Annoni v. Blas Nadal's Heirs, 3218.
| Decision Date | 26 January 1938 |
| Docket Number | No. 3218.,3218. |
| Citation | 94 F.2d 513 |
| Parties | ANNONI et al. v. BLAS NADAL'S HEIRS et al. |
| Court | U.S. Court of Appeals — First Circuit |
Sidney L. Fishkin, of New York City (Jose Sabater, of Mayaguez, Puerto Rico, on the brief), and Edward A. Welti, of New York City, for appellants.
Oscar Souffront, of Mayaguez, Puerto Rico, for appellee Carmen Maria Nadal Carrion.
Frank Martinez, of San Juan, Puerto Rico, for appellees Bianchi and Cabrera.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
This was a suit entered in the District Court of Mayaguez in February, 1931, to recover a half interest in a sugar plantation situated in the municipality of Mayaguez in Puerto Rico.
The defendants filed a demurrer to the complaint. The Judge of the District Court of Mayaguez, owing to his family and friendly relations with one of the defendants, "decided to inhibit from acting in the trial of the case" and communicated that fact to the Attorney General of Puerto Rico. The then acting Governor, Jose Padin, on October 24, 1931, appointed one Tomas Torres Perez, to act as judge in this case. The following is the order of appointment signed by the Acting Governor:
The parties, without objecting to the appointment, went before Perez, who heard the demurrer and sustained it.
The plaintiffs by their counsel then filed a motion before Judge Foote, the regular District Judge, to the effect that everything done by Tomas Torres Perez be declared null and void on the ground that he had no authority to act as judge in the case by reason of the provisions of section 84 of the Code of Civil Procedure, Rev.St. & Codes 1913, § 5068.
Judge Foote evidently considered that he was disqualified so far as taking any action in the case and refused to rule on the plaintiffs' motion.
The plaintiffs then appealed to the Supreme Court of Puerto Rico from the decision of Tomas Torres Perez sustaining the demurrer. The Supreme Court ruled that, while it had decided that the method employed in the case was not the proper way to obtain a substitute, citing Saavedra v. Mestre, Judge of the District Court of Aguadilla, 43 P.R.R. — and in its opinion said: "We are fairly well convinced that mandamus was the proper remedy in such a case to compel the District Judge to act in accordance with section 84 of the Code of Civil Procedure," it held that Tomas Torres Perez was a judge de facto and the plaintiffs were bound by his decision.
The plaintiffs appealed from the decision of the Supreme Court of Puerto Rico to this court.
We think the Supreme Court erred in holding that Tomas Torres Perez was a judge de facto, and the case should be sent back to the District Court with instructions to the regular judge of that court to act in accordance with section 84 of the Code of Civil Procedure.
There appear to be three sections under which, in the absence or disqualification of the regular judge of a district court, a substitute may be appointed, or the case transferred to another court.
Section 2 of the act reorganizing the judiciary of Puerto Rico, p. 244 of vol. 1, Revised Statutes and Codes of Puerto Rico 1911, Rev.St. & Codes Puerto Rico 1913, § 1149, provides "that the Governor, upon the recommendation of the Attorney General, may, if the public service requires it, order any other district judge to fulfill the duties of any judge regularly appointed, when he is temporarily disqualified: * * * And provided further, That in cases of absolute necessity, * * * upon recommendation of the Attorney General may appoint a substitute judge for such time as may be necessary."
Section 21 of the Code of Civil Procedure, Rev.St. & Codes 1913, § 5005, provides that, upon the request of a judge of any district a judge of another district may hold court in the district of the judge making the request; or the Governor, in case of disability of any judge of a district court or absence from the Island, or for any other cause, may direct some other judge to hold court in the district of the judge so incapacitated; or if the regular district judge is otherwise engaged, the Governor may appoint a substitute judge during the time the regular judge is disqualified.
But neither of the conditions warranting...
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Application of Wiechert
...is not in accordance with the law there is no judge and the entire proceeding before him is a nullity. See, e. g., Annoni v. Blas Napal's Heirs, 94 F.2d 513 (1st Cir. 1938). The principle involved is more commonly recognized as the so called "de facto" doctrine. In order that there may be a......
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Perlmutter v. CIR
...situations such as that presented.4 Cases like Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, and Annoni v. Blas Nadal's Heirs, 1 Cir., 94 F.2d 513, are not pertinent, They dealt with situations where no color of authority for the newly created jobs existed. Here we are ......
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Annoni v. Nadal's Heirs, 3795.
...the complaint did not state a cause of action and because the action was barred by the statute of limitations. On appeal to this court (94 F.2d 513) the judgment of the Supreme Court of Puerto Rico was reversed and the case was remanded for further proceedings on the ground that the judge a......