Anchor Grain Co. v. Smith
| Decision Date | 12 February 1924 |
| Docket Number | 4186. |
| Citation | 297 F. 204 |
| Parties | ANCHOR GRAIN CO. et al. v. SMITH. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. A Templeton, of Fort Worth, Tex., W. E. Spell, of Waco, Tex G. A. Stultz, of Wichita, Kan., and Clay Cooke, of Fort Worth, Tex., for petitioners.
Stanley Boykin, H. C. Ray, and Geo. M. Conner, all of Fort Worth Tex. (Capps, Cantey, Hanger & Short, of Fort Worth, Tex., and Orestes Mitchell, of St. Joseph, Mo., on the brief), for respondents.
Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.
This is a petition to superintend and revise two orders of the District Judge entered in proceedings in bankruptcy. One of the orders denied a motion that the judge certify his own disqualification, because of personal bias and prejudice against J. L. Walker, president of the bankrupt corporation. The other order denied a motion to disqualify the referee in bankruptcy, on the ground that he and the attorney for the trustee were law partners.
The affidavit in support of the motion to disqualify the judge does not allege that Walker is a creditor of the bankrupt estate. The bankrupt itself is insolvent, as this court has heretofore held. Walker Grain Co. v. Gregg Grain Co (C.C.A.) 268 F. 510. Certain creditors joined in this motion, but it is not asserted that the judge had any bias or prejudice against them.
The District Judge found, upon the evidence submitted to him, that the attorney for the trustee was appointed at the request of all the parties who now move to disqualify the referee; that the appointment was made in February, 1921, and that no complaint relative thereto was made until April, 1923, during all of which period of time the petitioners knew that the trustee was a general partner of the referee. The court further found that it was agreed between these partners that the referee was not to share in the fees of the attorney for the trustee, that the attorney had ceased to represent the trustee, and that neither of them had been guilty of any misconduct. Upon these findings of fact, the court denied the motion to disqualify the referee.
The motion to disqualify the judge was properly denied. Such a motion can only be made by a party to the litigation. Comp St. Sec. 988. Walker is not such a party. The record in Gregg Grain Co. v. Walker Grain Co. (C.C.A.) 285 F. 156, shows that the referee had so held, and that Walker voluntarily...
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...that an affidavit by a corporate representative does not satisfy the statutory requirement of filing by "a party". Anchor Grain Co. v. Smith, 297 F. 204 (5th Cir. 1924). But, in light of the disposition on the merits, I do not rely on this 2 The Court's opinion is reported at 311 F. Supp. 9......
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...are Remington on Bankruptcy, § 595 (3d Ed.); In re Abbey Press (C. C. A.) 134 F. 51; Bray v. Cobb (D. C.) 91 F. 102; Anchor Grain Co. v. Smith (C. C. A.) 297 F. 204; In re Gardner (D. C.) 103 F. 922; Meyers v. Shields (C. C.) 61 F. 713, 726; and Tumey v. State of Ohio, 273 U. S. 510, 47 S. ......
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