Cord v. Smith, 19416.

• Decision Date: 15 December 1966
• Docket Number: No. 19416.,19416.
• Citation: 370 F.2d 418
• Parties: E. L. CORD, individually and doing business as Los Angeles Broadcasting Company, Appellant and Petitioner, v. Calvin J. SMITH, Appellee and Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 418 (1966)

E. L. CORD, individually and doing business as Los Angeles Broadcasting Company, Appellant and Petitioner, v. Calvin J. SMITH, Appellee and Respondent.

No. 19416.

United States Court of Appeals Ninth Circuit.

December 15, 1966.

Milo V. Olson, William K. Woodburn, Los Angeles, Cal., Edward D. Neuhoff, San Marino, Cal., for appellant.

Lyndol L. Young, Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

We have before us four motions, all relating to our decision of November 4, 1964, in the case of Cord v. Smith, 338 F.2d 516. They are (1) a motion by Cord for clarification of our mandate, (2) a motion by Cord that this court direct the dismissal of an action entitled Young v. Cord, (3) a motion by Smith and Attorney Young that we vacate our mandate and expunge our opinion, and (4) a motion by the same parties to dismiss the first two motions.

We first state the background of these motions. Our mandate was spread upon the records of the District Court on April 26, 1965. In compliance with the mandate, the case was transferred to Judge Whelan. On May 5, 1965 there came on for hearing a motion previously noticed by Cord for a protective order in connection with a deposition. On that morning Attorney Young filed in the case of Smith v. Cord a document entitled "Complaint on Assignment and Demand for Jury Trial." It names Young as "Co-plaintiff, Assignee." It refers to and incorporates Smith's complaint, and alleges that, on February 21, 1964, before the action was filed, Smith assigned to Young one-half of his cause of action. The prayer is for one-half of the recovery. Young appeared at the hearing and announced that he was appearing in his own right, having filed the above "Complaint on Assignment." He also filed a "declaration" in which he asserted, among other things, that the mandate of this court is invalid because obtained by fraud. This document is not sworn to before a notary, but states that it is made "under penalty of perjury."¹

At the hearing, the court made an order prohibiting Young from participating further as an attorney in accordance with our mandate. Cord then filed a motion to strike Young's "Complaint on Assignment," which came on for hearing on June 14, 1965. Young filed objections, in which, as in the "declaration" previously mentioned, he indulged in further invective of the type described in our previous opinion (see 338 F.2d at 521, 525). He also filed an affidavit in which he alleged that there was an oral assignment in October, 1963, affirmed by a written assignment on February 21, 1964. In his affidavit he states that he had had an arrangement with Smith for a 10% contingent fee, which was terminated in September, 1964. Smith filed an affidavit to the same effect. If there be a written assignment, it was not presented to the trial court, and we have not seen it. At the June 14 hearing, the court indicated that it believed, assuming that Young had a claim on his own behalf, that he should have asserted it in a separate lawsuit. Young indicated that he would file such a separate suit. The court then, "under those circumstances," granted Cord's motion to strike, "on that basis." The deposition of Smith, to be taken by Cord's counsel, was rescheduled for June 23, at the office of Cord's counsel.

On June 15, 1965, Young filed a separate complaint, action No. 65-889-E.C. in which he names himself as plaintiff and Cord as defendant. He there restates Smith's cause of action against Cord, alleges that he is the assignee of half of it, prays judgment accordingly, and demands a jury trial. The action was filed by Young in pro per. Pursuant to the so-called "low number" rule of the District Court, Judge Crary, to whom the case of Young v. Cord was assigned when it was filed, transferred the case to Judge Whelan.

At the deposition Smith appeared by Attorney West, and Young also appeared, claiming a right to be present as plaintiff in Young v. Cord, which, he said, had been consolidated with Smith v. Cord. In this he was in error. The case had been transferred to Judge Whelan, but not consolidated with Smith v. Cord. Olson, Cord's attorney, objected to Young's presence. Young asserted a right to be present, and West concurred with his views. It was then agreed between Olson and West that the deposition be continued until August 16, at the same place. Cord's attorney, Olson, was in the meantime to seek whatever relief he thought proper in relation to Young's further participation in the case. In a letter to West, written on the same day, Olson said that he intended to seek a protective order from Judge Whelan on August 9. This, however, was followed by two letters from Young, in which the validity of our mandate was again attacked, and in which Young indulged in further invective.

On July 8, Olson filed in this court the pending motion of Cord for clarification of our mandate. Cord's motion requested a stay. At the suggestion of this court, Judge Whelan stayed all proceedings for 60 days. On August 17, Smith and Young filed a joint response, Smith by Attorney West and Young in pro per. They requested that all matters be heard en banc, that the members of this panel be disqualified, that our prior decision be vacated and the opinion expunged, that Cord's motion be dismissed, and certain other relief. The moving papers were accompanied by affidavits of Judge Clarke, Young (three affidavits) and Smith. We do not detail the contents of these affidavits. In large part those of Young repeat the kind of villification of Olson and Cord that we commented on in our prior opinion. The filing of these papers and our granting of Attorney Olson's request for time in which to reply produced a further barrage of wires and letters from Young. On September 20, Cord's reply was filed. It denies any fraud on this court or on Judge Clarke and is accompanied by affidavits by Olson, Woodburn and Neuhoff, Cord's attorneys, and by Cord and Olson's secretary. They provoked another vituperative wire from Young, followed by another affidavit by Judge Clarke, in which he asks to be made a respondent and makes a vigorous personal attack on Attorney Olson. There followed affidavits by Murray, who was co-counsel for Smith and Young, Young, and Smith, and further letters and wires from Young and Judge Clarke. Because of all the charges that were being made, we issued a broad stay of all proceedings below.

All papers in the case were then submitted to all active judges of this court other than the members of this panel. They concluded, unanimously, that the asserted disqualification of the members of this panel is frivolous, and that none of the pending issues is of a kind which is appropriate for an en banc consideration. Thereafter, on March 3, 1966, we entered an order denying Smith's and Young's motions to disqualify us, granting Judge Clarke's request that he be made a respondent, denying Smith's and Young's request for a hearing en banc, and setting for hearing the motions now before us.

1. The motions to vacate our mandate and expunge our opinion.

a. Jurisdiction.

It is asserted that we acted without or in excess of jurisdiction. This ground is rejected. The argument is that we treated the papers on appeal as an application for an appropriate writ, but did not have the moving papers served on Judge Clarke as respondent. As our opinion shows, our treating the matter as an application for a writ was pursuant to Cord's request, the appealability of the order being in doubt, and the matter was heard on the merits on that basis. No objection to this procedure was then voiced by Smith or by Young. Having concluded that the order refusing to disqualify Young was not appealable, we proceeded to treat the matter as a proceeding under the All Writs Act, 28 U.S.C. § 1651.

The objection comes too late. We do not think that it goes to jurisdiction in any fundamental sense. Ordinarily, the filing of a notice of appeal brings the whole case to this court, and this court can then make such orders, directed to the court that tried the case, as may be proper.² Yet the trial court is not technically a party to the case on appeal. In form, a proceeding under the All Writs Act is different, in that the court is nominally a party to the proceeding. In substance, however, and almost universally in practice, the burden of the litigation is carried by the real parties in interest rather than by the respondent court, just as it was here.³ All papers were served on Smith, through his counsel, Young, and both Smith and Young were fully represented and their position was considered on its merits.

Insofar as our mandate can be said to affect Judge Clarke, rather than Smith or Young, the procedural defect relied upon has now been cured. At his own request, Judge Clarke has been made a respondent. And, if there was ever a doubt as to whether he should have been permitted to hear any further proceedings in the case, that doubt has now been removed. In his affidavits he has taken the position of a litigant, aligned on the Smith-Young side of the case. Under those circumstances, it would certainly be improper for him to continue to act as a judge in the matter.⁴

b. Fraud.

In essence, the claim of Smith and Young, and of Judge Clarke, is that Cord's attorney Olson entered into an agreement with them that Olson would not appeal if the Judge refused to disqualify Young, that in reliance on the agreement Smith and Young refrained from presenting certain material testimony, and that as a result the case was presented to us on a record that did not speak the truth. Thus it is claimed that our decision was obtained by fraud and should be set aside.⁵

On this issue, numerous and detailed affidavits have been filed. The agreement is said to have been made at a conference in Judge Clarke's chambers, and its alleged terms are set out in detail in affidavits by Young...