In Re Woodside-Florence Irr. Dist. , 121 Mont. 346 ( 1948 )


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  • I agree with the elementary principles of law stated in the majority opinion, but do not agree that they are applicable to the question before the court, or that the authorities cited support the conclusions reached, namely, that a party filing a disqualifying affidavit under the provisions of subsection 4 of section 8868, Revised Codes of Montana 1935, may not waive the disqualification and by withdrawal of the affidavit remove the disqualification.

    The opinion is predicated upon the assumption that the question involved is one of jurisdiction and cannot be waived. At the outset the opinion quotes and cites authorities supporting the well established rule of law that if a court has no jurisdiction of the action or subject matter such jurisdiction cannot be conferred by consent, agreement or conduct of the parties. This general rule of law, to which there can be no dispute, and the cases cited to support it, relate to the court as a tribunal, and not to the personnel that may from time to time preside in the court. This distinction was clearly recognized in the case of In re Weston, 28 Mont. 207,72 P. 512, 513, where the court had under consideration the disqualification of *Page 360 a judge for imputed bias, under an act of the Eighth Legislative Assembly of Montana, designated as "Substitute for Senate Bill No. 71." There the court said: "It is manifest from the terms employed that the act does not purport to affect the district court — does not intend to disarrange the judicial machinery or change the place of trial, which can only be effected by a change of venue — but seeks merely to change the personnel of the presiding officer. The act is aimed at the individual, not at the constituent part of the lower court, for a change of judge would not change the court. For all judicial purposes it would remain the same after the change as before. Hedrick v. Hedrick,28 Ind. 291."

    Jurisdiction must be either of the subject matter, or of the person. The extent of the former is to be determined by the law of the sovereignty; the latter is a question of fact. As to the jurisdiction of the person, although a party defendant be not within the jurisdiction of the court, he may waive the advantage and does so if he appears generally in the action and pleads to the complaint, Merchants' Heat Light Co. v. James B. Clow Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488.

    In the case of Hobbs v. German-American Doctors, 14 Okla. 236,78 P. 356, 357, the court said, as to a defendant within the jurisdiction of the court: "The law provides the manner by which the plaintiff may have the defendant brought into court, and without his consent, subjected to the jurisdiction and power of the court to bind him by its orders and judgments. But these provisions are for the benefit of the defendant, and he may waive them or insist on them, as suits his convenience."

    In the matter of jurisdiction the law is clear that while the court's jurisdiction over an action or subject matter cannot be conferred by consent, jurisdiction of the person can be conferred by consent or conduct. In the latter instance the court follows the general rule that where a privilege is personal and does not concern public policy, it may be waived.

    While there are some exceptions, it is also the general well *Page 361 established rule that where, for specific existing causes enumerated in the statute, a judge is disqualified to preside in any action or proceeding, the right of a judge so disqualified to preside cannot be either expressly or impliedly waived. Oakley v. Aspinwall, 3 N.Y. 547; People v. Whitridge, 144 A.D. 493,129 N.Y.S. 300; Sigourney v. Sibley, 21 Pick., Mass., 101, 32 Am. Dec. 248; Horton v. Howard, 79 Mich. 642, 44 N.W. 1112, 19 Am. St. Rep. 198; Chambers v. Hodges, 23 Tex. 104; City of Dallas v. Peacock, 89 Tex. 58, 33 S.W. 220; Gaer v. Bank of Baker,111 Mont. 204, 107 P.2d 877.

    While there is some conflict in the decisions, the same general rule applies where for reasons of public policy, for example, where one or more of the parties are related to the judge or where he is personally interested in the outcome of the litigation, a judge is disqualified, the disqualification cannot be waived either expressly or impliedly. Lindsley v. Lindsley, Tex. Civ. App. 152 S.W.2d 415; State ex rel. Richardson v. Keen, 185, Okla. 539, 95 P.2d 120; State v. Ledbetter,156 Okla. 23, 9 P.2d 728; Kline v. State, 194 Ind. 334,142 N.E. 713; Washoe Copper Co. v. Hickey, 46 Mont. 363, 128 P. 584.

    In all jurisdictions where the right to disqualify a judge is the personal privilege of a party to litigation, as distinguished from the disqualification of a judge by operation of law or public policy, it is uniformly held that the privilege may be waived. Washoe Copper Co. v. Hickey, supra; State v. Ham, 24 S.D. 639,124 N.W. 955, Ann. Cases 1912A, 1070; State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179; Burns v. Burns, 27 Ohio Cir. Ct. R. 149; Kline v. State, supra; State ex rel. Richardson v. Keen, supra; People v. Whitridge, supra. In the last cited case, which involves the disqualification of a judge by reason of his interest in the case, the court said [144 A.D. 493,129 N.Y.S. 302]: "Such an interest goes to the very jurisdiction of the judge to sit as such, and, while parties in civil actions may by stipulation waive any right which is personal to themselves, they cannot by consent confer *Page 362 jurisdiction to act as a judge upon one whom the statute says shall have no such jurisdiction."

    Section 8868, Revised Codes of Montana 1935, provides as follows:

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

    "1. To which he is a party, or in which he is interested;

    "2. When he is related to either party by consanguinity or affinity within the sixth degree, computed according to the rules of law;

    "3. When he has been attorney or counsel for either party in the action or proceeding, or when he rendered or made the judgment, order, or decision appealed from;

    "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 at least five days before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding (providing such party shall have had notice of the hearing of such action, motion, or proceeding for at least the period of five days and in case he shall not have had notice for such length of time, he 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, nor 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 calendar as to defeat the purposes of this section. No more than two judges *Page 363 can be disqualified for bias or prejudice, in said action or proceeding, at the instance of the plaintiff, and no more than two at the instance of the defendant, in said action or proceeding, and this limitation shall apply however many parties or persons in interest may be plaintiffs or defendants in such action or proceeding. 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; and upon the second or any subsequent disqualification of a judge in the cause, a district judge of another judicial district of the state must be called in to preside in such action, motion, or proceeding, or the action, motion, or proceeding transferred to a district judge of another judicial district of the state; 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. Such second or subsequent affidavit of disqualification shall be filed with the clerk of the district court in which such action, motion, or proceeding may be pending within three days after the party or his attorney of record, filing such affidavit, has received notice as to the judge assuming jurisdiction of such action, motion, or proceeding."

    As stated in the majority opinion, under the decisions of the Montana Supreme Court the filing of the affidavit of imputed bias under subsection 4 of section 8868 within the time therein specified ipso facto disqualifies the presiding judge, and he is without authority to act further in the action, motion, or proceeding. As stated in the majority opinion, the privilege conferred by subsection 4 may be waived, but they hold that the waiver can only be made before the timely exercise of the privilege. There is no sound reason why the privilege cannot *Page 364 be waived after its exercise as well as before exercise, if done before another judge has been called in and has appeared and consented to preside in the action.

    The all-important difference between subdivision 4 and subdivisions 1, 2 and 3 of section 8868, supra, is that subdivision 4 does not by any of its terms disqualify a judge from presiding in any cause as a matter of law. On the contrary, the disqualification is made to depend upon the election of any party to the action or proceeding of his personal privilege to file his affidavit imputing bias and prejudice to the judge and stating therein his belief that he cannot have a fair and impartial trial before the judge. Whether the judge is in fact biased or prejudiced is immaterial. It is the belief of the litigant that he cannot have a fair trial and his election to invoke and the invoking of the privilege to file the affidavit of imputed bias and prejudice that give effect to subdivision 4. As stated in Washoe Copper Co. v. Hickey, supra [46 Mont. 363,128 P. 586]: "It is not the bias or prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed be entirely free from either charge."

    In several decisions this court has recognized the distinction between a disqualification of a judge by virtue of the law as expressed in subdivisions 1, 2 and 3 of section 8868, supra, and of a disqualification through the exercise of the privilege conferred by subdivision 4 of that section.

    In Gaer v. Bank of Baker, supra, this court invoked subsection 1 of section 8868, supra, and held that an order authorizing an administratrix to execute a note and mortgage to secure the payment of money borrowed by the administratrix from a bank in which the judge signing the order was a stockholder and an officer, to pay family allowance and other expenses incurred during the administration of the estate, was void and that the mortgage executed pursuant to the order was void, even though no objections were made to the right of the judge to make the order. The decision correctly holds that, *Page 365 where the facts are such that the statute itself disqualifies the judge, such disqualification cannot be waived.

    But this rule has no application where the statute does not of itself disqualify the judge but only confers a personal privilege to a litigant to disqualify him if he chooses to do so. The distinction between a disqualification effected by the terms of the statute itself and a disqualification brought about through the exercise of a personal privilege of a litigant was early noted by this court in State ex rel. Nissler v. Donlan, 32 Mont. 256,80 P. 244, 247, where this court said:

    "The latter section declares that the judge, whenever any of the grounds of disqualification are made to appear of record, shall thereafter call in another judge, who shall from time to time preside in the place of the disqualified judge. This implies that any of the disqualifications enumerated may be made to appear at any time. Section 180, however, declares that the particular disqualification of imputed bias and prejudice shall be made to appear by affidavit filed at any time before the day fixed for the trial or hearing. * * * The disqualification of imputed bias and prejudice provided for in subdivision 4 of the act is purely statutory. It does not rest upon the ascertainment of any fact, but only upon an imputation. Such being the case, and the statute being open to so much abuse, we are inclined to construe it strictly according to its express terms, and not broaden it by implication to include conditions not clearly within them." (Emphasis mine.)

    In that case the court held the affidavit was not filed in time, and therefore ineffective, or in other words the disqualification was waived. In State ex rel. Jacobs v. District Court, 48 Mont. 410, 138 P. 1091, 1093, this court, speaking through Mr. Justice Sanner, said:

    "Actual disqualification on the part of a judge may be manifested at any time after as well as before the date fixed for a hearing, and it is therefore available in probate proceedings whenever it is made to appear; but the privilege to impute bias to a judge where none may exist belongs to a different order *Page 366 of things and its existence may fairly be limited to a given time." (Emphasis mine.)

    In Washoe Copper Co. v. Hickey, supra, Judge Lynch had been disqualified for imputed bias, and thereafter counsel for both litigants agreed that Judge Stewart should be called in to preside in the case, and he was by Judge Lynch called in to preside. Thereafter one of the litigants filed an affidavit of imputed bias seeking to disqualify Judge Stewart. The affidavit was sufficient as to its contents, and filed in time. The court held that the agreement of the parties that Judge Stewart should preside in the case constituted a waiver of the right to disqualify him for imputed bias. The court said: "There is not anything peculiar about the provisions of subdivision 4 above. They merely grant privileges which may be accepted or waived. They are waived (1) by the failure to file a disqualifying affidavit, or (2) by failure to file in time. These considerations are sufficient to show that it was not the intention of the Legislature to inject into these provisions any question of public policy. And this is emphasized by the further provision limiting the number of challenges to five. Subdivision 4 confers advantages solely for the benefit of the litigant, and such advantages may be waived, and in this instance they are waived, in a mode prescribed by law subdivision 1, section 6389, Revised Codes. For a more extended discussion of the question here considered, see State v. Ham, 24 S.D. 639, 124 N.W. 955, Ann. Cas. 1912A, 1070, where, in the elaborate and well-considered opinion, the conclusion is reached in harmony with our views as expressed above."

    It is admitted in the majority opinion that the right to disqualify a judge for imputed bias can be waived in two ways: By nonaction, where no affidavit is filed, or when not filed in time, and also where the parties agree upon a certain judge the right to file the affidavit is waived, either expressly or impliedly, as in the Washoe Copper Co. case, supra. Here, then, in view of its decision in Gaer v. Bank of Baker, supra, the court, in the majority opinion, recognizes the distinction between *Page 367 a disqualification effected by the statute itself as distinguished from one brought about through the filing of an affidavit imputing bias and prejudice.

    The majority opinion holds that once the privilege of disqualifying a judge for imputed bias has been properly exercised it cannot thereafter be waived, but the court in the Washoe Copper Co. case, supra, specifically approves the decision in State v. Ham, supra, and said: "The conclusion is reached inharmony with our views as expressed above." (Emphasis mine.)

    In the case of State v. Ham, supra, the defendant in a criminal case invoked the privilege of filing an affidavit that he believed he could not have a fair and impartial trial before the presiding judge. Before the presiding judge had transferred the case to another circuit judge or had called in another judge to preside, defendant withdrew the affidavit. The trial proceeded as if no affidavit of prejudice had been filed, and the jury found him guilty. It was urged by the defendant that, by reason of the filing of said affidavit of prejudice, the presiding judge became forever disqualified to hear the case, and that the subsequent filing of the withdrawal paper signed by the defendant could not reinvest or clothe the judge with judicial authority to hear and try the case, and that it was not within the power of the defendant or his attorney to waive the disqualification effected by the disqualifying affidavit. The court said [24 S.D. 639,124 N.W. 956]:

    "The rule seems to be well established that any disqualification of a judge which is not forbidden by some rule of public policy, and which exists only for the benefit of the party as a privilege, may be waived. * * * The disqualification arises solely from the effect of the making and filing of the affidavit, and does not exist without such affidavit, and under such circumstances, where a defendant withdraws from record the affidavit of prejudice, as he would have a right to do, and requests the trial to proceed as if such affidavit had not been made and filed, he should not be heard to complain after conviction. *Page 368 * * * Appellant has cited Oakley v. Aspinwall, 3 N.Y. 547, as sustaining his contention, but in that case the disqualification existed by reason of the relationship, the consanguinity of the judge, and falls clearly within the public policy doctrine which prevents a waiver of such disqualification by consent of the parties. * * * In the case at bar no such prohibition of law enters into the question. The disqualification in this case arose only as a presumption from the act of the defendant himself making the affidavit of prejudice, which he afterwards withdrew and canceled of record, thus removing all presumption of prejudice and also removing the disqualification. So far as the record discloses, there never was any actual disqualification of the trial judge. The case of Oakley v. Aspinwall is not applicable to the circumstances of this case."

    "A waiver results * * * from a voluntary withdrawal of the affidavit of disqualification or motion for change of judge or acquiescence in disregard of such affidavit." 48 C.J.S., Judges, section 95, page 1102, and to the same effect is 30 Am. Jur., "Judges," par. 95, page 801.

    In Krebs v. Los Angeles Ry. Corp., 7 Cal. 2d 549, 61 P.2d 931, 934, the court said: "If it be conceded that the affidavit was filed in time, nevertheless appellants are barred from raising the question of disqualification on this appeal by reason of the fact that they voluntarily withdrew it. The affidavit was filed after the hearing on the motion for new trial on October 15. The remarks of the judge in court on October 16 indicate that while the affidavit of prejudice was pending he deemed himself without right to act on the motion for new trial. He informed counsel of the order he would make if the affidavit was withdrawn. With full knowledge of the action contemplated, which action was adverse to plaintiffs in that it required them to remit $7,500 from verdicts totaling $12,000 as a condition to denial of defendant's motion for new trial, plaintiffs consented to withdraw said affidavit, and thereby waived their right to object to said judge passing on the motion."

    In State v. Chavez, 45 N.M. 161, 113 P.2d 179, 187, the *Page 369 court said: "It is obvious that disqualification for prejudice may be waived; and it is waived by implication as well as by specific acts of the party having a right to rely thereupon. See note in 5 A.L.R. 1604, citing numerous authorities. Such `disqualification resulting from the filing of an affidavit of prejudice is waived where the affidavit is withdrawn.' 31 Am.Jur., Judges, par. 95, 801; State v. Ham, 24 S.D. 639,124 N.W. 955, Ann. Cases 1912A, 1070. * * * We can see no distinction between the right to waive and the circumstances under which a party may waive such disqualification before having attempted to disqualify a judge, and the right to waive and the circumstances under which it may be done after the effort to disqualify. Our attention has not been called to any cases making such distinction, where the right to waive exists in the first instance. We hold, therefore, that as to all causes of action set forth, petitioners have waived the question of disqualification, regardless of whether they had at first appropriately or irregularly attacked it."

    In State v. Garcia, 47 N.M. 319, 142 P.2d 552, 554, 149 A.L.R. 1394, defendant filed an affidavit of disqualification of the judge and the judge told his counsel that he would accept the disqualification. Later defendant withdrew his plea of not guilty and entered a plea of guilty before the disqualified judge, who sentenced him to the penitentiary. The court said, "the disqualification was waived when the defendant voluntarily appeared before him and asked him to accept a plea of guilty to second degree murder. The statutory disqualification may be waived, expressly or by implication." See also Nielson v. Garrett, 55 Idaho, 240, 43 P.2d 380.

    The statutes involved in the foregoing cases are not exactly the same as ours but in all of them the judge as against whom the affidavit is filed is without authority to proceed further in the case and in that vital particular the point of law involved is the same as under our statute.

    The case of Watson v. Payne, 94 Vt. 299, 111 A. 462, so strongly relied upon in the majority opinion, I think has nothing *Page 370 to do with this case. There the Constitution provided: "Justices of the Supreme Court shall be Justices of the Peace throughout the State; and the several Judges of the County Court, in their respective counties, by virtue of their office, except in the trial of such causes as may be appealed to the County Court." Const. Vt. ch. 2, sec. 28. There was no question of bias or prejudice of the judge involved or the filing or withdrawal of an affidavit of disqualification. The court said: "The justice of the peace who tried this case and rendered judgment therein held that office at the time solely by virtue of this constitutional provision and the fact that he was an assistant judge of Bennington county court."

    "The case was appealable to county court, and that being so, the justice had no authority to try and determine it." He was a justice of the peace except as the court said, "in the trial of such causes as may be appealed to the county court."

    There could not have been a different conclusion in that case in view of the plain provision of the Constitution. The judge could not act as a matter of law. Other cases sustaining the same rule are Burns v. Burns, supra; Kline v. State, supra; State v. Perkins, 339 Mo. 27, 95 S.W.2d 75; In re Miller's Estate,182 Okla. 534, 78 P.2d 819; Golos v. Worzalla, 178 Wis. 414,190 N.W. 114; State ex rel. Richardson v. Keen, supra. Wherever the question concerning the right to withdraw an affidavit of prejudice and bias of the judge, or imputed bias and prejudice of a judge, has arisen in the courts of sister states it has been uniformly held that withdrawal of the affidavit was a removal of the disqualification and the waiver thereof. None to the contrary has been cited in the appellants' brief or in the majority opinion.

    The expression in the majority opinion that the appellants did not consent to waive the disqualification, but expressly refused to do so, assumes a right in the appellants to stand upon the affidavit of disqualification interposed by an opposing litigant; that a right of waiver of disqualification was vested in the appellants. Such a doctrine would permit a party *Page 371 to litigation to predicate error upon the waiver by an opponent of a personal privilege. It was not the rights of the appellant that were in anywise affected by his withdrawal of the affidavit of disqualification. Any one of the appellants had the right to file an affidavit under subdivision 4 of section 8868 had they desired the removal of the judge.

    Each of the appellants had already waived the right to disqualify the judge for imputed bias and prejudice by not having exercised their right to do so. Moreover, counsel for appellants stated, "We do not feel that you are prejudiced, but we are standing on the record as it has been made by the proponents." As the record then stood, the objection was well taken, the withdrawal of the affidavit had not yet been made and no question of waiver of the disqualification by Wimett had yet been presented. Nor does the statute contemplate that the exercise of the privilege granted by subdivision 4 is the concern of any litigant other than the one who chooses to exercise the privilege. Notice of the filing of the affidavit is not required to be given to any other litigant in the case. State ex rel. Jenkins v. District Court, 32 Mont. 595, 81 P. 351; State ex rel. Lohman v. District Court, 49 Mont. 247, 141 P. 659.

    The petition for creation of the irrigation district was set down for hearing for July 31, 1946. The affidavit imputing bias and prejudice to the judge was filed July 25, 1946, and for aught that appears in the record, none of the appellants had knowledge of the filing of the affidavit until after the time had expired for them to file one. The majority opinion states that "the disqualification [by Mr. Wimett] inured not only to the advantage of Wimett but it inured to the benefit of every party to the proceeding who believed he could not have a fair and impartial trial and hearing before said judge." There is nothing in the record to show that anyone other than Mr. Wimett at any time entertained a belief he could not have a fair trial before the presiding judge. Appellants, through their counsel, stated that they entertained no such belief, and counsel *Page 372 for the proponents in withdrawing the affidavit, did so not only for Mr. Wimett and, although not required to do so, withdrew it as to all parties he represented. The affidavit filed by Mr. Wimett is limited to his own belief that he could not have a fair trial.

    It may be that circumstances could arise where the withdrawal of an affidavit might result in prejudice to the rights of other litigants to file an affidavit within the time provided by the statute and thus cut off the privilege of one who desired to disqualify the judge for imputed bias. If so, the decision in State ex rel. Carroll v. District Court, 50 Mont. 506,148 P. 312, affords protection. In any event, no such question was presented here for decision. I see no reason why the waiver cannot be made as well after the filing of the affidavit of disqualification as it could be before the exercise of the privilege to file it. I think Judge Besancon had authority to proceed and hear, try and determine the case and that the case should be determined upon its merits.