(dissenting in part and concurring in part).
I believe that the application for a change of judge constituted a substantial compliance with § 508.130, RSMo 1959, V.A.M.S. and with our Rule 51.06, though technically objectionable. I so voted in Division and I still feel that the application should have been sustained. However, since the majority here votes otherwise, I wish also to express my concurrence in the foregoing opinion in so far as it deals with .the merits.
OPINION OF COMMISSIONER STOCKARD IN DIVISION 2.
In view of the result we have reached on this appeal a brief statement of the facts in the form of a general summary will suffice.
The Land Clearance for Development Authority of St. Louis obtained title by ■condemnation to a tract of land located at 2312-14 — 16 Market Street in the City of St. Louis, and it paid $43,500 into the registry of the court -which was the amount determined to constitute just compensation for the taking thereof. There is no issue on this appeal pertaining to the right to condemn or the amount of the award. Appellant was permitted to intervene, and she contends that immediately prior to the taking by condemnation, title to the property was vested in the statutory trustees of the Mitchell Realty and Investment Company, whose corporate charter was forfeited by the State of Missouri on January 1, 1946, and that as the owner of eight of the total of eighteen shares of stock issued by that corporation she is entitled to four ninths of the award and to an accounting of the rents and profits from the property. The St. Louis Argus Publishing Company contends that it was the sole owner of the property at the time of the condemnation, and that it is entitled to the entire award. By a cross-complaint it also sought a declaratory judgment, and injunction and special damages. The numerous pleadings, motions, and rulings pertaining to the above issues occupy more than 150 pages in the transcript.
The case was tentatively set for trial in Division 3 of the Circuit Court of St. Louis City on November 12, 1962. On September 17 appellant filed what she incorrectly denominated a motion for a change of venue, but which was an application to disqualify the trial judge. That application was denied by the trial court without stating its reasons for doing so. Trial was subsequently had before the court without a jury, after appellant’s motion for a jury trial was overruled, and judgment was entered adverse to appellant. The refusal to grant the application to disqualify the trial judge was assigned by appellant as error in the motion for new trial, and it is properly preserved and presented for appellate review.
Civil Rule 51.03, V.A.M.R. (reference is made herein to the Civil Rules pertaining to disqualification of a judge in effect prior to the effective date of certain changes made in 1963) provides that “If it shall be alleged by either party to the cause that the judge is * * * prejudiced, * * * or that the opposite party has an undue influence over the mind of the judge,” the court shall taire the authorized steps to obtain another judge to sit in the cause, but when the disqualification is made of a judge *86in a multiple judge circuit, pursuant to Civil Rule 51.16 “such case shall be transferred to another division of said circuit court presided over by a different judge.” Civil Rule 51.06 provides that this application shall be made by “a petition setting forth the cause of [the] application for * * * disqualification and when he [the party, his agent or attorney] obtained his information and knowledge of the existence thereof,” and it also provides that there shall be annexed to the petition an affidavit, made by himself, his agent or attorney, “to the truth of the petition, and that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged.”
Appellant contends on this appeal that her application “was in proper form in all respects,” and that under such circumstances it was prejudicial error to deny her application to disqualify the judge. The only reason advanced by respondents in support of the action of the trial court is that the affidavit annexed to the motion “was insufficient both as to form and substance.”
Although it is clear that the rules contemplate the presentation to the court of a petition in which there is alleged an authorized ground for an application to disqualify the judge, and that there shall be annexed to the petition an affidavit containing certain averments, appellant did not present her application in that form. Instead, what appellant did was to consolidate the petition and the affidavit so that each consists of the entire instrument. However, if the minimum requirements for both the petition and the affidavit are contained therein, poor draftsmanship should not prevent consideration of the substance of the application.
Appellant first alleges in her combined petition and affidavit that “she cannot have a fair and impartial trial * * * for the reason the * * * judge is prejudiced against her,” and for the additional reason that the St. Louis Argus Publishing Company, the opposite party to appellant, “has an undue influence over the said judge.” She then alleges that she did not learn of the above facts until September 14, 1962, and that “this affidavit is filed within five days after your affiant became aware of the foregoing facts.” She prayed the court “to transfer the cause to another division of the circuit court, in the manner prescribed by law.” Following this is appellant’s signature. There then appears a jurat wherein it is stated that appellant personally appeared before the certifying notary public, and “who after being first duly sworn says that she cannot have a fair and impartial trial in Division No. 3 and that the matters and facts stated in the above motion are true and correct.” It thus appears that appellant alleged at least one of the grounds set forth in Civil Rule 51.03 to disqualify the trial judge, and that she appeared before a notary public and swore that the facts stated in the “motion,” which was her petition, were “true and correct,” and that she also swore that she “cannot have a fair and impartial trial * * * for the reason the * * * judge is prejudiced against her.”
It has been said that it is essential that there be strict compliance with the provisions relating to the substance of the petition to disqualify a judge and to the substance of the affidavit required to be annexed thereto. Erhart v. Todd, Mo., 325 S.W.2d 750. However, this does not apply to mere matters of form. La Grange Elevator Co. No. Ill v. Richter, Mo.App., 129 S.W.2d 22. As previously noted, the petition and affidavit are not in the form prescribed by the rules, but our examination of the instrument discloses that it contains every allegation of substance and every affirmation under oath required by the rules to constitute a valid application for disqualification of the trial judge.
The Civil Rules provide, see Rules 51.03 and 51.16, and it has long been the rule by court decision that when a party files an application to disqualify the judge, if it is the first such application by that party, the judge “ ‘has power only to determine whether the application is in due form and due *87time, and if it is, to see that the proper steps are taken to substitute another judge’ —he may not pass on his own qualifications.” State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, 700; State v. Bailey, 344 Mo. 322, 126 S.W.2d 224, 227. We construe the above reference to “due form” to mean that the judge is to determine whether the application contains all required allegations and all required affirmations under oath; it does not refer to matters of draftsmanship. There is no requirement that the petition be supported by evidence. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. It is not contended in this case that the application was not timely. While it is true that at the time it was filed appellant had previously filed her responsive pleadings, she alleged that the knowledge of the disqualification was not obtained until September 14, 1962. The application was filed on September 17, and the time set for trial was eight weeks away. We cannot say that these circumstances result in the application being untimely.
Respondents rely on Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988; Erhart v. Todd, supra; Industrial Acceptance Corp. v. Webb, Mo.App., 287 S.W. 657; and Spencer v. Smith, Mo.App., 128 S.W.2d 315. The Robertson case pertained to the sufficiency of a divorce petition. It was there held that in some situations an affidavit must be signed by the affiant. See .also Royal Loan Co. of St. Louis v. Darr, Mo.App., 220 S.W.2d 787, 789. However, we have determined that in this case the entire instrument constituted the affidavit, and it was signed by the affiant and was sworn to before a notary public. In the Erhart case the application to disqualify the judge was denied by the trial court because it was “untimely filed after the cause was called for trial” and because the affidavit was insufficient. On appeal the sufficiency •of the affidavit was not ruled, and its terms are not set out. We cannot tell from the Spencer case whether there was no affidavit .at all or whether it did not contain the sworn statement that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged.” As previously noted, the equivalent of such affirmation is in the affidavit in this case. In the Industrial Acceptance case the affidavit to an application was held insufficient because it was “not to the truth of the facts stated” but only “to their truth according to the best knowledge and belief of affiant.” Regardless of the merits of that distinction, appellant in this case swore that “the facts stated * * * are true and correct.” These cases do not provide any basis for sustaining the action of the trial court in this case.
It is unfortunate that after the lengthy trial of this case there cannot now be a final disposition of the merits on this appeal. However, under the circumstances appellant was entitled to a' trial of this case before a different trial judge, and the denial of that right was prejudicial.
The judgment is reversed and the cause remanded.