I concur in the result reached in the foregoing opinion, but not in the means by which that result is attained. The opinion quotes copiously from the answer of Judge Besancon, tending to show that one of counsel for petitioner had actual notice of the fact that he, Judge Besancon, had been called in to hear the cause and was intending to do so as early as October 22, 1938, *Page 274 and then proceeds to say that the allegations have not been denied. This is all true, but it is beside the point involved.
Mr. Rankin, one of counsel for petitioner, in the petition herein fairly and frankly sets forth that he had actual notice of the fact that Judge Besancon had been called in to try the case as early as July 25, 1938. The petition admits and alleges that the following letter of July 25, 1938, was received by him:
"Re: Cassels v. Eden as Intervener for Grorud. "I wish to advise you that Hon. Jeremiah J. Lynch presiding over this Court in the absence of Hon. Henry G. Rodgers made an order this day calling in Hon. Albert Besancon, one of the Judges of the Fourth Judicial District of Montana to hear and determine all matters that have or may arise in said cause.
"Yours very truly "(Signed) W.A. McCULLOCH, "Clerk."
Other correspondence attached to the petition demonstrates that counsel make no claim that they had no notice or knowledge that Judge Besancon had been called in to try the case. They conceded such facts in oral argument. Their contention is that before the time for filing the affidavit of disqualification started to run under section 8868, they must have been given formal notice by the clerk of the name of the judge after he had assumed jurisdiction. As I interpret section 8868, a judge assumes jurisdiction of a cause when he permits himself to be called in in the case. That is made apparent from the fact that under that section the clerk shall notify the parties, or their counsel, "of the name of the judge called in, or to whom such action, motion, or proceeding was transferred."
Since counsel for petitioner concede that such notice was given, I think the requirements of the statute had been met to start the running of the time for further disqualifying affidavits from the time of the receipt of the notice giving the name of the judge called in to hear the case.
I attach no importance to the fact that the notice from the clerk was addressed to Wellington D. Rankin, whose name, according to the petition, has never been formally entered of record *Page 275 as associate counsel, though, according to the petition, he was employed as such, rather than to Edward Horsky, the attorney of record. While the statute requires the notice to be given to the attorney of record, the petition concedes that the attorney of record also had notice that Judge Besancon had been called in to try the case, but as to him the notice did not emanate from the clerk. I agree with the majority opinion that this was immaterial.