transfer must be counted as one of the five permitted to each party by the statute." Since the disqualification upon a motion for a new trial is to be considered as one of those granted to the parties for the entire action as a whole, the same is necessarily true of the disqualification upon the motion for costs and attorney's fees on appeal. It must be true also that the requirement that "such second or subsequent affidavit of disqualification" must be filed within three days after receipt of notice of the new judge's assumption of jurisdiction, likewise refers to the second or subsequent affidavit filed in the entire proceeding, for the rights given the parties to file disqualifying affidavits are not granted or limited with reference to separate motions, but only with reference to the action or proceeding as a whole.
It is interesting, however, to consider how, if the motion were an entirely separate matter from the cause on its merits so that separate disqualifications could apply to it, Judge Comer ever acquired jurisdiction over it. The motion, like the cause itself, was filed in the court of the Fifth Judicial District for Beaverhead county, over which Judge Bennett, and not Judge Comer, presides. How has the latter acquired jurisdiction of the motion, unless through the order by Judge Bennett calling him to sit and act in the divorce action itself? The answer, of course, is as shown in the statement last above quoted from the Carleton *Page 100 decision. The effect of the disqualification of one judge and the calling in of the new judge and the assumption of jurisdiction by him is to transfer the entire action, and everything connected therewith, from the one judge to the other. If, however, Judge Comer had just been called in and had first assumed jurisdiction by the issuance of the order to show cause upon the motion for attorney's fees and costs on appeal, the disqualifying affidavit would have been in time and relator would have been entitled to the writ sought.
As noted above, Sec. 8868, as amended by the addition in 1903[8, 9] of subdivision 4, provides that a judge "must not sit or act as such in any action or proceeding * * * when either party makes and files an affidavit as hereinafter provided," that he believes he cannot have a fair and impartial hearing by reason of the judge's bias or prejudice. Throughout the period of more than forty years since the addition of that subdivision, this court has consistently, and necessarily, held that the right thereby for the first time conferred upon litigants by the legislature is purely statutory and is waived if not exercised as therein provided. There is no necessity to cite the long succession of decisions to that effect. One such decision is State ex rel. Eden v. District Court, 109 Mont. 263,95 P.2d 447. Since in this case the affidavit was not filed within the time set by the statute, it was of no effect. The writ prayed for is therefore denied.
Associate Justices Adair and Cheadle concur.