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 SUPREME coU~~ 

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 :i E$ A 4 1979 

Filed: :EF ,LI @f9 
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 subsequently 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 -- the parties limited -- to the 

contents -- of the original pleadings, 

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 substitution 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 accordance 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 ~henkhanstrom assumed 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 jurisdiction. 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. 

I 1 Justice 

We Concur: 

Chief Justice 

&/' 

fi