I dissent. I am not able to agree with the result reached by the majority. I agree that under the practice in Montana a judge who is disqualified in one step of an action is without jurisdiction to act further in the action except as the statute permits. There are but two questions in the case. First, was the affidavit disqualifying Judge Comer timely? And, second, how is the question affected by the fact that Judge Comer signed the bill of exceptions after the filing of the affidavit of disqualification? *Page 101
The case of State ex rel. Carleton v. District Court, 33 Mont. 138,82 P. 789, 8 Ann. Cas. 752, made it clear that a party to an action, motion or proceeding may disqualify a judge for imputed bias at any one of the separate steps in the progress of a case. That case was followed in the later case of State ex rel. Working v. District Court, 50 Mont. 435, 147 P. 614.
The amendments made to the statute, which is now Sec. 8868, since the decision of the Carleton case do not change the statute in respect to the point that a disqualifying affidavit may be filed in any "action, motion, or proceeding" and upon any one of the separate steps therein. The statute as it now stands provides in part that, "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."
The above-quoted language was added to the statute since the decision in the Carleton case but there was no change in the statute so far as it gave the right to disqualify a judge in any "action, motion, or proceeding." It must thus be assumed that the legislature was satisfied with the interpretation in the Carleton case to the effect that the right to disqualify goes to each separate step in an action or proceeding. The right to disqualify a judge is a substantial right. State ex rel. Carroll v. District Court, 50 Mont. 506, 148 P. 312. The statutes should receive a liberal construction with a view to effect their objects, Sec. 4, Revised Codes. To construe the statute as do the majority, so as to cut off the right of disqualification for some subsequent step in the action before it is known that such a step will *Page 102 arise in the case and before the party learns of the bias of the judge is not a liberal interpretation. Gugler v. Ind. Acc. Fund,157 P.2d 89. I think liberally construed it must be said that the affidavit filed on the very day when relator was served with a copy of the application and order, and which in this case was more than five days before the same was set for hearing, was timely.
Sec. 8868 must be read in conjunction with Sec. 9098, which deals with the question of changing the place of trial and which before amendment was considered in the Carleton case as Sec. 615. That section provides for a change of place of trial when a judge is disqualified. So far as material it provides: "The court or judge must, on motion, change the place of trial in the following cases: * * * 4. When, from any cause, the judge is disqualified from acting; but * * * if any qualified district judge shall be called in and shall, within thirty days after the motion is made, appear and assume jurisdiction of the cause and of all matters and proceedings therein, no change of the place of trial shall be made. If such judge shall so appear he shall be vested with, and shall exercise, in said cause, all the authority of the judge of the district in which said action or proceeding may be pending." In legal effect when a judge is called in to assume jurisdiction of a cause, without changing the place of trial, the judge so called in steps into the shoes of the local judge. He has no greater rights than the local judge, nor does he acquire any more permanent status in the case than the local judge. If either party has not exhausted his right to disqualify two judges, he may disqualify such judge, on some subsequent and independent motion arising after the judge has assumed and exercised jurisdiction over some other phase of the action. Had the action been transferred to Missoula instead of Judge Comer going from Missoula to Dillon to try the case, I think a party could use the right of disqualification after trial and on a subsequent motion as here, and I think the same conclusion follows where the case is not transferred but a judge is called in. The affidavit was timely filed as against the second or subsequent judge *Page 103 when it was filed at least five days before the day appointed or fixed for the hearing of such separate motion or proceeding arising after the trial of the action on its merits, as here. There is nothing in the case of State ex rel. Eden v. District Court, 109 Mont. 263, 95 P.2d 447, that militates against this view. That case did not involve a separate step or proceeding arising after trial of the action on its merits.
I do not find any language in the present statute which can be held to evince a legislative purpose to change the rule of the Carleton case. By that decision a litigant could proceed to trial before the judge of the court before whom the case was filed without waiving the right to disqualify him for imputed bias at some subsequent step in the case. There is no reason for any different rule and I do not find any probihition in the statute preventing the doing of the same thing as to the second or subsequent judge in the case.
Each litigant however is limited to the right to disqualify but two judges throughout an entire action or proceeding. This was squarely held in the Carleton case, except at that time each party had the right to disqualify five judges in a case. Judge Comer, while the third judge in the case, was only the second judge attempted to be disqualified by relator.
Did the fact that relator asked Judge Comer to settle the bill of exceptions after the filing of the affidavit affect the question, and was the act of Judge Comer in signing the bill of exceptions valid? I think relator was justified in asking, and in fact compelled to ask, Judge Comer to sign the bill of exceptions and that his act in doing so was valid.
Under the statute relator was obliged to present the proposed bill for settlement "to the judge who tried or heard the case." Sec. 9390, Revised Codes. Judge Comer, it should be remembered, is the judge who tried and heard the case on its merits. "When, as here, there has been a change of judge between the time the motion for a new trial was made and the time when a hearing was had on the same, the judge who heard the motion is the only one who is in position to certify what was before *Page 104 him and what he considered as the basis of his ruling on the motion." Russell v. Sunburst Ref. Co., 83 Mont. 452,272 P. 998, 1003. And see to the same effect Pincus v. Davis, 95 Mont. 375,26 P.2d 986. So in this case Judge Comer is the only judge who is in position to certify what took place at the trial and what was before him when he rendered judgment. The statute permits a judge to settle and sign a bill of exceptions after he ceases to be such judge. Sec. 9393, Revised Codes. The act of settling a bill of exceptions does not involve the exercise of judicial discretion, or a person who has ceased to be a judge could not be authorized to settle it. And certainly the act involved no judicial discretion where, as here, the only thing the judge had to do was to sign the bill as sent to him and where no amendments to the proposed bill were offered which required consideration.
Because of the foregoing, the act of settling the bill of exceptions does not conflict with that part of Sec. 8868 reading, "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."
Sec. 9393 also provides: "If such judge or judicial officer, before the bill of exceptions is settled, 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." The words "becomes disqualified" did not contemplate disqualification for imputed bias because when Sec. 9393 was passed the right to disqualify a judge for imputed bias did not exist in Montana. Also I think those words were used in their natural and ordinary sense and that they have reference to some physical or mental disability incapacitating the judge from acting and that they have no reference to a disqualification resulting from the filing of an affidavit imputing bias and prejudice which has the effect merely of depriving the judge of jurisdiction over a particular matter. This is made *Page 105 apparent by consideration of the entire section which permits a judge to settle the bill after he has ceased to be judge, which indicates that a loss of jurisdiction is not the kind of disqualification contemplated by section 9393 as making it necessary to resort to this court for direction as to the mode of settling the bill of exceptions. The case of In re Thompson's Estate, 72 Utah 17, 269 P. 103, 128, considered the question as to what was meant by a constitutional provision authorizing the judge of the supreme court to call in a district judge when a justice shall be disqualified. It said: "We think the term is used in its natural and ordinary sense, and thus includes illness or a physical disability or other condition incapacitating a member of the court." See, also, Thomlinson Riley Co. v. Feinberg Kahn, 220 Ill. App. 442.
I think that a judge who has been disqualified by imputed bias from hearing a separate motion arising subsequent to the trial of a case on its merits has jurisdiction and power to settle the bill of exceptions, and that when asked to do so by a party who has theretofore filed an affidavit of disqualification against him, such party has not waived his right to stand upon his disqualifying affidavit.
I think the writ applied for should issue.