Summary
holding thirty-day period for filing request for change of judge began to run when newly elected judge became judge of division to which case had been assigned
Summary of this case from Corozzo v. Wal-Mart Stores, Inc.Opinion
No. 77746
October 24, 1995.
ORIGINAL PROCEEDING IN PROHIBITION
Charles A. Hurth, III, Union, for Relator.
Martin Mazzei, James A. Broshot, Steelville, for Respondent.
This prohibition action arises out of a dissolution of marriage proceeding. The relator seeks to prevent Judge Seay from hearing the case. A preliminary order in prohibition was entered and is now made absolute.
On January 11, 1994, relator's wife filed a petition for dissolution of marriage. Pursuant to local court rule, Judge Dorman Steelman was assigned to the case. At no time did either party file a motion pursuant to Rule 51 for change of judge. The trial was scheduled June 2, 1994, but continued until February 8, 1995. Judge Steelman's term ended December 31, 1994. The respondent judge was elected circuit judge to succeed Judge Steelman in November of 1994 and was sworn in as judge on January 1, 1995. Eight days later, relator filed a motion for change of judge pursuant to Rule 51.05(e). On January 31, 1995, Judge Seay overruled the motion as untimely.
Rule 51.05(b) provides in pertinent part:
The application [for change of judge] must be filed within thirty days after the answer is due to be filed if the trial judge is designated at the time the answer is due.
. . . .
If the trial judge is not designated at the time the answer is due . . . the application must be filed no later than thirty days after the designation of the trial judge and notification to the parties or their attorneys.
The sole issue to be decided is whether there was a "designation of the trial judge" more than thirty days prior to January 9, 1995.
From the above recital of the facts, it is clear that Judge Seay was not a judge prior to January 1, 1995. In order for Judge Seay to become judge, not only was his election required but a vacancy must occur for him to occupy as a circuit judge. So long as Judge Steelman held office during his term, as provided in Mo. Const. art. VIII, § 12, Judge Seay could not be the judge.
The term "designated judge" has been used in describing judges who are in office at the time a case is assigned to them. Eagleton v. Eagleton, 767 S.W.2d 582, 585 (Mo.App. 1988). The term has also been used to describe a judge assigned to hear a matter previously set before another judge. Maddox v. Director of Revenue, 772 S.W.2d 412 (Mo.App. 1989). To restate the obvious, one may not be the designated trial judge unless such person is a judge.
Nevertheless, the respondent argues that a court is a continuous institution regardless of changes in its personnel during the course of litigation and a successor judge takes up litigation to completion where his or her predecessor left it unless justice requires otherwise in a particular case. Heintz v. Hudkins, 824 S.W.2d 139, 146 (Mo.App. 1992). That, of course, is true of every judge who is designated to hear a matter previously pending before another judge. However, Rule 51.05(b) starts the running of the time for filing the change of judge upon the "designation of the trial judge." The rules relating to change of judge do no violation to the principle cited in Heintz.
The rules governing change of judge give a civil litigant the right to disqualify a trial judge one time. Matter of Buford, 577 S.W.2d 809, 828 (Mo.banc 1979). To construe Rule 51.01(b) to include within the meaning of "judge" one who is a candidate for office or a prospective judge after an election would be, to say the least, a strained reading. Judge Seay became the designated trial judge when he became the judge of the division to which the case had been assigned. Under the plain language of the rule, relator then had thirty days to file a request for a change of judge. The request was filed within that time.
The preliminary writ of prohibition is now made absolute.
_______________________________ JOHN C. HOLSTEIN, Chief Justice
Benton, Price, Limbaugh, Robertson, Covington, JJ., and Blackmar, Sr.J., concur.