IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 14648
TOWN PUMP, INC., and BOZEMAN TOWN
PUMP, INC., and WALLACE DITEMAN, INC.,
a Montana Corporation, W-D CONSTRUCTION,
a/k/a Diteman Construction, and
Wallace Diteman, Individually,
Relators,
CLERK OF
S U P R E M Ec o U ~ ~
VS. OF MO$;TANA
THE DISTRICT COURT OF THE EIGHTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
GALLATIN, AND THE HON. JACK D. SHANSTROM,
JUDGE THEREOF,
Respondents.
The above named cause is amended as follows:
"When Judge Shanstrom assumed jurisdiction
in November 1976, relators and all other
parties then in the action under section
93-401, now section 3-10-1 01 UCA had but
three days, upon receiving notice, to file
a disqualifying affidavit."
Should read:
"When Judge Shanstrom assumed jurisdiction
in November 1976, relators and all other
parties then in the action under section
93-901 had but three days, upon receiving
notice, to file a disqualifying affidavit."
DATED this &qL
day of April, 1979.
Chief Justice
No. 14648
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
TOWN PUMP, INC., and BOZEMAN TOWN
PUMP, INC., and WALLACE DITEMAN, INC.,
a Montana Corporation, W-D Construction,
a/k/a DITEMAN CONSTRUCTION, and WALLACE
DITEMAN, individually,
Relators,
THE DISTRICTCOURT OF THE EIGHTEENTH JUDICIAL
DISTRICT OF THE STATE OF MONTANA, IN AND FOR
THE COUNTY OF GALLATIN, AND THE HON. JACK D.
SHANSTROM, JUDGE THEREOF,
Respondents.
ORIGINAL PROCEEDING:
Counsel of Record:
For Relators :
Landoe, Brown, Planalp, Kommers & Lineberger,
Bozeman, Montana
Bolinger and Wellcome, Bozeman, Montana
For Respondents:
Goetz and Madden, Bozeman, Montana
Submitted on briefs: January 19, 1979
Decided :iE$ A 4 1979
@f9
Filed: :EF ,LI
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 14648
TOWN PUMP, INC. and BOZEMAN TOWN
PUMP, INC., and WALLACE DITEMAN,
INC., a Montana Corporation,
W-D CONSTRUCTION, a/k/a DITEMAN
CONSTRUCTION, and WALLACE DITEMAN,
individually,
Relators,
VS.
THE DISTRICT COURT OF THE EIGHTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
GALLATIN, and THE HONORABLE JACK D.
SHANSTROM, Judge thereof,
Respondents.
ORDER AND OPINION
Mr. Justice John C. Sheehy delivered the Opinion of
the Court.
Application by relators for a writ of supervisory
control. We accepted jurisdiction of the application,
ordered briefs to be filed and now decide the issues without
oral argument.
After fully considering the application, the supporting
and opposing briefs, the applicable law and the facts in
this case, we determine that the application for writ of
supervisory control should be denied for the following
reasons :
This application relates to cause no. 22478, now pending
in the Eighteenth Judicial District, Gallatin County,
entitled Stanley W. Ferguson et al. v. Town Pump, Inc.,
Bozeman Town Pump, Inc. v. Wallace Diteman, Inc., a/k/a
Diteman Construction and Wallace Diteman. We had that cause
before us on appeal, and entered a decision on June 13,
1978 ( Mont . , 580 P.2d 915, 35 St-Rep. 824).
The original complaint charged negligent maintenance
against defendants, and damages arising out of gasoline
contamination of water wells. During the litigation, the
Hon. W. W. Lessley was disqualified by affidavit of
plaintiffs. The Hon. Edward Dussault thereupon assumed
jurisdiction but he was subsequently disqualified by
plaintiffs. The Hon. Jack D. Shanstrom assumed jurisdiction
in November 1976. A jury trial was held before Judge Shanstrom
beginning December 6, 1976 as a result of which the jury
returned a verdict totaling $66,656.00, for which judgment
was entered in favor of the plaintiffs. Plaintiffs sub-
sequently moved the court either to substitute a higher damage
award or to grant a new trial on the issue of damages. The
District Court granted the motion for a new trial on the
damages issue.
Thereafter, defendants Town Pump and Diteman appealed
from the order granting a new trial. Town Pump also appealed
from the dismissal of its indemnification claim against
Diteman. Plaintiffs cross-appealed from the denial of
their motion to increase mathematically the damage award,
and also from the denial of their offered instructions
regarding punitive damages.
In our decision of June 13, 1978, this Court affirmed
the trial court's order granting a new trial on the damages
issue; reversed the trial court's dismissal of Town Pump
indemnification claim against Diteman, and ordered a new
trial on that issue; and affirmed the trial court's denial
of plaintiffs offered instructions regarding punitive damages.
By remittitur dated June 26, 1978, this Court remanded the
cause to the trial court for a new trial in accordance with
our decision.
On June 22, 1978, however, defendants filed a motion
for substitution of a new judge. Thereafter, by order
filed November 24, 1978, Judge Shanstrom denied defendants
motion for substitution of judge and set a jury trial on
the damages issue for January 8, 1979.
At a pretrial conference in January 1979, defendants
again raised the contention that Judge Shanstrom was without
jurisdiction by virtue of the filing of the motion for
substitution. Plaintiffs resisted the substitution of
judge. Thereupon Judge Shanstrom advised counsel for both
parties that he would continue the date of trial on the
damages issue in order to give defendants time to apply to
this Court for a writ of supervisory control.
This decision turns on the determination by us of two
issues:
(1) Whether section 93-901, R.C.M. 1947, or our o~rder
for Disqualification and Substitution of Judges (34 St.Rep.
26, Dated December 29, 1976) applies.
(2) If section 93-901 applies, whether defendants
complied with its provisions in seeking to disqualify Judge
Shanstrom.
Our order for Disqualification and Substitution of
Judges was entered after a study had been undertaken with
reference to that subject. The court saw a need to establish
an orderly system of disqualification in both civil and
criminal cases, and by the terms of that order, it supersedes,
and is to be used to the exclusion of section 93-901, and
other sections set forth in the rule relating to disqualification
and substitution of judges. In paragraph 7b, we provided
in that order that if a new trial had been ordered by the
Supreme Court, within ten days after notice of receipt of
the remittitur, a party to an action could file a motion for
the substitution of a judge. However, we also provided in
the order that:
-3-
"This rule shall be effective on March 1,
1977, it to apply to all actions filed
on or after that date."
The complaint in cause no. 22478, in the Eighteenth
Judicial District, Gallatin County, was filed on September
22, 1975.
It would seem clear therefore from the language of
our order of December 26, 1978, that it would not apply
to this cause, since the effective date of the order is
subsequent to the date when the complaint was filed in the
subject case. However, the relators claim that a remittitur
for a new trial from the Supreme Court in effect means that
the action has commenced anew, and that the order for
Disqualification and Substitution of Judges should be given
effect instead of section 93-901. Relators rely on section
93-5601, R.C.M. 1947, now section 25-11-101 MCA, which
provides that "a new trial is a reexamination of an issue
of fact in the same court after a trial and decision by a
jury or court . . ." and upon several cases construing
that section, principally including Waite v. Waite (19641,
143 Mont. 248, 389 P.2d 181. However, relators are confusing
the "reexamination" of an issue of fact with the term
"commencement of action". Our order applies to "all actions
filed" on or after March 1, 1977. The grant of a new trial
by a District Court or by this Court is not the "filing of
a new action". Rather the action, although commenced fresh
or anew, is nevertheless limited to the original pleadings.
This Court said so in Waite, supra:
.
". . Applying this definition to
subject matter of section 93-5601,
we believe the legislative intent is
that when a new trial is granted, the
new trial must be commenced fresh or
new, with- parties limited - -
- the to the
contents - - original pleadings,
of the
that the evidence and testimony of
the previous trial is null and void--
non-existent in effect--except when
governed by the existing rules of
evidence ..
." (Emphasis supplied.)
Under the provisions of section 93-2701, R.C.M.
1947, now section 27-2-102 MCA, an action is commenced
when the complaint is filed.
It is the filing date of the original complaint that
determines whether our order for disqualification and sub-
stitution of judges applies. In this case, the filing date
preceded the effective date of the order.
Therefore, if relators had a right to disqualify the
trial judge after our grant of a new trial, they must have
done so within the provisions of section 93-901 or be
precluded from such disqualification.
The relators have failed to comply with section 93-901
for two reasons:
(1) They have failed to file an affidavit in accord-
ance with section 93-901(4), stating that relators cannot
have a fair and impartial hearing and trial before the
district judge in question.
(2) They have failed to file their affidavit of
disqualification within three days of the time that they
were notified that Judge Shanstrom assumed jurisdiction.
Judge
~henkhanstromassumed jurisdiction in November 1976,
relators and all other parties then in the action under
9
section 93-x01, new had but three
days, upon receiving notice, to file a disqualifying
affidavit. Any attempt to disqualify a district judge after
that statutory time has elapsed is a nullity and does not
have the effect of depriving the district judge of juris-
diction. State ex rel. Leavitt v. District Court. (1977),
Mont . , 560 P.2d 517, 34 St.Rep. 65; Stefonick
v. District Court (1945), 117 Mont. 86, 157 P.2d 96. The
right of disqualification, once lost, cannot be revived.
Leavitt, supra.
Accordingly, relator's application for supervisory
control or other appropriate writ is denied.
DATED this /*day of February, 1979.
1
I Justice
We Concur:
Chief Justice
&/
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