Callwood v. Callwood

• Decision Date: 25 September 1954
• Docket Number: Civ. No. 37.
• Citation: 127 F. Supp. 179
• Parties: Clifford W. L. CALLWOOD, Petitioner, v. Else E. CALLWOOD, Respondent.
• Court: U.S. District Court — Virgin Islands

127 F. Supp. 179

Clifford W. L. CALLWOOD, Petitioner, v. Else E. CALLWOOD, Respondent.

Civ. No. 37.

District Court, Virgin Islands. St. Thomas & St. John.

September 25, 1954.

John L. Phillips, Jr., St. Thomas, V. I., for petitioner.

Dudley, Hoffman & McGowan, St. Thomas, V. I., Geo. H. T. Dudley, St. Thomas, V. I., of counsel, for respondent.

MOORE, District Judge.

This is an opinion and order ruling upon plaintiff's motion filed September 17, 1954, moving the Court for its disqualification under Title 28, Section 144 of the Judicial Code of the United States on the grounds of prejudice against the plaintiff herein. The said motion is accompanied by an "Affidavit of Prejudice" executed by the plaintiff herein and dated on the same day. For the purpose of this ruling we will not go into the truth or falsity of the matters alleged in the affidavit.

Section 144, Title 28, Not Applicable to the District Court of the Virgin Islands.

Most sections of Title 28 referring to District Courts are applicable to Constitutional Courts of the United States only, and are not applicable to the Virgin Islands and other Federal territorial courts created by Congress. Such sections as are now applicable to the various territorial courts have been specifically made applicable.

Section 144 applies only to proceedings in a "District Court" as do other sections in the Judicial Code. We, therefore, refer to Section 451 of the same Code for its definition of "District Courts" as it is used in Title 28.

This section reads as follows:

"Definitions as used in this title. * * * The terms `district court' and `district court of the United States' mean the courts constituted by chapter 5 of this title."

We next refer to Chapter 5 and find that the District Court of the Virgin Islands is specifically not included in Chapter 5 of this Title, as are also not included the other territorial district courts of Alaska, Canal Zone and Guam. Specifically included in Chapter 5 are the district courts of Hawaii and Puerto Rico, to which the term "District Courts" as used in Title 28 is made specifically applicable. Referring also to section 460 of Title 28, we find the specific portions of the Code which are made applicable to the Virgin Islands and the other territorial courts, which section reads as follows:

"§ 460. Application to Alaska, Canal Zone, Guam and Virgin Islands. Sections 452-459 of this chapter shall also apply to the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and the judges thereof."

Thus we find that the courts of Hawaii and Puerto Rico are specifically included in the code definition of "District Courts" as used in Section 144 and that the Courts of the Virgin Islands, Alaska, Canal Zone and Guam are specifically excluded from the definition of "District Court" as used in Section 144.

The District Courts of Hawaii and Puerto Rico were also formerly not included in the meaning of "District Court" as used in the Judicial Code, Title 28. However, upon the recodification and revision of the Judicial Code in 1949 and 1950, it was decided to place the courts of Hawaii and Puerto Rico on the same basis as far as the Code was concerned as United States Constitutional Courts because their jurisdiction is exclusively Federal and because of their size and volume of work, and to leave the District Courts of Alaska, Canal Zone, Guam and the Virgin Islands as Federal territorial courts excluded from Chapter 5 of Title 28.

The two sets of Federal courts have long been distinguished as Constitutional Courts of the United States and Legislative Courts in the territories created by act of Congress, and thus the words "District Court" as used throughout Title 28 have been clearly defined in Section 451 to mean only the former, except where such provisions have been made specifically applicable to the latter.

While the inapplicability of this Section to the Virgin Islands is clear, we cite from the annotated code in the annotations under Section 144 on page 409 as follows: "A territorial court is not within the purview of this section, which is applicable only to the district courts of the United States and does not extend to the United States District Court for Alaska." Tjosevig v. U. S., 9 Cir., 255 F. 5, 6. In the case just mentioned, the Circuit Court of Appeals held "That statute is by its terms made applicable only to the District Courts of the United States, and it does not extend to a territorial court." That case went to the Circuit Court on appeal from a contempt conviction of Christian Tjosevig, and Martin J. Lund, arising out of an affidavit filed in a territorial court under this Section. The Court of Appeals said: "It is not charged that the affidavit contained matter that was false. The plaintiffs in their answer alleged that the motion and affidavit were made in good faith and upon the honest belief that they were necessary for the protection of the rights of the defendants in the action." The court therefore reversed the conviction of contempt although holding the section inapplicable to a territorial court in the language quoted above.

We next note that the revised Organic Act of the Virgin Islands provides in Section 25 as follows: "The rules of practice and procedure heretofore or hereafter promulgated and made effective by the Supreme Court of the United States pursuant to section 2072 of title 28, United States Code, in civil cases, section 2073 of title 28, United States Code, in admiralty cases, and section 30 of the Bankruptcy Act in bankruptcy cases, shall apply to the District Court of the Virgin Islands and to appeals therefrom." 48 U.S.C.A. § 1615. The rules of civil procedure as promulgated by the Supreme Court consists of Rule 1 to Rule 86 with reference to trial procedure. They change no United States Code provisions and contain no change of the applicability of the United States Code to territorial courts. There is nothing in these 86 rules at all with reference to Territorial Courts, or with reference to Section 144, or the applicability of this or other sections of the Code which are still inapplicable to the territorial courts. These rules were already applicable here, having been made so by order of this court. Consequently, while the 86 rules of the Supreme Court are now the rules of trial procedure to be followed in the trial of cases in the District Court of the Virgin Islands, this section of the Organic Act obviously did not make the District Court of the Virgin Islands a "district court" or "district court of the United States", within the meaning of the Judicial Code along with the courts enumerated in Chapter 5 of the Code.

The safeguard provided for litigants in the Virgin Islands is that appeal cases are tried by the Court of Appeals de novo, and no findings of the District Court of the Virgin Islands upon the evidence are binding upon litigants upon appeal.

Plaintiff's Motion and Affidavit for Disqualification Untimely and Insufficient.

The plaintiff in this case has been a litigant in several cases before this court, as stated in his affidavit; the first of which was as an intervenor in the case of Else E. Callwood v. Osmond Kean, Civil No. 179-1949.

After a full hearing of that case, this court in its judgment decided against his claim as an intervenor in the matter. The case was appealed to the Third Circuit Court of Appeals, 189 F.2d 565, and this court's judgment against his claim was sustained.

The second was the case of Callwood v. Virgin Islands National Bank, D.C., 121 F.Supp. 379, which case this court decided against the plaintiff's contention and, as stated in his affidavit, this court in its opinion stated that it believed him guilty of fraud. This case and its complete record and the court's opinion is now pending on appeal in the Third Circuit Court of Appeals.

The next case was a suit filed by this plaintiff on November 12, 1953, which was voluntarily dismissed by him on November 23, 1953. There were no findings or written opinion in that case.

The present case was filed on March 1, 1954; was called on the docket on June 14, 1954, and set for trial at the September Term of Court. Upon the return of the court from vacation and attendance at the Judicial Conference, the defendant herein filed a motion for a temporary restraining order against the plaintiff and served notice upon him of that motion. Hearing upon the same was set for September 17, 1954, at which time both the plaintiff and the defendant in this suit were present with their respective attorneys and both testified, and the court conducted a full hearing upon the said motion. At the conclusion of the testimony participated in fully by both parties, this court decided that equity required, not only that plaintiff be restrained, but that both parties should be temporarily restrained from the collection of rents until the matter could be determined upon the merits.

However, the plaintiff in this case had not asked for a temporary restraining order against the defendant, but the court allowed the plaintiff in this case to file an answer to defendant's petition and therein to ask for a restraining order against the defendant. This first hearing was had at 11:00 o'clock A. M. on September 17, 1954. It was continued until 3:00 o'clock P.M. of the same day, to allow the plaintiff in this case to file the petition mentioned above. At 3:00 o'clock P.M., plaintiff and his attorney returned with the petition which was duly filed and after objections on the part of the defendant's lawyer, the court held plaintiff's petition to be sufficient. Plaintiff's lawyer then submitted to the court a draft of order restraining the defendant alone from the collection of rents. The question was argued by both sides and the court being of the opinion that neither should collect the rents...