*1 263 EDEN, COURT STATE ex Rel. v. DISTRICT Petitioner, al.,

et Defendants.

(No. 8,001.) (Submitted 3, 1939.) September 30, November 1939. Decided (2d) Pac.

[95 447.] *2 Horsley, Mr. Edward Mr. D. Ranlein and Mr. Acker, Petitioner, Arthur P. for submitted original reply brief; Mr. Horsley and Mr. F. Schallenberger argued Wm. orally. the cause McGough, Maury Mr. H. L. John F. Mr. A. G.

Shone, brief; Maury argued Respondents, for submitted a orally. the cause sitting LEIPER, FRANK Judge,

HONORABLE P. District parties, both opinion with consent of delivered the of the court. Eden, Carl F. petitioner, restraining The here seeks a writ proceeding the defendant district with the trial of plaintiff Frank Cassels is cause wherein and Andrew O’Con- defendants, pending A. Grorud are now nell and and at issue County, Jefferson District Court of peti- in the Montana. The in the district court action. tioner intervened An alternative represented The defendants are issued. here writ counsel plaintiff in appeared by for the district court action and by answer. quash A lengthy motion somewhat recital understanding proper facts is here to essential issues involved. 1934. September 7,

The district court action commenced was Henry The Rodgers presiding Hon. G. was and is the County. Judge Rodgers within Jefferson On June disqualified imputed plaintiff. was for bias Thereafter Judge Rodgers duly designated Lynch Judge Jeremiah J. hear Judge Lynch thereof, cause. assumed January 14, 1938, petitioner herein filed an affidavit Lynch imputed 25,1938, July bias. On duly an order designating made Albert Besancon to hear such cause. July herein filed with the clerk of the County district court of Jefferson an affi- davit in form, seeking thereby due disqualify Judge Besan- con.

An supervisory alternative writ of July control was issued on 18, 1939, enjoined from proceeding with the trial of that pending hearing cause petition. of this The *3 petitioner Judge asserts will, Besancon unless restrained by proceed an order court, of this with the trial in the district petition court action. The alleges, part: your in “That Peti- tioner is alleges, informed and believes, and so that said Hon. Albert Besancon contends that said affidavit was late; your filed alleges too Petitioner and avers that he and [emphasis his counsel record by were never notified ours] of Clerk of said District Court that said Hon. Albert Besancon jurisdiction cause, assumed in accordingly your said alleges upon Petitioner information and belief that said affidavit timely filed; only your was that the notices which Petitioner’s [emphasis record ever respect received in ours] of annexed, said matter are hereunto marked B, G, ‘Exhibit D ” and I.’ petition alleges that, designat- The further after the order Judge the district ing cause, hear court “there- any Albert Besancon did not make upon said or enter jurisdiction that he in said cause to the effect assumed order all; of any or at Clerk at District Court therein notify any time, all, County of said at or at Jefferson did not your attorneys [emphasis Petitioner or record his ours] of said action that said Besancon had assumed ’’ therein. brings controversy. This of us to crux Counsel petitioner disqualified and judge contend that when one jurisdic another in, must, acquires called latter before tion, file in of the district court of the the office of clerk county order, in pending, where the cause is a declaration or an writing, declaring jurisdiction; that he has and does assume further, (three time mentioned in before the the statute days) begins by run, only not must such declaration be filed judge must, the district but the of the district court sub clerk sequent order, notify filing of such counsel record that of jurisdiction. judge designated the district so has assumed Counsel assert that no such declaration or order was filed Besancon; given that no the clerk of court record; that, therefore, or to his counsel running of the statute had not at the commenced time of the filing disqualification July 14, 1939. affidavit here, Revised Section far as material Codes so ‘‘ * * * provides: upon any or subsequent the second disqualification cause, judge judge district of an- judicial preside called in other district of the state must be action, motion, proceeding, action, motion, such or or the or proceeding judicial transferred to a district of another state; jurisdic- district of the when another assumed motion, proceeding, tion or action, the clerk of the dis- pending, notify trict court which the same was shall at once parties attorneys or their record in the same, per- either mail, sonally registered the name of the judge called action, motion, in, proceeding or to whom was trans- *4 subsequent second or affidavit of disqualification ferred. Such be filed with the clerk of the district court in shall which such proceeding may pending action, days or within motion three attorney filing record, or his of party affidavit, such after assuming received notice as of action, motion, proceeding.” July 28, position he did is that Besancon’s action; that counsel jurisdiction of the district court

assume any unacquainted with he is thereof; petitioner had met action; never known parties of that he has knowledge concerning the cause ex- any he them; of has no pleadings reading the cept gathered that which he has him given to therein, except information was and also what Wellington telephone Rankin, Esq., between conversations Rankin; the affidavit of the district that he believes proceed July 14, 1939, late, and that if he does not was filed too action, with the he will render himself trial the district court subject proceeding compelling him so to do. to an action or July 25, 1938,

The answer herein the clerk discloses that on by registered the district court advised mail try action; had been called in the district court on July 28, 1938, Judge Besancon wrote the clerk court as follows: your

“I registered stating mail of 25th that I have try been called in to the case of Frank Cassels vs. Andrew O’Con ju al., hereby I pending County. nell et in Jefferson assume risdiction that action and will orders relative make further (Em trial as soon obtain necessary information. phasis ours.) stating

“Kindly about, write me this case what is also lawyers they parties appear for, various and the with lawyers; course the address of the and also advise if the me is at issue.” July 30, 1938, by letter, the clerk of the district court

That on follows: “The advised Besancon as case is at issue and attorneys appearing plaintiff, for the Cassels are Mr. Butte, Maury McGough and Mr. John L. Montana F. H. intervenor, Boulder, appearing Montana. The for the Helena, Eden Mr. D. Rankin of Carl F. Montana.”

268

Section 8868, supra, is to the in which silent as manner the judge district assumption jurisdiction shall evidence his of when called in. We hold respect that formal order in that not is required July 1938, and that his letter of to the clerk of the district court, thereby sufficient, Judge and that Besaneon jurisdiction assumed of the court district action.

It will petitioner be noted say the that here does not that he calling no notice of Besaneon, the in of or the as- sumption of by judge. that Neither peti- does the say tioner attorney record, that his of Horsky, had no such notice; complaint but the given is that no notice was petitioner the record, or of Horsky, by his clerk the district court.

Whether appeared Mr. Rankin’s name of record one as attorneys petitioner for the herein not, the clerk laboring court seems to have been under impression that appear, it did so and the clerk so Besaneon, advised gave the clerk Mr. Rankin notice of the calling in of setting of the case for trial. In any event, the fact was, is that Mr. Rankin at Besaneon was called case, been, hear this ever since has and now is one of the attorneys petitioner. representing this Therefore act, his within scope authority, petitioner. of his is the act of this may party appear person

“A attorney; but, when appears attorney, acting such, the latter while has con management case, sayings trol and of the doings his presence concerning court the trial of the cause are though party the same as said and done himself.” (Coonan Loewenthal, 129 Cal. 61 Pac. 941; State v. Turlock, 169.) 76 Mont. 248 Pac. purpose the notice

The mentioned in section 8868, supra, litigant or to advise the his counsel is that a certain dis in; judge has1been called trict has assumed litigant jurisdiction, thus privilege afforded judge. thing importance The of vital is—not conveyed information, not how who was the information con conveyed veyed information fact rather was that —but (in here) litigant or to his counsel. this case the July Wel- 25, 1938, district court notified the clerk of the you lington Rankin, by “I to advise letter, as follows: wish Court in the Lynch, presiding Jeremiah over this Hon. J. day Henry Rodgers an order this absence of Hon. made G. Judges of the Fourth calling Besancon, in Hon. Albert one all matters Judicial District of Montana and determine to hear *6 ’’ may that have or arise said cause. at the The record here cause was at issue discloses that the Judge in, and counsel for the Besancon was called that plaintiff seeking was to have it set down for trial. Attached petition copies Maury to ad- the are of several from Mr. letters Judge Judge Besancon, dressed from Besan- to and also letters Maury, August 6, con setting to Mr. about the case for trial. On Judge asking Maury wrote Besancon that the case August 22, be set down for trial Copy 1938. of that letter August was sent and received Mr. by to Rankin. 9th of replied year Judge Maury’s 6th, that Besancon to letter of the saying, things: among other yours

“Have 6th al., pend- Cassels O’Connell et re. ing County. written the assuming Jefferson have clerk jurisdiction in that and case note the statement the clerk from your ready letter that the is issue and at trial. (Emphasis ours.) “ * ** I could set the Boulder Case on morning your August 26th if that will suit convenience and that of the you lawyers. Kindly let me hear from other about this. being is “Copy this letter mailed to Rankin and wish agreeable he would me the 26th and the inform if himself lawyers (Emphasis ours.) associated with him.” petition The herein recites Mr. Rankin that received copy thereby, on August 9, of that letter and or about 1938, Mr. Judge notice that Rankin actual Besancon had had assumed jurisdiction district court action. insufficiency given

Wherein lies the of the notice Mr. Rankin by Judge say, Counsel in effect, Besancon? there are

therein first, comq two notice have should defects— the clerk second, of court and judge; not from the such Horsky notice should have given been and not to Rankin. But if the notice had the clerk and not from come from of court the judge, if given it Horsky had been to Mr. instead of Mr. Rankin, any would the purpose of the statute have been better conveyed served? Would the information thus have been any more privilege given by effective? Would statute right to the have preserved? been better What petitoner pursued, lost would been method which preserved ? suggested by if method followed counsel been given The all of to Mr. Rankin contains Every required purpose information the statute. right given fully every statute has been thereby served— petitioner preserved. regard To form at hold otherwise is to stamp expense substance, further, place court’s subterfuge. of approval upon that which amounts to a In verified says his answer ‘‘ judge: attorney Rankin D. told That he for Eden previous August 1938, Wellington this cause Long Rankin called defendant on the Distance tele- phone *7 and told the was defendant that he the Eden, for F. the Carl intervenor.” 22, Judge On 1938, Maury Besancon Mr. October wrote part County, as follows: “Re Cassels vs. Eden in Jefferson et al. your willing now letter of 21st. was to set this case September dispose it in of October but was it notified process was in and did anything settlement not know * ** receipt contrary your until letter. I suggest that above set on 21st or 22nd and case be November if agreeable attorneys it you the other will at set that time. * * * R,ankin j/[r_ me called about this when it first enclosing up copy came so this letter to him am and take notify attorneys it he other associated with him.” will Horsky copy 21, received this letter. On Mr. October Maury Judge 1938, wrote Besancon Mr. about district court suggesting dates for trial. Copy cause its this letter was Maury wrote Mr. Horsky. sent to At the Mr. same setting copy for sent a Horsky of this trial and about cause Judge May 6, 1939, Judge On of that letter to Besancon. case, Maury setting Besaneon to Mr. about this wrote sending Rankin, Horsky, and Mr. copy thereof to Mr. McGough. May correspondence 29, On further occurred setting case, copies sent to concerning the of which were Horsky. and received by Mr. says: judge, answer,

The district in his further “That on shortly another previous occasion October or on that day, Wellington Judge by D. Rankin called the said defendant telephone Long Distance another soon after the occasion Judge jurisdiction defendant had assumed at least within one jurisdiction month after Judge the defendant assumed and when Judge lawyers communicating defendant with all Wellington therein relative to an appropriate trial, date for D. Rankin telephoned Judge by Long and went Distance into regarding considerable detail the fact the case inwas process Judge of settlement and that if the defendant could only setting hold off it for trial for two or weeks three that it very would likely again be 21, 1938, settled and about October Judge suggested after the defendant of Novem- period ber 23rd, Wellington 21st to cause, for trial of the D. again Rankin telephone called defendant again urged that it be not set for trial very as the case would likely be settled out of court.” allegations

These of the answer are not denied. foregoing From the recognized it will seen that Mr. be Rankin pend- whom before the cause was ing it, and attempted who had over to dissuade setting cause for Besaneon trial the reason pending. settlement was that a July 3, 1939, setting made order was the district court July 20th, for trial

case down tried on and the clerk of gave district Rankin, court thereof *8 July 14, the other counsel in the case. 1939, as well as to question disqualification filed. affidavit 272 repeatedly passed

This court has upon provisions sec- 8868, supra, tion both before and since its amendment. In the case of State Montana ex rel. Carl Eden v. Schneider, says: 286, (2d) 783, 786, 102 57 Mont. Pac. this court peremptory challenge juror, disqualification “Like the of a this (Washoe is waived if proper Copper not exercised at the time. Hickey, Co. v. 46 363, 584; Mont. 128 Pac. ex State rel. Jacobs v. Court, 410, And, District 48 Mont. 138 1091.) Pac. while the right imputed thus to disqualify for cannot bias be abridged subject (State merely because it is to abuse ex rel Court, Carleton v. District 33 82 8 Mont. Pac. Ann. 752; Cas. ex Court, State rel. Carroll v. 50 District Mont. 148 312), owing Pac. purely statutory to the fact that it is ‘open to so much abuse,’ this court heretofore construed it strictly according express terms, to its and has refused to ‘broaden by implication clearly it to include conditions not ’ (State within Donlan, Judge, them. rel. ex Nissler 32 Mont. 256, 80 244, 247.)” Pac. “ In Copper above, says: Washoe ‘Any Co. Case this court may

one advantage solely waive the of a law intended his benefit. public But a law established for a reason cannot be private agreement.’ contravened Codes, Rev. [Sec. anything peculiar There provisions, is not 1935.] about 4 They grant may subdivision merely privileges above. which accepted be They (1) or waived. are waived the failure to disqualifying (2) file a affidavit, failure to file in time. These considerations are sufficient to show that was it not the inject intention of legislature provisions any into these question public policy, emphasized by and this is the further provision limiting challenges the number of to five. Subdivi advantages sion solely litigant, confers for the benefit of the advantages may waived, and such they and in this instance ** * waived, were ”. in this Under the facts hold that we right waived his to file a against Judge affidavit Besancon, and that the affidavit filed on July 14, 1939, is of no untimely. avail because

273 effect petitioner counsel for by Some contention is made unconstitutional; three-day 8868 is provision of section that the part portion or pointed particular what but counsel have not out or that of of Montana of the State of either the Constitution give therefore, thereby shall, We violated. the United States is except matter to phase that of this no further consideration to fit do, if it to remark, legislature, in that sees so passing, might question in violat- repeal without the whole of the section ing part federal any of either state or Constitution. argument, suggests, in petitioner, in sub

Counsel for oral any stance, that in where no district should sit question prejudice; has that he been raised as to his bias ought step aside, filing of to even without requesting affidavit, that he so do. suggestion when is made judge has agree. A district as With that statement we cannot performance One of those sumed of the duties that office. jurisdiction hear he do duties is to causes over which delay. duty so It is see to it that all matters without his coming promptly may as as disposed before him are be unnecessary delay. Certainly any without no district he any prejudice should hear cause when is conscious of bias or any against parties therein; for but in the absence that, performance duty requires he hear and of his that decide each matter over he has which unless is prevented acting provided in the manner law. must and it is dismissed. proceeding It follows that this Mr. Chief Justice Johnson Morris concur. Justice Angstman specially: concurring Mr. Justice foregoing opinion, in the but result reached concur opinion attained. The means which that result is in the not tending Judge Besancon, copiously quotes from the answer had actual notice of for one counsel show Judge Besancon, had been called to hear he, the fact 1938, intending early as October to do so as and was cause proceeds allegations say then been not point true, denied. involved. This all but it is beside Rankin, petitioner, petition in the of counsel for one fairly herein frankly forth that he had actual notice sets try fact Besancon had been called early July case as petition alleges 1938. The admits and following July that the letter of was received him: “Re: Cassels Eden as Intervener Grorud. “I you Lynch wish that Hon. presiding to advise Jeremiah J. Henry over this Rodgers Court absence of Hon. G. made *10 day calling order Besancon, in Hon. Albert one of the Judges of the Fourth Judicial District of to Montana hear and may determine all matters arise said cause. very truly “Tours “(Signed) W. A. McCulloch, “Clerk.” correspondence petition Other attached to the demonstrates that counsel make they no claim that knowledge had no notice or that Judge try Besancon had They been called to the case. argument. conceded such facts oral Their contention filing disqualification before the time for the affidavit started run they to under section must have been given formal judge notiee the clerk of the name of the after had as- he jurisdiction. interpret As judge sumed I section as- permits sumes a cause when he himself to be in in called the case. That is made apparent from the fact that notify under that section the clerk parties, shall the or their counsel, “of the name of in, the called or to whom such action, motion, proceeding was transferred.”

Since counsel for concede that such notice was given, requirements I think the of the had statute been tomet start running of the time for further disqualifying affidavits from receipt giving notice the name of to ealled in hear the case. importance

I no to the attach fact that the notice from the Rankin, addressed to clerk was name, whose ac- cording petition, formally has never to been entered of rec- petition, according counsel, though, ord as associate Horsky, the at- Edward rather than employed such, as requires torney "While statute of record. concedes petition

given attorney record, had Judge Besaneon notice that record also not him the notice did try case, but been called opinion that majority agree I emanate from the clerk. with this was immaterial. Erickson: Justice special concurring opinion of agree with above Angstman.

Justice Appellant. TRAUFER, STATE, Respondent, (No. 7,948.) 1939.) (Submitted 1939. Decided November October (2d) Pac. [97 336.]