Therefore, this court reversed and remanded for a new trial before a different judge. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Following a second trial, Judge Eckert denied Oscar and June any recovery. Oscar appeals, for himself and as personal representative of the estate of June (who has died since this action was commenced), contending that certain findings were clearly erroneous and that Oscar was entitled to judgment as a matter of law.

" The trial court found that the unsigned and unfiled 1986 tax return was "meaningless" without an attachment which would show in detail the loss in farm income claimed by Gerald, and that without the attachment there was "no way to cross-examine." The trial court may assess the reliability of documentary evidence in light of the testimony of witnesses, see Paulson v. Meinke, 352 N.W.2d 191, 194 (N.D. 1984). We conclude that the trial court did not abuse its discretion in refusing to admit the 1986 tax return.

Later, we limited our holding in Krohnke to situations where all of the evidence was documentary in nature. In Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984), and McCroskey v. Fettes, 336 N.W.2d 645 (N.D. 1983), we held that, where some witnesses testified in court and other testimony was admitted by deposition, the trial court's ability to observe the demeanor of the witnesses who testified in person called for application of the "clearly erroneous" standard. Any possible doubt about application of the "clearly erroneous" standard in this case has been clarified by the amendment to the Explanatory Note for NDRCivP 52, effective January 1, 1986.

Because Judge Castellano did not take any additional testimony but relied on the prior record in the case, I assume that he was not setting aside any fact-findings made by Judge Blackmer. Cf. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984) (in non-jury trial, replacement judge should not alter findings made by predecessor judge who heard and observed witnesses and whose findings required evaluation of credibility of witnesses); Note, Replacing Finders of Fact — Judge, Juror, Administrative Hearing Officer, 68 Colum.L.Rev. 1317, 1379 (1968) (successor judge should give findings same deference as would appellate court). Inasmuch as Judge Blackmer obviously credited what the state said concerning the reasons for the delay, I would also credit those statements for purposes of this appeal.

Dean's post-trial motions were denied by the successor judge, Honorable Hal Stutsman. Dean Ostby appeals. If a trial judge is unable to act on post-trial motions because of death, disability or other cause, a successor judge may act. NDRCivP 63. Still, the power of a successor judge to review evidence of disputed facts is circumscribed. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). If the successor judge "is not satisfied with the findings, conclusions and decree of his predecessor, and thinks [they] should be vacated or modified, but cannot do so because he did not see and hear the witnesses, then he is limited to the granting of a new trial." Paulson at 193, quoting an Idaho decision.

Because the case is being remanded for a retrial of all factual issues, we deem it appropriate to grant the request. See Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Therefore, we remand the case for a new trial before a judge appointed under Administrative Rule 15.

"In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process." Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984); Anderson v. Dewey, 82 Idaho 173, 180, 350 P.2d 734 (1960); 46 Am.Jur.2d, Judges 37. While this rule would appear to mandate a new trial in a case like the present one, which involves disputed issues of fact, we believe that recent amendments to rule 63 of the Federal Rules of Civil Procedure provide proper guidance to our trial courts in both carrying out the mandate of 51-183f and ensuring that no party is deprived of its due process right to a decision by the judge who heard and saw the witnesses. Rule 63 now provides: "If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.

E.g., Faris v. Rothenberg, 648 P.2d 1089, 1092 (Colo. 1982); Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D. 1984). One commentator has suggested that a successor judge consider four factors: 1) the point to which the trial has proceeded; 2) the complexity of the trial; 3) the importance of witness credibility; and 4) the parties' good faith.

A litigant is generally entitled to a decision on the facts by a judge who has heard and seen the witnesses. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Still, the rules of procedure allow some latitude in recalling witnesses at the new trial: [T]he successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden.

North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 727 (N.D. 1996). Our decision in Paulson v. Meinke, 352 N.W.2d 191, 194 (N.D. 1984), is controlling. We ruled in Meinke 352 N.W.2d at 193-194, a successor judge erred by amending the findings and conclusions of a retiring judge based upon a reading of the transcript, without giving the parties an opportunity to retry the case: