No. 13592 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, on the relation 

of GERALD N. LEAVITT, and ELEANORA E. 

LEAVITT , 

Relators, 

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE 

COUNTY OF YELLOWSTONE, and THE HON. NAT ALLEN, 

Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relators: 

Poore, McKenzie, Roth, Robischon & Robinson, 

Butte, Montana 

Allen McKenzie argued, Butte, Montana 

For Respondents: 

Crowley, Haughey, Hanson, Gallagher and Toole, 

Billings, Montana 

Stephen Foster argued and Robert Edd Lee argued, 

Billings, Montana 

=-., 

Filed: F??E ?? ?.gn 

Submitted: January 25, 1977 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Relators Gerald N. Leavitt and Eleanora E. Leavitt seek 

a writ of supervisory control from this Court: (1) To require 

the presiding judge in civil cause No. 59760 in the district 

court of Yellowstone County to surrender jurisdiction, and (2) to 

annul all orders made by the presiding judge in that case on 

November 15, 1976. 

The civil case in the district court to which this 

application is directed is complex, voluminous, and long standing. Plaintiffs in the district court are John Slovak, Mary K. 

Slovak, Paul Slovak, Mary J. Slovak, Andrew Slovak, and Ann E. 

Slovak. Defendants are the relators here, Gerald N. Leavitt 

and Eleanora E. Leavitt, husband and wife; Kentucky Fried Chicken 

of Montana, a corporation; Montana Franchising, Inc., a corporation; Fred C. Haas, Jr.; and Raymond C. Whitaker. 

The action in district court essentially involves an 

alleged breach of contract and fraud arising out of the sale of 

the Kentucky Fried Chicken franchise for Montana by the Slovaks 

to Kentucky Fried Chicken of Montana, a corporation (KFCM). 

The case commenced with the filing of the original complaint by the Slovaks on April 19, 1972. Thereafter for more 

than four years there ensued various pleadings, motions, negotiations, pretrial discovery, disqualification of judges, an 

appeal to this Court on the question of venue, removal and remand to and from the federal court, and miscellaneous matters 

unnecessary to detail in this opinion. 

On June 3, 1976, the district court set the case for 

trial on September 22. An informal conference between counsel 

and the presiding judge was held on August 27 at which time the 

following events transpired: (1) Slovaks' attorney gave notice 
of his intention to file an amended complaint, (2) counsel for 

Gerald Leavitt, KFCM and Montana Franchising, Inc., a corporation (MFI) indicated he did not intend to disqualify the 

presiding judge, and (3) rulings were made on various matters 

pertaining to pretrial discovery. 

On September 8 the district court entered an order: 

(1) Vacating the trial setting of September 22 and resetting 

trial for November 3, and (2) setting a pretrial conference for 

October 22. 

On September 29 the Slovaks served a copy of their amended 

complaint on the attorney of record for Gerald Leavitt, KFCM, 

and MFI. On October 5 the amended complaint was personally served 

on both Leavitts in Las Vegas, Nevada by a deputy sheriff. The 

principal difference between the original complaint and the amended 

complaint was: (1) The amended complaint added Eleanora E. Leavitt, 

wife of Gerald N. Leavitt, as a party, and (2) the amended complaint plead damages more specifically and with particularity. 

The basic theory of the case remained unchanged. 

On October 19 the Leavitts filed a removal petition with 

the United States District Court in Billings, Montana, seeking 

removal of the action to federal court on the ground of diversity 

of citizenship. On November 1, United States District Judge 

James F. Battin remanded the case back to the state district court 

and subsequently assessed attorneys' fees against the Leavitts for 

wrongful removal. 

On the same date, November 1, the presiding judge in the 

Yellowstone County district court entered an order: (1) Denying 

the pending motion to dismiss previously filed by the Leavitts, 

(2) directed the defendants to answer plaintiffs' amended complaint by 9:00 a.m. on November 3, and (3) directed the trial to 

commence at 10:OO a.m. on November 3 as previously ordered. According to counsel for Leavitts, notice of entry of this order was 
communicated to them by telephone at about 4:50 p.m. on November 

1. The following day, November 2, was a legal holiday. 

On November 3 the following occurred, not necessarily 

in this order: (1) The Leavitts filed an affidavit of disqualification against the presiding judge, (2) the presiding judge 

struck the affidavit of disqualification because it was filed 

less than 15 days prior to trial, (3) the clerk entered the default of KFCM and MFI for failure to answer or otherwise plead 

to the amended complaint, as ordered by the court, and (4) the 

Leavitts filed an application for supervisory control with this 

Court seeking to have the order of the district court of November 3 vacated. We heard the Leavitts' application, stayed 

proceedings in the district court, and granted Leavitts five days 

in which to apply to the district court for the relief sought. 

On November 5 the Slovaks filed a motion for partial 

summary judgment against both Leavitts and prayed that any judgment against KFCM and MFI be likewise entered against Leavitts. 

On November 8 Leavitts filed: (1) A second affidavit of 

disqualification against the presiding judge, and (2) a separate 

motion to vacate the default against KFCM and MFI and to dismiss 

the amended complaint against KFCM and MFI for insufficiency of 

service of process and failure to state a claim. 

A hearing was held on these pending matters on November 

15. Thereafter the district court entered its order on the same 

date which, insofar as is pertinent to this proceeding, provided: 

(1) The motion to set aside all orders of November 3 by the 

district court was denied, (2) the motion to set aside the district court's orders striking the affidavit of disqualification 

was denied, and (3) Slovaks' motion for partial summary judgment 

was granted. Additionally the recess in the trial was extended, 

the Leavitts were ordered to answer the amended complaint by 

November 19, and a conference between court and counsel was set 
for November 19. 

Thereupon Leavitts filed the instant application for a 

writ of supervisory control with this Court to test the validity 

of the district court's orders of November 15. An adversary 

hearing was held and the matter submitted for our decision. 

Three issues are presented for decision: 

(1) Is supervisory control a proper remedy? 

(2) Should the presiding judge be required to relinquish 

jurisdiction? 

(3) Should the district court's orders of November 15 

be annulled? 

We hold that supervisory control is a proper and available remedy to determine the relief sought by Leavitts. We have 

previously held that supervisory control is a proper remedy to 

review an order striking two defenses and granting plaintiff 

summary judgment on the issue of liability because the hardship 

on relator in defending the remaining issue of damages rendered 

the remedy by appeal wholly inadequate. State ex rel. Great Falls 

National Bank v. District Court, 154 Mont. 336, 463 P.2d 326, 

and cases cited therein. We have also held that supervisory 

control was a proper remedy to cut through a procedural morass 

and enable prompt litigation of the substantive rights of the 

parties on the merits. State ex rel. Amsterdam Lbr. Co. v. Dist. 

Ct., 163 Mont. 182, 516 P.2d 378. Here we have an order defaulting two defendants, an order granting partial summary judgment against some of the defendants, and a procedural tangle 

involving the attempted disqualification of the presiding judge, 

removal and remand of the case to and from federal court, and 

a number of orders whose validity is in controversy. Under these 

circumstances, we do not consider the remedy of appeal following 

trial as to some of the defendants an adequate remedy. Hence we 

accept jurisdiction of relators' application for a writ of 
supervisory control. 

The attempted disqualification of the presiding judge 

requires no extended discussion. The presiding judge has been 

in jurisdiction since January 24, 1973. As late as August 27, 

1976, counsel indicated he did not intend to disqualify the 

presiding judge. The first affidavit of disqualification 

against the presiding judge was filed on November 3, 1976, the 

day of trial. 

We have previously condemned such practice. State ex 

rel. Kidder v. Dist. Ct., 155 Mont. 442, 472 P.2d 1008. Here 

the Leavitts argue that the affidavit of disqualification was 

timely filed because it was filed immediately after receiving 

the district court's order of November 1, citing Wheeler v. Moe, 

163 Mont. 154, 515 P.2d 679, in support. Leavitts also contend 

that the presiding judge arranged the calendar to circumvent 

the disqualification statute. 

The controlling statute, section 93-901, R.C.M. 1947, 

as amended, provides in pertinent part: 

" * * * If there be more than one judge * * * 

in any district in which said affidavit is 

made and filed, upon the first disqualification * * * another judge * * * residing in the district * * * must be called in to preside * * *; 

upon the second or any subsequent disqualification, a judge * * * of another district of the 

state must be called in to preside * * * when 

another judge * * * has assumed jurisdiction * * * 

the clerk of the court * * * shall at once notify 

the parties or their attorneys of record * * * of 

the name of the judge * * * called in * * *. 

Such second or subsequent affidavit of disqualification shall be filed with the clerk of the 

court * * * within three days after the party or 

his attorney * * * filing such affidavit, has 

received notice as to the judge * * * assuming 

jurisdiction * * *." (Emphasis added.) 

Here all parties except Eleanora Leavitt had lost their 

right to disqualify the presiding judge in January, 1973. At 

the time Eleanora Leavitt was made a party by the filing and 

service of the amended complaint, the trial date of November 3 
had been set. She had the right to file a disqualifying 

affidavit up to 15 days prior to trial. That time expired 

on October 19, the fifteenth day prior to trial. The attempted 

disqualification on November 3, the day of trial, came much 

too late and was properly stricken by the presiding judge. The 

disqualification statute was not intended as an instrument to 

secure delays or postponements of trial. State ex rel. Jacobs 

v. Dist. Ct., 48 Mont. 410, 138 P. 1091. 

The same is true of the second affidavit of disqualification filed on November 8. The right of disqualification once 

lost cannot be revived by a continuation of the trial for the 

benefit of relators as occurred here. 

The final issue concerns the default of KFCM and MFI and 

the partial summary against both Leavitts. Counsel for Leavitts 

argues that he never agreed to accept service of the amended 

complaint on behalf of KFCM and MFI, that the two corporations 

were never served, and that entry of default against them deprived 

them and Leavitts of their property without due process of law. 

Counsel for Slovaks contend that the amended complaint was properly 

served upon the two corporations by service on their counsel, 

that no responsive pleading had been filed by the two corporations 

within the time allowed by law, and the defaults against the two 

corporations were properly entered for failure to file a responsive pleading as well as failure to appear for trial. 

We find that service of the amended complaint was properly 

made on KFCM and MFI. The amended complaint was served on counsel 

of record for the two corporations. Whether counsel agreed to 

accept service on their behalf is immaterial. Service of the 

amended complaint is required to be made by service on the attorney 

in this case pursuant to Rule 5(b), M.R.Civ.P., which provides 

in pertinent part: 
"Whenever under these rules service is required 

or permitted to be made upon a party represented 

by an attorney the service shall be made upon the 

attorney unless service upon the party himself 

is ordered by the court. * * *" 

The court did not order service upon the parties themselves, 

KFCM and MFI, in this case. Hence, they were technically in 

default for failure to file a responsive pleading when the district court entered their default on November 3. Rule 15(a), 

M.R.Civ.P. 

However, the rapidity of events on November 1 and November 3 justify vacating the defaults in our opinion. Although 

the time for filing a responsive pleading had expired before 

removal of the case to federal court, no default against the two 

corporations had been entered. None could be entered between 

October 19 and November 1 when the case was remanded to the district court of Yellowstone County. Counsel for the two corporations received no notice of the remand until about 4:50 p.m. on 

November 1 when the clerk of the state district court called him 

on the telephone and advised him of the order of the court which 

directed, among other things, that the defendants answer the 

amended complaint by 9:00 a.m. on November 3. Following the 

events of November 3, default against the two corporations was 

entered on November 5, prior to the time we granted the Leavitts 

in which to seek relief in the district court from the orders of 

November 3. 

In vacating the defaults of KFCM and MFI, we have considered the fact that Leavitts are the alter ego of the two corporations and are personally liable for any judgments against 

the two corporations under the terms of an assignment dated 

March 31, 1972. Thus any default against the two corporations 

has the legal effect of a default against Leavitts on at least 

part of the Slovaks' claims. 

We consider the entry of the partial summary judgment on 
the same basis. It is based on the personal liability of 

Leavitts under the assignment of March 31, 1972, and the dissolution of KFCM. It is based on the default of KFCM. As we 

have vacated the default of the two corporations, the partial 

summary judgment against the Leavitts based upon the derivative 

liability of the two corporations must be vacated. 

We have considered the other arguments of the parties 

and since we find they would not alter our decision here, we 

find it unnecessary to discuss them point by point in this opinion. 

For the reasons set forth above, we hold that the presiding judge retains jurisdiction of this case; we vacate the 

default taken against KFCM and MFI and grant them and Leavitts 

10 days in which to file a responsive pleading to the amended 

complaint; we vacate the partial summary judgment heretofore 

entered without prejudice to renewal of the motion therefor; 

and we remand the case to the district court of Yellowstone 

County for further proceedings not inconsistent with this opinion. 

Let remittitur issue forthwith. 

.* 

Justice 

We con ur: 4 /