*1 86 Mont., ex Phillips Ford, State rel (2d) v. 151 171. But Pac. Phillips
since the case was long- not decided until after relator adopted had procedure prescribed and followed the in the Golden Valley County case, this case controlled the latter. Mon tana Horse Products Co. v. Northern Co., Great R. R. 91 Mont. 194, (2d) 919; 7 Supply Pac. Abell, Co. v. Continental (2d) 133; 24 Simanton, Pac. v. State Mont. (2d) 981. accordingly judgment
We direct be modified $2,500 reducing damages $877. thus As modified it will stand will affirmed. Each its own costs pay appeal. Chief Johnson, Justice Associate Justices Adair J„ Cheadle, J. concur.
Mr. Morris: Justice
1 concur in foregoing opinion questions involved to all except attorney’s the allowance for fees the sum of $1,000. $600. brought Counsel the action collect one bond represented fifty He other hundred no client the action. Two generous purpose. dollars would be a for that fee Petition rehearing May denied 1945. STEFONICK, COURT, Relator,
STATE DISTRICT ex rel DISTRICT, COUNTY, FIFTH BEAVERHEAD JUDICIAL Respondents al,
et No. 8582 February 9, 1945. March Submitted Decided 157 Pac.
Mr. W. G. Dillon, Gilbert and Gilbert, Messrs. Gilbert & all of and Messrs. Gunn, Gunn, Rasch & of Helena, for Relator. Maury Shone,
Messrs. & Butte, Collins, and Mr. John Dillon, Respondents.
MR. CHIEF JUSTICE opinion JOHNSON delivered the of the court.
Relator, Stefoniek, Peter defendant divorce action Stefonick, court, 8572 in Stefonick Cause No. seeks prohibit respondent writ hearing- district plaintiff’s attorney’s appeal. motion therein for fees and costs on
The divorce suit was filed in district court of Beaverhead county. Lyman Bennett, thereof, The Hon. H. district disqualified by plaintiff. was behalf affidavit on the. Hon. R. E. McHugh, judge of Third district Judicial Dis- trict, thereupon jurisdiction, called in and assumed *3 disqualified defendant, by was affidavit filed on behalf respondent, Comer, relator herein. Hon. E. The C. district Distinct, of the Fourth Judicial was then called in sit jurisdiction in February, 1944, case and assumed in tried April, September, duly cause in and in had been briefs filed, Relator, Sep- plaintiff’s rendered a in favor. decree on 23, 1944, perfected appeal. 1ember his 1944, November, plaintiff requiring In moved for an order pay attorney’s appeal. relator costs and her fees 29th, order to show cause was served relator on November day disqualification an Judge and on the same affidavit behal-f under fourth Comer was filed on relator’s subdivision Codes, December, Thereafter in in Revised infra. disqualification Judge Comer, spite attempted his exceptions in the caused bill of divorce action to be relator and the latter presented Judge Comer for settlement made settling it. order
89 Subsequently Judge hearing plaintiff’s Comer set for motion attorney’s
for had been appeal, costs fees on which originally continued the time set the order to show necessarily cause. The motion is which one of the district jurisdiction appeal. (Sec. 9739, despite retains Revised Codes); Bordeaux, 359; Bordeaux v. Pac. Mont. State Court, 918; ex Tong rel Pac. District Mont. 611, 139 ex rel v. District 113 Mont State Enochs (2d) 545.
Respondent judge’s answer alternative writ issued to the expresses herein personal questions pre- in the indifference sented, but his belief that he has of the cause and proceed duty it is therefore his to hear motion. It urged respondent attempted disqualifi- on behalf of that the cation, which was in the third too late and that came any event it presentation was waived relator’s of the bill exceptions hand, Comer for settlement. the other On relator disqualifying contends affidavit was filed time, presentation and that the consti- bill of tuted waiver no thereof the affidavit of because payment referred to the attorney’s of costs and appeal, phase fees on and not action itself or to other questions thereof. We shall order. discuss these inverse The affidavit filed under See. Codes, provides
Revised as follows: “Any justice, justice judge, peace must sit not act such in proceeding: action or
“1. party, interested; To which he is a or which ishe “2. When party by consanguinity he is related to either affinity degree, computed according within the sixth to the law; rules of attorney for either
“3. When he has been or counsel when he rendered or action or made *4 appealed order, from; judgment, or decision and an affidavit as here- party “4. either makes files When believe, believe, does has reason to provided, inafter that he lie impartial cannot a fair hearing- have or trial before a judge by prejudice district reason of judge. the bias or such may by any Such affidavit party action, motion, be made or proceeding, personally, attorney agent, or or and shall filed with be the clerk of in the district court which the same may pending days day appointed be at least five before the or hearing fixed for the or action, motion, trial of such or proceeding (providing such shall had have notice of action, motion, of such proceeding or for at least period of five and in shall case he not have had notice for length time, immediately such he shall such affidavit file upon receiving- notice). affidavit, Vpon filing judge as to whom said is averred shall be motion, action, without to act further in pro- or ceeding, provisions appty but the of this section do not to the arrangement calendar, regulation of the order of business, power transferring action or court, power some other nor to calling in another district judge sit proceeding, providing and act in such action or judge no arrange shall so pur- calendar as defeat poses judges of this section. No more than two can be dis- qualified prejudice proceeding, for bias or in said or plaintiff, at at instance of the and no more than two defendent, proceeding, the instance of in said action or apply many persons and this limitation shall however or in plaintiffs interest or defendants such action or proceeding-. any judicial If there be than more one filed, upon district which said affidavit is made and cause, judge, first another judicial residing in wherein district the affidavit made action, motion, filed, preside must be called in in such disquali- or proceeding; any subsequent second cause, judi- fication district of another preside be called in to in such cial district of the state must motion, action, motion, proceed- judicial ing transferred of another district district *5 state; jurisdiction when another assumed has action, motion, clerk of the district or notify pending, at which the same was shall once same, attorneys or or personally their of record in the either mail, in, registered of the name of called or to whom motion, action, such or was transferred. Much sec- subsequent ond or affidavit of be filed shall motion, with action, the clerk of the district court in which such proceeding may pending days party within three after the attorney record, filing affidavit, received such has action, judge assuming jurisdiction notice as to the of such motion, proceeding.” only
Until the statute included the first subdivi- three sions, disqualifications, year actual relate to provide disqualification subdivision was added to what “imputed prejudice.” been termed bias or Acts Sess., 2d Ex. originally c. As enacted it allowed each disqualifications only five such required that the affidavit be filed day appointed “at before time or fixed for the hearing or trial.” There have been of the sub- two amendments division, (1) chief effects of which to reduce the num- were disqualifications ber party, (2) from five to two for each require days that the affidavits be filed “at least before five day appointed hearing trial,” (3) or fixed for provide parties, for notice to the when another has as- jurisdiction, (4) require sumed that “such second or affidavit of shall be filed with the * * receipt clerk within after” the three of notice judge assuming jurisdiction.” “as to the question affidavit, disqualifying
The first is whether here effective, disqualified Judge acting if Comer from or sit- ting only attorney’s appeal, motion for fees and costs so that he could still in other matters connected with the act Relator settling exceptions. of the bill disqualifying contends that affidavit had that effect be- could it stated that affiant believed that relator not cause “a impartial hearing have fair and or trial of said order to application show cause or the said for order to show cause prejudice” reason of judge. bias It is not clear how judge’s prejudice bias and deny litigant could be such toas impartial fair and step one an action without affecting other steps However, unnecessary also. it is to con- sider question, possible since the statute does not make disqualify judges particular portions proceed- of cause or ing, distinguished thereof, parcel the whole so as to out the concurrently among two trial or more judges.
See. permit not does construction result which could in so provides chaotic a It situation. that not the “must sit any or act as in proceeding” such action or in which the affidavit provided by is filed as subsection 4. That subsection provides upon moreover filing that the affidavit the calendar, only shall powers have the arranging regulating the the order of and “transferring proceed- business the action or ing to some other court” “calling or in another district to sit and act such proceeding.” action or It that is clear goes proceeding. to the entire action or pro first “motion” in
The reference to the section was provision in affidavit be cedural subsection that the any day appointed filed “at time before the or fixed for action, proceeding.” healing trial of such motion or prevent purpose to dis obvious clause was affidavits of hearing being dajr qualification from filed on the words, itself; perhaps hearing prevent at the other actual ‘‘ delays delays, postponements and and not to add nor to secure postponements which are not deserved.” ex rel Jacobs State 410, 1091, 1093. if v. District 138 Pac. But purpose that have word “motion” had not been inserted would defeated, requirement only if largely been were might be the affidavit of be filed at time itself, hearing or trial of the action or such fore the delay hearing pre as to of all affidavits could be filed so liminary matters, ordinarily of which there are a number in proceeding. each only part Thus a small de sired accomplished result would have been and judges, might justice delayed and counsel have been harassed and at every step except actual proceeding. trial of the action or especially enacted, This was true when, originally the sub granted section each such That in disqualifications. five opinion provisions legislature still led too much delay by 1909, evidence amendment in Laws e. permitted disqualifications party, reduce the two for each further amendment in Laws e
require days the affidavits to be filed at least five before the day hearing, set for and to require given that notices be of an assumption other judge’s and that disqualifying affidavits must be filed within three notice thereof. can legislative purpose
There be no doubt that insert- ing the procedural word “motion” the first clause was to make provision fully, effective; rather than fractionally, having required day affidavit be filed before the action, set for or trial of it was filing natural to add that should motion, “without act further proceeding.” disqualifi- But that the effect of affidavit tion not limited to motion alone is shown the fact *7 limitation, that no words -wereused that to effect the word “motion” at provision was not added substantive to the section, beginning upon depends, subdivision judge that the must not sit act in thereafter or the action or proceeding, only exceptions that to that absolute dis- qualification powers arrange calendar, were of to to regulate business, the order of and to transfer the action or judge proceeding to some court or to another to other call proceeding. sit in the action or procedural provisions
When were amended in to provide that if is district lie there another same brought in from another district
must be called before wording the first perhaps it was natural follow the as actions procedural clause and mention motions as well procedural proceedings. same true to the further another given when requiring amendment of 1927 notice to requiring any subsequent dis- in, has been called days after notice qualifying affidavit filed within three to be procedural pro- upon thereof. But neither amendment of the pro- visions was there limitation of the above substantive beginning section, terminating judge’s vision at the o£ the authority proceeding, of the to sit act the action or or reservation of the to transfer the entire action or proceeding another court or to in another to sit call proceeding. entire action disqualification necessarily goes The fact recognized by entire action has been this court beginning. from the Within sixteen months after the subsection was added as amendment Procedure to Sec. Code Civil Donlan, court said in ex 32 Mont. State rel Nissler 244, 247, speaking through 80 Pac. Mr. Chief Justice Brantly, “it will be amended Sec. 180 noticed that contem plates that, disqualified found once has been to be at thereafter sit in it he must not action any stage of it.” enacted, years subsection was
Again, less than two permit purpose that the not to recognized this court only, but to motions judges with reference the entire disqualification for effective the malte more v. District In ex rel. Carleton proceeding. State 752, this court said: 789, 791, 8 Ann. Cas. 82 Pac. purposely, been inserted to have word ‘motion’ seems “The legislature to allow of the intention that it was the indicate at time before work the litigant any time before and, further, at merits, on the time for trial involves of the ease which progress a motion partic- rights adjudication a final
95 might ular branch of ease. To illustrate: That be filed any hearing strike, at time before the of a demurrer or motion to merits, judgment pleadings, or motion for on the or trial on the hearing trial, aside on motion for a new or motion set like, default, anjr on the or the not of these instances day seem to hearing during progress. It would its necessarily during progress of that motions made MIoav any of hearings excluded, hearing these are because a therefore merits, upon motion, includes all motions or steps may necessarily present other Avhich made in be order to questions involving during rights of progress hearing. given of such This construction must be fourth 'motion,’ of 180, subdivision Sec. else the term * * * used therein, significance as no Avhatever.
“While
disqualification
imputed
prejudice
bias and
during
hearing,
not be invoked
limitations
because the
embodied in
impossible,
the amendment
180
to Sec.
render it
yet
disqualification may Avorked,
specifically provided,
any
day
at
upon any
time before
one of
separate steps
taken in
This
progress
to be
ease.
include,
course,
Avould
a motion
a new trial.”
It has repeatedly been
affidaAdt,
held that the effect of the
if
deprive
filed in time,
is
further
to act in
except
the action or proceeding
expressly provided
a number
coming
of those decisions
after the
amendments
procedural provisions
(State
of the section
Perry
ex rel.
553;
v. District
Mont.
Rus
Refining
sell v.
Company,
Sunburst
Respondent’s argument effect of affidavit of presentation relator’s was waived Comer for settlement and bill settling it, act in cannot be sustained. It is not neces-
latter’s *9 sary prior disqualifica- a to consider whether such waiver of excep- possible, presentation tion is ever for the of the bill of obviously a by person tions an unauthorized is for settlement Appeals this nullity any purpose. and can for to have no effect subject regulations and limitations as court are to “such VIII, 2. by Sec. prescribed Constitution, law.” Montana Art. judge may a settle and legislature provided that has judge, sign exceptions a bill of after he ceases to become is office, disqualified, if “dies, that he removed from becomes is exceptions, bill state, or refuses settle the of absent to same, provided by or if is law for the settlement of no mode supreme as the it and certified manner shall be settled by rules, Sec. Revised may, its order or direct.” to become short, Codes. In it when ceases is by from office that he judge otherwise than death or removal him, by exceptions in a cause tried can still settle the bill of but is continues to be not when for some reason he ex rel. pointed out in State disqualified act. As this court to may, during the supra, v. District Carleton various disqualified under the progress litigation, become provisions of Sec. 8868. (Rule VII) provided for the settle- by court has rule
This any judge the district exceptions “in ment bills of case request, proper presentation or refuse, upon fail court shall exceptions certify exception bill allow, settle to expressly not heretofore case.” But it has statement of the events men- other by such settlement provided rule for this application was made to instance no tioned, and settlement providing for the mode of court for an order It follows by exceptions, provided Sec. bill as effective, Judge Comer was disqualification attempted if settlement, him exceptions of the bill of presentation cannot, They there- him, nullities. were settlement its fore, have revested Coiner with or have disqualification. constituted a waiver of his suggested It provision that the of Sec. for settlement of bills of disqualified” if the "becomes disqualifications does not refer to under See. subdivision because subdivision was But not enacted until later. Sec. with other three relating subdivisions dis- qualification judges, adopted 1871, twenty-four had been years prior enactment latter neees- sarily any disqualifications includes provided then or thereafter possible law. It application is not limit its to certain disqualification, kinds of it legislature for the has not limited any way. possible Nor interpret "disqualified” physically meaning for, incapacitated, applied judges, "disqualified” word acquired a definite and technical meaning must according (Sec. 15, to reason and Re- statute *10 Codes), vised accordingly. be Certainly construed various the "disqualify” forms of the verb applied judges as not should be construed already otherwise than as this ocurt construed has them in the above-cited and in decisions dozens of others. meaning
But if their narrowly in Sec. 9393 could be more construed, is authority judge, there still no his however disqualification arose, a bill of in settle an action in which See. 8868 declares that he has no further to act. question final
The is whether the affidavit was filed in time. above, As noted provides Sec. 8868 that when another jurisdiction assumed clerk give shall notice "of the name in” of called and that second or "such disqualification affidavit of shall be filed with the * * * days” receipt clerk within three after of notice. This is was third affidavit of in the action. It not days receipt that filed within three after relator’s of notice Judge jurisdiction; had been in had Comer called assumed jurisdiction for had been in had assumed called before, presided trial, some nine had months had at the however, rendered contends, the decree. that Relator affidavit of filed day was on on order upon him, to show cause was within served it was three days ‘‘ receipt Judge after of that had assumed notice Comer ‘‘ ’’ jurisdiction of the motion. But Comer was not called juris- in” to hear motion. called in and assumed He was action, long including diction before that hear the time to entire issuance, and all motions connected therewith. in cause, November, of the order show not a notice assumption hearing upon held jurisdiction, but of to be jurisdiction already matter of which he had virtue of what during preceding had been March. done upon Relator relies ex rel. Carleton v. statement State Court, supra, District disqualification by that affidavit worked, specifically provided, sepa- before one of the steps including rate progress ease, taken of the mo- to be tion true when judgment. made after final The statement was true; is made and it still 1927 the statute was specifically provide that amended the second subse- so as disqualification must be within three quent affidavit filed action, judge assuming notice as to judge’s proceeding. speak It is correct to motion or not provides assuming jurisdiction of a motion since the statute proceeding,” in “to sit act in such action or he called matter called whether not a motion the first he is proced- in this hear; word and the inclusion of the “motion” in the same alter fact. As this court said ural cannot clause upon a below, case, quoted change statement change change just as a motion transfers upon the trial or place trial *11 the action or In either case is the action. merits transfers assumes judge loses and the other the which one proceeding of jurisdiction. ex rel. Carle- upon in State the statement
Relator relies also ‘‘ a new trial for supra, that ton v. District the case independent of trial of the pro proceeding is hac vice merits,’’ on suggests attempted dis- tlie therefore that the qualification only but is not third first. But the court the the say: course,, part went on latter limit- “Of the of ing disqualifications upon ground number bias of of prejudice, must mean number of dis- be construed to qualifications controversy during that had be ground prejudice stage it, change of bias and at of because place change of a motion trans- judge upon of trial or a of just change change fers as a the same of place of a of trial the trial or of the cause proceeding cause, and no on the merits transfers stage it, made, par- matter at what the transfer is permitted ticular transfer must be counted as one the five party by to each the statute.” Since the upon a motion for a new trial to be considered one of granted parties whole, for those action as entire necessarily the same is disqualification upon mo- true attorney’s tion appeal. for costs and fees on It must be true also requirement subsequent that “such affidavit second or disqualification” receipt must filed within three assumption notice of the judge’s jurisdiction, new likewise refers to the second or affidavit filed in entire rights given disqualifying file granted not separate affidavits are limited with reference motions, with reference to the action or aas whole. however, interesting,
It how, to consider if the motion were entirely separate matter from the cause on its merits so separate disqualifications apply it, Judge could Comer ever acquired it. motion, itself, over The like cause was filed the court the Fifth Judicial District for Beaver- county, Judge Bennett, Comer, head over Judge and not presides. acquired jurisdiction How latter of the mo- tion, through calling unless him to the order Bennett answer, course, sit and act action itself? divorce quoted is as shown the statement last above the Carle- *12 judge ton decision. The one effect of the of calling juris- assumption and the new the action, everything by diction him transfer is to the entire therewith, If, connected one how- to the other. just as- ever, Judge Comer had been called in and had first jurisdiction by sumed order show cause the issuance attorney’s appeal, motion and costs on for fees been in and relator disqualifying affidavit would have time sought. writ would have been entitled to the above, by in 1903 8868, noted amended the addition As Sec. as 4, provides subdivision that a “must not sit or * * * when act as such in action or either provided,” party affidavit hereinafter makes and files an as that, by impartial hearing a fair he have he believes cannot period prejudice. Throughout judge’s reason of bias or subdivision, forty years addition of that than since the more necessarily, right consistently, and held this court has upon litigants by legis- thereby conferred for the first time statutory if not exercised purely waived lature is long succes- necessity provided. There is no to cite the therein rel. such decision is State ex sion decisions to that effect. One 263, 95 Pac. 447. Since Court, 109 Mont. Eden v. District by within set not filed the time this case affidavit was prayed for is therefore effect. The writ statute, it was of no denied. Cheadle concur. Justices Adair and
Associate (dissenting) : Angstman Mr. Justice agree with result reached I I am dissent. not able to practice in Montana majority. agree I that under the without step an action is in one disqualified who is except the statute further in the to act First, questions case. permits. are but two There second, And, timely? Judge Comer disqualifying the affidavit signed fact that Comer affected question how is the dis- filing affidavit of after the the bill of ? qualification Court, Mont.
The case of
ex rel. Carleton v. District
State
752,
8 Ann. Cas.
made it clear that a
proceeding may disqualify
imputed
separate steps in
progress
bias at
one of the
of a case.
later
of State
That case ivas followed
case
ex
Working
rel.
147 Pac.
District
statute,
amendments made
which is now
*13
change
since the
of
statute
decision
the Carleton case do not
the
respect
point
in
disqualifying
may
be
affidavit
one,
“action,
in any
motion,
filed
proceeding”
and
or
separate steps
of the
it
pro-
therein. The
as
now stands
statute
that,
part
in
jurisdic-
vides
“when
judge
another
has assumed
action,
of
motion,
tion
an
clerk
or
district
court in
pending,
notify
which the
shall at
same was
once
same,
attorneys
or
person-
their
in
of record
either
alty
registered mail,
in,
or
judge
of the name
called
action, motion,
or
to whom such
or
was transferred.
Such second or
affidavit of
shall
action,
filed with
clerk
be
of the district
in which
such
proceeding may
pending
days
within
be
three
party
attorney
record,
filing
affidavit,
jurisdiction
judge assuming
received
as
notice
to the
of such
motion,
proceeding.”
above-quoted
The
language was added to the statute since
the decision in the
change
Carleton case but there was no
in
gave
fax-
it
right
disqualify
judge
the statute so
in
motion,
“action,
proceeding.”
It must
assumed
thus be
legislature
interpretation
that the
was satisfied with
in the
Carleton
right
goes
case to
effect that the
disqualify
in
separate step
proceeding.
each
action or
right
to dis
judge
qualify
right.
is a substantial
State ex
v.
rel. Carroll
District
arise the case before the Fund, judge interpretation. Gugler Ind. Acc. is not a liberal construed it must be said liberally 89. I think served very day when relator was filed on the the affidavit case and which copy application order, with a of the hearing, was set than five before the same was more timely. was conjunction
See. 8868 must be read in with Sec. which question changing place deals with the of trial and amendment considered the Carleton case as Sec. before change place when provides section for a of trial 615. That provides: “The judge disqualified. far material So must, motion, change place trial in the judge court or * * * any cause, from following When, cases: * * * any qualified disqualified acting; if thirty days shall, in and within district shall called be made, appear and assume after the motion is change of therein, no proceedings matters cause of all appear so made. If such shall place of trial shall be exercise, cause, all the with, said vested and shall he shall be pro- in which action or district said ’’ when a is called legal In ceeding pending. effect *14 place of changing the cause, without jurisdiction a in assume to judge. the local steps the shoes of trial, judge called in into the so acquire judge, does he greater rights than the local nor has no He' judge. If local in than the the case permanent more status right disqualify judges, exhausted party has not to two either judge, subsequent independ- may disqualify such on some he arising judge after has assumed exercised ent motion the Had phase the action. the over some other Judge going Comer Missoula instead of been transferred to try ease, party I think a could use to the Missoula to Dillon trial and on a right disqualification after the here, follows where I the same conclusion think motion as in. The affi- judge is called but is not transferred case subsequent judge against second or timely filed as was davit when it day appointed was filed at least five before the hearing or fixed separate proceeding- for the of such motion or merits, arising after trial of There the action on as here. its in nothing- is Eden v. District the ease of State ex rel. against Mont. 95 Pac. view. militates separate step proceeding arising
That did not case involve after trial of the action on its merits.
I language present do not find in can statute which legislative change be held purpose to evince to the rule of By litigant proceed the Carleton case. to decision could judge trial before the before whom was the case waiving filed right disqualify imputed without him for bias at subsequent step some in case. reason for There is no prohibition different rule and I not find in the do an3* an3T preventing doing thing statute the same as to the second or subsequent judge in the case. litigant right disqualify
Each however is limited to the judges throughout proceeding. two entire action or This squarety case, except was in held the Carleton at that time each right disqualify judges Judge had the in case. five Comer, case, while third was the second judge attempted disqualified to be relator. b3r
Did Judge the fact that relator asked Comer to settle exceptions bill of filing of the affidavit affect question, signing act of was the Comer the bill justified ? exceptions asking, valid I think relator was compelled and in ask, Judge sign fact Comer to the-bill doing and that his act so was valid. obliged present proposed Tender the statute1 relator was case,” bill for settlement “to tried heard who n Judge Comer, Revised remem- Codes. it should be bered, who tried and heard on its merits. the case here, “When, change there been a between the for a when a time the motion new trial was made and the time same, had on the who heard was position what before one who is cert-if3' onl3r *15 104
him and ruling what considered he as the basis of his on the Co., motion.” v. Sunburst 272 Russell Ref. Pac. 998, 1003. to the Davis, And see same effect Pincus v. Mont. only- So in this case Comer is the judge position who is in what certify place to took at the trial and what before him he judgment. was when rendered permits judge sign exceptions statute to bill settle he ceases judge. such Revised Codes. settling The act a bill exceptions does not involve the judicial discretion, person exercise of or a who has ceased to be a judge certainly could not be it. authorized to settle And judicial where, act here, thing involved no discretion judge sign had do was as sent him and where the bill proposed no required were offered amendments to bill consideration. foregoing, settling excep-
Because of the the act of the bill tions part reading, does not conflict with that of See. 8868 “upon filing affidavit, said as to whom is averred shall be without to act ’’ further in proceeding. motion or officer, provides:
Sec. 9393 judicial “If also settled, dies, before the bill of from is removed office, disqualified, state, from or refuses becomes is absent by- exceptions, provided settle the if no mode is bill law same, for the settlement of the shall be settled certi- supreme may, fied in such manner as order or its rules, disqualified” direct.” The words did not con- “becomes template disqualification imputed for bias because when Sec. passed right imputed disqualify bias did I think not exist Montana. Also words were those they used in ordinary their natural and sense and that have physical disability incapacitating reference to mental some acting they have no to a dis- from reference qualification filing imputing resulting of an affidavit prejudice merely depriving bias and which has the effect particular is made over a matter. This *16 by apparent permits consideration of the entire which section a judge judge, to settle the bill after he has ceased to be jurisdiction a indicates that loss of kind disqualifi not the contemplated by cation making necessary to section 9393 resort to settling for direction mode Estate, exceptions. bill of 72 Thompson’s of In case re 103, Utah question Pac. considered what as to meant a provision authorizing constitutional supreme justice court to call in a district judge when disqualified. shall be It said: “We think is used the term its sense, and ordinary natural and thus illness or a includes physical disability or other incapacitating condition member See, also, the court.” Feinberg Riley Thomlinson Co. & Kahn, App. 220 Ill. 442.
I think imputed disqualified by who has been separate from hearing arising bias to the trial aof power ease its merits has to settle exceptions, the bill of party and that when asked to do so who against theretofore filed an affidavit of him, right has not waived his stand disqualifying affidavit.
I think applied the writ issue. should Mr. Morris: Justice
I dissenting opinion concur in Angstman. of Mr. Justice Appellants
HEISER, Respondent, v. SEVERY et al, No. February Submitted 1945. Dismissed March