No. 93-490 

IN THE SUPREMZ: COURT OF THZ STATE OF MONTANA 

1994 

JAMES P. CHALLINOR and 

BETTY E. CHALLINOR, 

Plaintiffs and Appellants, 

GLACIER NATIONAL BANK and 

DOUGLAS B. REMICK, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Russell K. Jones, Attorney at Law, 

Spokane, Washington 

For Respondents: 

I. James Heckathorn, Murphy, Robinson, 

Heckathorn & Phillips, Kalispell, Montana 

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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 on August 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 is whether the District Court 

erred when it dismissed the motion for substitution of 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 for Challinor, guaranteeing performance by Challinor to the 

Forest Service. The surety agreement was secured by mortgages on 

James and Betty Challinorsl home and land. 

In 1984, the Forest Service declared the Challinors in default 

and made demand on the bank for payment pursuant to the surety 

agreement. In response, Glacier National Bank performed 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 bank breached the surety agreement when 

it made payment to the Forest Service over the Challinorsl 

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objection and without raising available defenses. This action was 

later dismissed by the District Court due to the failure of either 

party to appear when the case was 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 the exclusion of a suretyship defense in that action 

in Glacier NationulBank v. 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 

available defenses when payment was demanded by the Forest Service. 

A summons was served on Remick in this action on January 9, 1991. 

On February 26, 1991, summons was served on Glacier National 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 res j~uticaru. The court held that this Court's 
decision 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 

their motion for substitution of judge, and when it granted summary 

judgment based on compulsory counterclaim and res jzidicczfa . However, 

we find the issue of judicial substitution dispositive in this 

case, and address only that matter. 

Montana law entitles each adverse party in a civil or criminal 

case to one substitution of a district court judge. Section 

3-1-804, MCA. Once a timely motion has been filed, the substituted 

judge is without jurisdiction to act on the merits of the cause or 

to decide 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 the motion void. Section 

3-1-804 (1) (e) , MCA. 

In this instance, the court declared the motion for 

substitution, filed on March 1, 1991, void because summons had been 
served 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 for moving for a substitution of judge 

should run from the date service of summons is complete rather than 

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 time period for one or more defendants to exercise the right to 

substitution would then vary depending on the time each defendant 

is served. 

Section 3-1-804, MCA, which entitles each party in a 

proceeding to one substitution of 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 

consecutive days "after service of summons." While the statute is 

not clear with regard to multiple defendants, we hold that this 

phrase contemplates that the time should run from the comaletion of 

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 amended without 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 

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defendants 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 the majority 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. 

In this case, the Challinors timely moved for substitution of 

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 

consideration of the bank's motion for summary 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 

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Justices 

Justice William E. Hunt, Sr., did not participate in this decision. 
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 to whom 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) 

days after service of an order to show cause, 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) Any motion for substitution which is not timely 

filed is void for all purposes. The judge for whom 

substitution is sought shall have jurisdiction to 

determine timeliness, and if the motion 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 substitution may be made "onlyn in the manner set forth 

in the rule. In a civil case each party 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 the 
res-~lt that the Zhallinors had knowledge of the judge to >~;?~nz~ the 

case was assigned from the the of 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 consecutive days after zLll of 

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 knowledge on that date that Judge Keller had 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 to plaintiffs Challinors to 

file their motion for substitution. Because the rule triggering 

date is the date of service of summons, even though Challinors knew 

the identity of the assigned judge on November 23, 1993, the 

earliest date on which the rule could be applied to them is 20 days 

after the service of sumnons on Remick on January 9, L991. I 

suggest that the reasonable interpretation of the rule is that 

~,vlthin 20 days after the summons was served on Remick on January 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 be made as provided only ir the 

rala. T?,is interpretation is fair to plaintiffs challinors as it 

gives them from Novenber 28, 1990 to January 29, 1991 within -+jhich 

t~ nake a norion for substitution. As to defendant 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 

take place promptly and thereby eliminate that which is now all3weri 

under the majority opinion--in a multi-defendant case, all the 

plaintiff need do is wait to serve one named defendant or John 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 is that where one named party has not 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 the majoriry 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 substitution which 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 under my suggested interpretation of the rule which 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. 

I would affirm the determination of the District Court. 

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

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y- .- ,~ A/ ' .&-'5-/i)~rJL~CCcf ,,,, 

Chief Justice ,,/j ,/ 

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