Refior v. Lansing Drop Forge Co.

• Decision Date: 05 January 1942
• Docket Number: No. 9077.,9077.
• Citation: 124 F.2d 440
• Parties: REFIOR v. LANSING DROP FORGE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

124 F.2d 440 (1942)

REFIOR v. LANSING DROP FORGE CO.

No. 9077.

Circuit Court of Appeals, Sixth Circuit.

January 5, 1942.

A. E. Fixel, of Detroit, Mich., and Alexander H. Schullman, of Los Angeles, Cal. (Alexander H. Schullman, of Los Angeles, Cal., on the brief), for appellant.

Elroy Jones, of Detroit, Mich. (Cummins & Cummins, of Lansing, Mich., and Dykema, Jones & Wheat, of Detroit, Mich., on the brief), for appellees.

Before SIMONS, HAMILTON, and McALLISTER, Circuit Judges.

HAMILTON, Circuit Judge.

Appellant appeals (1) from an order dismissing his petition as amended, (2) because the presiding judge proceeded further in said cause after appellant had filed an affidavit that said Judge had a personal bias against appellant and his counsel. Orderly disposition of the appeal requires that we outline as briefly as possible the events leading to the entry of the orders of which the appellant complains.

Appellant, as a minority stockholder of appellee, the Lansing Drop Forge Company, filed this action in the District Court on September 10, 1935, charging appellees, Emil M. Refior, Edward H. Refior and Alva M. Cummins, majority stockholders of said corporation, with fraud and negligence in the management of its affairs, which resulted in losses to the corporation.

Appellees filed their answers on October 11, 1935, denying the material allegations of the petition. On January 27, 1936, appellant procured an order authorizing him to make an examination of the books and records of appellee, the Lansing Drop Forge Company, and on February 12, 1936, appellant moved the court for a reference of the cause to a Master, which was denied. The trial of the cause was first commenced on June 9, 1936, before the Honorable Edward J. Moinet, District Judge, and in the course thereof was continued on the court's motion, with the consent of appellant and over the objection of appellees for the purpose of making a further audit of the books and records of the appellee corporation.

On July 21, 1936, appellant filed a motion to restrain the individual appellees from holding a meeting of stockholders and directors of the appellee corporation and on July 27, 1936, the court sustained this motion and entered a conformable restraining order. On December 18, 1936, appellant filed an amended petition praying an injunction restraining the corporate appellees' directors from acting on its behalf except in the matter of purchases and sales in the ordinary course of business, and the court issued such restraining order.

On February 7, 1938, appellant filed an amended and supplemental bill of complaint and on April 15, 1938, appellees filed answers thereto and set up certain affirmative defenses and on appellant's motion, time was extended to April 12, 1938, for his reply, which was filed June 12, 1941.

Appellees, from time to time, moved the court to set the cause for trial, but because of the congested condition of the court's docket, it was not reached on the trial calendar until February 14, 1939. In the interim appellant had substituted on the docket other local attorneys and those displaced objected to the substitution until appellant had paid the agreed fees for their services.

In December 1939, appellant's new local counsel filed on his behalf a petition for another restraining order further limiting the action of the Board of Directors of corporate appellee and in the course of the hearing on this motion, the trial judge, the Honorable Edward J. Moinet, suggested that the cause be referred to a Special Master for all purposes, to which appellant agreed and appellees' counsel drew the order which counsel for appellant refused to approve. Judge Moinet then set the action for trial October 1, 1940, but counsel for appellant moved for a continuance, which was granted.

On October 30, 1940, Honorable Frank A. Picard, District Judge, was substituted for Judge Moinet and the parties were notified by Judge Picard that on November 8, 1940, a definite trial date for said cause would be fixed, and on that date the case was again set for trial January 7, 1941. On December 31, 1940, appellant's nonresident counsel notified Judge Picard that he would not be able to try the case on the date set, but would be able to try it after January 21, 1941.

Judge Picard notified counsel that he would not be able to try it at that time because of his absence from the District and thereupon counsel for appellant requested the court to refer the cause to a Master, to which the court agreed.

Appellant's counsel failed to prepare the order of reference as directed by the court and the court then instructed appellees' counsel to prepare it and submit it to appellant's counsel, which was done, and the order was entered January 8, 1941. On this date, the Special Master notified all counsel in writing that he had set the case for February 17, 1941. On February 13th, after Judge Picard had left the District, appellant filed a motion to set aside the order of reference and prayed the court to set the cause for trial. Appellant's counsel notified appellees' counsel that he would appear before Judge Picard after his return on March 3, 1941, and ask for an oral hearing on his motion to revoke the order of reference and to fix the date of trial. Appellees and their counsel appeared before the Master for hearing on the date set, but appellant and his counsel refused to appear, and the hearing was discontinued. The appellees, thereupon filed a petition for decree, dismissing appellant's complaint as amended and for dissolution of the restraining orders and the recovery of costs, and notified appellant and his counsel that the motion would be called for hearing before Judge Picard on March 3, 1941. Appellant's local attorneys, who had theretofore been discharged by him, filed an intervening petition in the action asking for an order fixing fees and praying the court to disallow the appearance of other local counsel for appellant until their petition had been considered by the court. Appellant's motion to revoke the order of reference, appellees' motion to dismiss the bill and the petition of counsel for attorneys' fees all came on for hearing before Judge Picard on April 28, 1941, and on that date the court overruled appellant's motion to revoke the order of reference, and on April 29, 1941, the court refused to permit the appearance of substituted local attorneys until appellant had paid his former attorneys for their services.

After hearings on the respective motions, appellant's substituted local attorneys requested the court to hold in abeyance further consideration of the respective motions until appellant's non-resident attorney of Los Angeles, California, could be present. The court postponed further consideration of the motions until May 12, 1941, and at a hearing on this date, ordered appellant to pay or secure the payment of the fees to his discharged counsel and also modified the order of reference to the Master, limiting the hearing to proof as to the appellee corporation's records and books. On this date, appellant moved for a stay of proceedings, pending an appeal to this court, on his objections to the order of reference, which motion was denied. The matter came on for hearing before the Master on May 13, 1941, at which time appellant's counsel appeared and moved for an adjournment of two weeks. The Master reported appellant's motion to the court, who on hearing set aside the order of reference and requested counsel to agree on a date for trial. The parties agreed in writing that the case should be tried on May 22, 1941, but on filing this agreement, the court set June 17, 1941. The order provided that if either party did not appear on this date, the cause would be considered a default as to the delinquent. The motion of appellees to dismiss the bill of complaint was denied.

When the case came on for hearing on June 17, 1941, there was presented the matter of the sufficiency of the surety guaranteeing the payment of attorneys' fees to appellant's discharged counsel, and in the course of the hearing on this matter, appellant's substituted local counsel withdrew from the cause and asked that their names be stricken from the record. Thereupon, appellant's non-resident counsel moved that the cause be continued for trial for two months so that new local counsel could be employed and acquaint himself with the...