Wheeler v. Moe, 12443

• Decision Date: 08 November 1973
• Docket Number: No. 12443,12443
• Citation: 163 Mont. 154,515 P.2d 679
• Parties: Joseph WHEELER, Jr., Plaintiff and Appellant, v. John MOE et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 679

515 P.2d 679

163 Mont. 154

Joseph WHEELER, Jr., Plaintiff and Appellant, v. John MOE et al., Defendants and Respondents.

No. 12443.

Supreme Court of Montana.

Submitted Sept. 13, 1973.

Decided Nov. 8, 1973.

Marvin G. Ping argued, Missoula, for plaintiff and appellant.

Garlington, Lohn & Robinson, Missoula, Gregory L. Hanson argued, Missoula, for defendants and respondents.

JAMES T. HARRISON, Chief Justice.

Plaintiff instituted this action for damages against the Missoula County sheriff and four deputies; the Missoula county attorney and two deputies; the insurance company and seven John Does. The district court of the fourth judicial district, Missoula County, dismissed plaintiff's complaint with prejudice. It is from the order dismissing the complaint that plaintiff appeals.

Plaintiff filed his complaint on October 20, 1972. On November 3, 1972, defendants appeared by way of a motion to dismiss, supported by a brief, alleging failure of plaintiff's complaint to state a claim against defendants upon which relief could be granted.

By order of the district court dated November 13, 1972, plaintiff was given until November 20 to file a brief in opposition to the motion to dismiss. Plaintiff's counsel in plaintiff's brief on appeal and at oral argument stated that when he appeared at the office of the clerk of the district court on the morning of November 20 to file plaintiff's brief in opposition to the motion to dismiss, he learned that the matter had been set for oral argument that morning. Pursuant to the district court's minute entry of November 20 the hearing on the motion to dismiss was continued to November 27, 1972.

On November 24, 1972, plaintiff filed an affidavit disqualifying Judge Jack L. Green and moved for the substitution of another judge. No judge was called in to assume jurisdiction of the matter.

On November 27, 1972, Judge E. Gardner Brownlee, presiding in Judge Green's stead, entered the following order:

'Gregory L. Hansen, attorney for defendants, came into Court, this being the time set for hearing defendants' Motion to Dismiss. No appearance was made on behalf of the plaintiff. Thereafter, good cause appearing to the Court, Defendants' Motion is granted, and IT IS ORDERED that plaintiff's Complaint be and the same is hereby dismissed with prejudice.'

In his appeal from this order, plaintiff presents three issues for review.

(1) Did the district court commit error under the procedures to be followed under Rule 4, Rules of Practice of the District Court of the fourth judicial district?

(2) Was the dismissal of plaintiff's complaint with prejudice void for want of jurisdiction

by virtue of the court's failure to transfer jurisdiction to another judge upon the timely filing by plaintiff of an affidavit of disqualification?

(3) Did the district court err in granting defendant's motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., and in dismissing plaintiff's complaint with prejudice?

In light of the second issue presented by plaintiff and our discussion thereof which follows, it is not necessary to address ourselves to the first issue at this time. Whether or not there was error under Rule 4, Rules of Practice of the District Court of the fourth judicial district, need not be resolved in view of our conclusion hereinafter.

Section 93-901, R.C.M.1947, provides in part:

'Any justice, judge, or justice of the peace must not sit or act as such in any action or proceeding:

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'4. When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge. Such affidavit may be made by any party to an action, motion, or proceeding, personally, or by his attorney or agent, and shall be filed with the clerk of the district court in which the same may be pending. * * * In all other cases the affidavit must be filed at least fifteen (15) days before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding (provided such party shall have had notice of the hearing of such action, motion, or proceeding for at least the period of fifteen (15) days and in case he shall not have had notice for such length of time, shall file such affidavit immediately upon receiving such notice). Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding, but the provisions of this section do not apply to the arrangement of the calendar, the regulation of the order of business, the power of transferring the action or proceeding to some other court, not to the power of calling in another district judge to sit and act in such action or proceeding, providing that no judge shall so arrange the calender as to defeat the purposes of this section. * * * If there be more than one judge in any judicial district in which said affidavit is made and filed, upon the first disqualification of a judge in the cause, another judge, residing in the judicial district wherein the affidavit is made and filed, must be called in to preside in such action, motion or proceeding * * * when another judge has assumed jurisdiction of an action, motion, or proceeding, the clerk of the district court in which the same was pending, shall at once notify the parties or their attorneys of record in the same, either personally or by registered mail, of the name of the judge called in, or to whom such action, motion, or proceeding was transferred. * * *'

The record does not show that a hearing date was set prior to the continuance of the hearing to November 27, 1972. Written notice of the November 27, 1972, hearing date was sent to counsel for both sides by the clerk of the district court on November 20, 1972. Counsel had less than fifteen days notice of the hearing date scheduled on defendants' motion. Pursuant to the statute plaintiff had to file his affidavit of disqualification immediately upon receiving such notice.

Even though it is not presented as an issue here, we note that the filing of the affidavit of disqualification on November 24, 1972, was timely within the provisions of the statute. Counsel for plaintiff received notice of the hearing on or about November 21, 1972. Plaintiff resided in Lake County necessitating a trip to Missoula to sign the affidavit. Court was closed on Thursday, November 23, 1972, in observance of the Thanksgiving Holiday.

After the affidavit was filed, Judge Green was without jurisdiction to act further in the matter except in those limited instances outlined in the statute. The record does not disclose that another judge, including Judge Brownlee, was called in as provided for in the statute. No notice was given to the parties or their attorneys that another judge had been called in or that the action had been transferred to another judge. Judge Green was without authority to act, and Judge Brownlee, presiding in Judge Green's stead and not having been called to assume jurisdiction, was also without authority to act in the matter.

Despite this holding we feel it necessary to address ourselves to plaintiff's third issue for the reason that the district judge, while without jurisdiction to do so, achieved the only possible result. The complaint should properly be dismissed with prejudice.

Rule 12(b)(6), M.R.Civ.P. provides:

'Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion. * * * (6) failure to state a claim upon which relief can be granted * * * A motion making any of these defenses shall be made before pleading if a further pleading is permitted.'

In his complaint plaintiff alleged that he was a member and resident of the Confederate Salish and Kootenai Tribes of the Flathead Indian Reservation, Montana, and that pursuant to license granted by the Tribes, he was operating a retail store on lands of the Tribes held in trust by the...