No. 93-490 IN THE SUPREMZ:COURT OF THZ STATE OF MONTANA 1994

JAMES P. CHALLINOR and BETTY E. CHALLINOR, Plaintiffsand Appellants,

GLACIER NATIONAL BANK and DOUGLAS B. REMICK, Defendants and Respondents.

APPEAL FROM: DistrictCourt of theNineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert S. Keller,Judgepresiding.

COUNSEL OF RECORD: For Appellants: Russell K. Jones,Attorney at Law, Spokane, Washington For Respondents: I. James Heckathorn,Murphy,Robinson, Heckathorn & Phillips,Kalispell, Montana

c Filed:Justice Terry N. Trieweiler delivered the opinion of the Court. James and Betty 

### halli in or filed a complaint in the District Court for the Nineteenth Judicial District in Lincoln County in which they sought damages for an alleged breach of a suretyship contract. The Challinors' subsequent motion for substitution of judge was declared void on the basis that it was untimely. In an order issued onAugust 19, 1993,the court granted summary judgment in favor of Glacier National Bank and Remick. The Challinors appeal. We reverse and remand. The dispositive issue on appeal iswhether the DistrictCourt erredwhen it dismissed the motion forsubstitutionof the District Court Judge. This litigation arises out of a road construction contract between the United States Forest Service and James Challinor. In connection with this contract, Glacier National Bank served as surety forChallinor, guaranteeing performanceby Challinor to the Forest Service. The surety agreementwas secured by mortgages on James and Betty Challinorslhome and land. In 1984,the Forest Servicedeclared theChallinors indefault and made demand on the bank for payment pursuant to the surety agreement. Inresponse,GlacierNational Bankperformed the surety obligation. In the first of three related actions, the Challinors commenced a civil action in 1986 against Glacier National Bank in which they alleged that the bankbreached the suretyagreement when it made payment to the Forest Service over the Challinorsl

2objection and without raising available defenses. This actionwas later dismissed by the DistrictCourt due to the failure of either party to appear when the casewas called by the court. In 1987, the bank commenced a mortgage foreclosure action against the Challinors to obtain reimbursement for payments made under the surety obligation. The Challinors attempted to raise a suretyship defense at the trial of this matter in 1990, but the court disallowed the defense for the reason that it had not been pled, was not disclosed in any pretrial discovery nor at the pretrial conference, and was not properly before the court. This Court affirmed theexclusionof a suretyshipdefense in thataction in GlacierNationulBankv.Challinor (1992),253 Mont. 412, 833 P.2d 1046. On November 28, 1990, the Challinors filsd an additional complaint,which is the subject of this appeal, against Glacier National Bank and Remick in which they claimed breach of a suretyship contract due to the bank's alleged failure to assert availabledefenses when paymentwas demandedby the Forest Service. A summons was served on Remick in this action on January 9,1991. On February 26, 1991,summonswas served on GlacierNational Bank. Three days later, on March 1, 1991, the Challinors filed a motion for substitution of judge pursuant to S 3-1-804, MCA. The District Court Judge did not withdraw from the case and issued an

of judge "is declared void as untimely." Thereafter, the bank moved for summary judgment based on the law of compulsory counterclaim and resj~uticaru. The court held that this Court'sdecision in Glac~er .Liinonai Bank i.. Chall~izor, 833 P.21 1046, "was dispositive with respect to the suretyship question raised in the instant case." On this basis, the District Court granted summary judgment in the bank's favor. This appeal followed. The Challinors contend that the court erred when it denied theirmotion for substitutionof judge,andwhen itgranted summary judgment based on compulsory counterclaim and 

### resjzidicczfa

## . However,

we find the issue of judicial substitution dispositive in this case, and address only that matter. Montana law entitles each adverseparty ina civil or criminal

case to one substitution of a district court judge. Section 3-1-804,MCA. Once a timelymotion has been filed,the substituted judge iswithout jurisdiction to act on themerits of the cause or todecide legal issues therein. Section 3-1-804(1)(a)

### ,MCA; 

### Taylor

v.Matejovs@ (1993)

### , 261 Mont. 514, 517, 863 P.2d 1022, 1024. Section 3-1-804(1) (c)

### , MCA, requires that the motion be brought within the following time: When a judge is assigned to a cause for twenty (20) consecutive days after service of summons 

## . . 

# . and no motion for substitution of judge has been filed within said time period, the right to move for substitution of a judge shall be deemed waived. The judge for whom substitution is sought has jurisdiction to determine timeliness, and if the motion for substitution is untimely, shall issue an order declaring themotion void. Section 3-1-804(1)(e)

## , MCA. In this instance, the court declared the motion for substitution,filed onMarch 1,1991,void because summonshad beenserved on defendant Remick on January 9, 1991, more than 20 days previous. The Challinors,however, contend that their motion for substitution was timely because it was filed only three days after

summons was served on the co-defendant, Glacier National Bank. They assert that in a case such as this where there are multiple defendants,the time period formoving for a substitutionof judge should run fromthe date serviceof summons is complete ratherthan from the date the first defendant is served. The bank responds that the judicial substitution statute should be interpreted to require a plaintiff to move for substitution within 20 days after the first defendant is served. The timeperiod for one ormore defendantsto exercise the right to substitutionwould then vary depending on the time each defendant is served. Section 3-1-804, MCA, which entitles each party in a proceeding to one substitutionof a judge, was created by an order of this Court dated June 17, 1987. As written, the statute sets forth a time period for exercising this right which is 20 consecutivedays "after serviceof summons." While the statute is not clear with regard to multiple defendants, we hold that this phrase contemplates that thetime should run fromthecomaletionof service of process. A reasonable interpretation of the statute, which would also ensure the most consistent application of this provision, is that the right of any party named in the original complaint,or any complaint amendedwithout order of the court, to move for judicial substitution is not waived until a judge is assigned to a cause for 20 consecutive days after all of the
5defendants have been served. Consequently, a motion made by any party within 20 days after completion of service of process is timely. While the concerns expressed in the dissent are noted and well-taken, it is the opinion of themajority that those concerns are best addressed by a prospective rule change, rather than an after-the-fact interpretation which adds limitations on disqualification that had not previously been in the rule. Inthis case, the Challinors timelymoved for substitutionof the District Court Judge three days after service of process was completed. Therefore, we conclude that the court erred when it dismissed the motion and did not allow the Challinors to exercise their statutory right to substitution of the District Court Judge. Pursuant to S 3-1-804(1)(a), MCA, once the motion for substitution of judge was timely filed,Judge Keller was without jurisdiction to act on the merits of the case, including considerationof thebank's motion forsummary judgment. 

### Taylor, 863 P.2d at 1024. Because the court was without jurisdiction to consider the merits of the bank's arguments, we decline to review the merits of the District Court's order granting defendants' motion for summary judgment. Accordingly, the order granting the bank's motion for summary judgment is vacated and this matter remanded for a new hearing after a substitution of judge.We concur:

chief Justice



# 1 Justices
JusticeWilliam E. Hunt,Sr.,didnotparticipate inthisdecision.Justice Fred J. Weber dissents as follows: Following are pertinent provisions of 

### 5 3-1-804, MCA, which should be considered on the issues in this case: 3-1-804. Substitution of district judges.



# .... 1. A motion for substitution of a district judge may be made by any party to a proceeding only in the manner set forth herein. In a civil or criminal case, each adverse party, including the state, is entitled to one substitution of a district judge. 

## *... (b) 

# . . 

# . It shall be the duty of the clerk of court to stamp the name of the judge towhom the case is assigned on the face of the initial pleading, complaint, order to show cause, or information, and all copies thereof. (c) When a judge is assigned to a cause for (20) consecutive days after service of summons, or ten (lo) daysafter serviceof an orderto showcause,information or other initiating document, and no motion for substitution of judge has been filed [within] said time period, the right to move for substitution of a judge shall be deemed waived. 

# . . . After the time period shall have run as to the original parties to the proceeding, no party who is joined or intervenes thereafter shall have any right of substitution,except that one third party defendant who is not an original party in any pending case may have a right of one substitution within twenty (20) days after the service upon the third party defendant of a third party complaint.



# .... (e) Anymotion forsubstitutionwhich isnottimely filed is void for all purposes. The judge for whom substitution is sought shall have jurisdiction to determine timeliness,and if themotion for substitution is untimely, shall make an order declaring the motion void. The following are key points to be considered in this case: motion for substitutionmay be made "onlyn in themanner set forth in the rule. In a civil case eachparty is entitled only to "one" substitution. The clerk of court stamps the name of the judge to whom the case is assigned on the face of the complaint with theres-~lt that the Zhallinorshad knowledge of the judge to >~;?~nz~ the

case was assigned from the theof filing of their conplaint. In substance the majority opicion concludes: A reasonable interpretation of the statute,which would also ensure the most consistent application of this provision, is that the right of any party 

### . . . to move for judicial substitution is not waived until a Sudge is asslgned to a cause for 20 consecutivedays after zLllof those defendant have been served. I disagree with the conclusion that the foregoing is a reasonable interpretation of 1 3-1-804,MCA. On November 23, 1990, the plaintiffs Challinors filed their complaint and had knowledgeon thatdate that Judge Kellerhad been assigned the case. On January 9, 1991, Challinors caused the

sumaons to be served on defendant Remick. On February 26, 1991, Challinors caused the summons to be served on Glacier Na"ronal Bank At issue here is the time allowed toplaintiffs Challinors to file their motion for substitution. Because the rule triggering date is thedate of service of summons,even though Challinorsknew the identity of the assigned judge on November 23, 1993, the earliestdate onwhich the rule could be applied to them is 20days after the service of sumnons on Remick on January 9, L991. I suggest that the reasonable interpretation of the rule is that ~,vlthin 20 daysafter the summonswas served on Remick onJanuary 9, 1991, the Challinors and Remick were required to file any aotrnn for substitution. I further suggest that within 20 days after February 26, 1991, when sumnons was served on the Bank, it was repired to file any motion for substitution.The foregoing interpretation is consistent with the statc:e

r-i- ,).,--.. : mi ex~3asizes that a motion ~.ust bemade as provided only ir the rala. T?,is interpretation is fair to plaintiffs challinors as it gives them from Novenber 28, 1990 toJanuary 29, 1991within -+jhich t~nake anorion for substitution. As todefendant Reinick he %ou:d have u~til January 29, 1991, The Back after beinq serve2 cn Febrcary 26, 3.991, would have until March 18, 1991, in which to file a motion. The rule is already more than fair to plaintiffs such as the Challinors as they are granted 20 days after service of summons, even though they have had knowledge of the judge to whom the case
was assigned from the date of the filing of their complaint. I emphasize that the majority opinion essentially eliminates the prinary purpose of the rule which is to require substitution to takeplace promptly and thereby eliminate that which isnow all3weri under the majority opinion--in a multi-defendant case, all the plaintiff need do iswait to serve one named defendant orJohn Doe defendant, and he then preserves the right to move for substitution of the judge until any time he chooses in the course of the litigation. The obvious purpose of the rule is to keep from having the rule interpreted as the majority has done. The result of the najority opinion isthat where one named party hasnot been server3, the plaintiff or plaintiffs and all defendants may control the lirrlqation by moving to substitute a judge at any stage of the proceeding, including at the time of trial. Obviously nothing of that nature was contemplated under the rule.

## - rrcz the vording of themajoriry opinion, it appears that the majority ray have been influenced by the fact that within three clays after the service on the Bank, the Challinors did file a ~.otion for substitutionwhich was three days after the service on the Bank and only a relatively short time after the service on Eenick. If that time frame influenced the majority, J would point cut that undermy suggested interpretation of the rulewhich would require the Challinors to file their motion by January 29, 1991, they were given 60 days from the date on which they acquired the knowledge of the name of the district judge to whom their case was assigned. Sixty days is an ample time. Iwould affirm the determination of the District Court.

Chief Justice J. A. Turnage concurs in the forwg dissent. ./ 

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