Ex parte N. K. Fairbank Co.

• Decision Date: 29 February 1912
• Docket Number: 911.
• Citation: Ex parte N. K. Fairbank Co., 194 F. 978 (M.D. Ala. 1912)
• Parties: Ex parte N. K. FAIRBANK CO.
• Court: U.S. District Court — Middle District of Alabama

194 F. 978

Ex parte N. K. FAIRBANK CO.

No. 911.

United States District Court, M.D. Alabama, Northern Division.

February 29, 1912

Additional Opinion, March 12, 1912.[Copyrighted Material Omitted]

This was an application on behalf of the N. K. Fairbank Company that the presiding judge recuse himself on the trial of the case of the Jackson Lumber Company v. N. K. Fairbank Company.

On the 20th of February, 1912, the clerk of the court called the attention of the presiding judge to the following letter from Mr. J. F. Merryman:

'St Louis, Mo., February 12, 1912.

'To the Clerk of the U.S. District Court, Montgomery, Ala. -- Dear Sir: I am inclosing you herein an application for a change of venue and the affidavits of certain officials of the N. K. Fairbank Co. in the case of the Jackson Lumber Company, a corporation, plaintiff, v. The N. K. Fairbank Co., a corporation, defendant, now pending in your court.Please call the attention of Judge Jones to these affidavits and this application, all of which are made under the new Judicial Code, which went into effect on the 1st day of January, 1912.I am,

'Very respectfully, (Signed)J. F. Merryman.'

The clerk replied that the papers had been filed on the 14th of February, but were not presented to the presiding judge until the 20th of February, on account of a death in the judge's family.

The facts alleged in the petition, to state them in their chronological order, were as follows: On November 22, 1911, the presiding judge received the following letter from Circuit Judge D. D. Shelby:

'United States Circuit Court of Appeals, Fifth Circuit.

'David D. Shelby, U.S. Circuit Judge.

'New Orleans, La., Nov. 22, 1911.

'Hon. Thomas G. Jones, United States Judge, Montgomery, Alabama -- My Dear Judge Jones: See inclosed a copy of a petition presented here.I doubt if a judge could be found at this time to go to Montgomery, and we would not like to designate one unless we first heard from you that you could not hear the case.No reason is stated in the petition why the case has not been heard since its removal to the federal courtNovember 19th, 1907, but, so far as the petition shows, it may not have been at issue.It occurred to me that if you were informed of the petitioner's anxiety for a trial, you might set it down for hearing at an early date and that this would be satisfactory to all parties.I know that recently you have been very much engrossed by the hearing of important cases, but you may have a chance at some time soon to give these parties a hearing.

'Yours sincerely, (Signed)David D. Shelby.'

The letter inclosed the following petition:

'In the Circuit Court of the United States for the Middle District of Alabama, at Montgomery.No. . . ..

'Jackson Lumber Company v. The N. K. Fairbank Company.

'To the Honorable the Circuit Judges of the Fifth Circuit:

'The petition of the N. K. Fairbank Company, defendant in the above-entitled cause, with respect, shows that the same was removed into said court from the circuit court of Covington county, state of Alabama, on the 19th day of November, 1907, and the transcript duly filed in said Circuit Court of the United States, on the 4th day of December, 1907, as will appear by reference to the certificate of the clerk hereto annexed, and made a part hereof; that, in spite of diligent effort, your petitioner has been unable, up to the present time, to secure a trial of said cause; that, at very great expense, it has procured the attendance of witnesses at said court, expecting and urging a trial, but various matters and things intervened to prevent; that one of its witnesses has already died, and there is danger of others, whose oral testimony is desired, becoming scattered and rendering it impossible for petitioner to secure their attendance; that his honor, the presiding judge of said court, has recently announced his purpose to hold a court for two weeks at Dothan, Alabama, and will not resume the trial of causes in said Circuit Court at Montgomery until late in December, and that petitioner has reason to believe, and does verily believe, that, unless another judge shall be presently assigned to hold said court, at Montgomery, for the trial of said cause among others, petitioner will be greatly delayed through no fault of its own, and may lose the opportunity to present its defense fully as it desires and is now able to do.And petitioner represents that, in (sic) replying (applying) for the assignment of a District Judge to hold said court temporarily, or during the absence of the presiding judge, no disrespect whatsoever is meant to the latter.

Prayer.

'The premises considered, your petitioner respectfully prays that it may please your honor to assign and direct a District Judge to proceed and hold said court, within some short date, for the purpose of trying and disposing of said cause at least; and that the clerk of said court be directed to notify all parties of such assignment.And, as in duty bound, etc.

'(Signed) T. M. & J. D. Miller, Attorneys for Defendant.

'United States Circuit Court, Middle District of Alabama.

'Jackson Lumber Company v. N. K. Fairbank Company.

'I, Harvey E. Jones, clerk of said court, do hereby certify that the abovestated cause was removed from the circuit court of Covington county, state of Alabama, to the Circuit Court of the United States for the Middle District of Alabama, on the 19th day of November, 1907, and that the transcript from the state court was filed in this court on the 4th day of December, 1907; that said case is still pending on the docket of said court, and has never been tried.

'In witness whereof, I have hereunto set my hand and official seal, this the 13th day of November, 1911.

'(Signed)Harvey E. Jones,

'(Seal) Clerk Circuit Court of the United States for the Middle District of Alabama.'

The presiding judge replied as follows to Judge Shelby:

'Montgomery, Ala., November 23, 1911.

'Hon. D. D. Shelby, U.S. Circuit Judge, New Orleans, La.-- My Dear Judge: I have yours of the 22d inst. inclosing a copy of the petition of Messrs. T. M. & D. J. Miller relative to the trial of the case of the Jackson Lumber Company against the N. K. Fairbank Company.

'These gentlemen have never appeared in this court, and it is only charitable to suppose that the petition they file, with the evident inferences they seek to have drawn therefrom, was filed in ignorance of the truth.One would suppose, from reading the petition, that the case had been in this court since the 4th of December, 1907, all the time at issue, and that the defendant never had an opportunity for a trial.The truth is directly the reverse. it is a suit commenced against a nonresident by attachment in the state court and removed to this court, and was not at issue until the spring term, 1908, which commenced on the first Monday in May of that year.At that term I was holding a very heavy criminal docket and the rate litigation pressed heavily upon me and at times I was in the Northern district.My recollection is that the common-law docket was not called at that term as it was impossible to do so.Mr. Dimmick, who was then clerk of the court was in bad health and seems to have taken no pains to have entered up anything, except where judgments were rendered, and did not enter up upon the docket the various continuances and why they were taken.I inclose a certified copy of the docket with the entries made upon it by him in his lifetime down to 1911, when the present clerk took office and entered the last order of continuance.

'Refreshing my recollection from conversations with Mr. Ball, local counsel for the Fairbank Co., and Mr. Holloway, attorney for the plaintiff, I recall that this case was called for trial among others in 1909, and that in consequence of some long drawn out and bitter litigation in cases ahead of it, that it was thought best to let the case go over for the term.At another term the case was set down for trial and owing to the extremely hot weather, at the unanimous request of the bar, the common law docket was continued for the term.I have an impression, tho I am not sure this is the case, that it once went over on account of the death of a member of the family of one of the attorneys.On the 26th of December, 1910, the defendant filed the last of its depositions.

'At the May term this year, although I had a son who was critically ill and who afterwards died, the docket was regularly called and this case set down for trial.On the date fixed, May 9, it was continued at the instance of the plaintiff because W. S. Harlan, the president of the plaintiff company and a material witness, was then serving a term in the Federal Penitentiary at Atlanta for peonage.This did not cause an attendance of witnesses because counsel notified the other side in advance.His term of service would expire before the next term of the court, and he was the main witness for the plaintiff and at their instance the case was continued for the term, and while the defendant's attorneys did not consent to it, the justice of that disposition of the case was not contested.More than this, I had several conferences with the local counsel of the Fairbank Company, Messrs. Ball & Samford, and had taken the pains to explain to them why I could not tell them the exact date when the civil docket would be called again here-- whether in October or December, or possibly in January.These gentlemen were informed that the Rate Cases had been set down for argument in October and that there were a number of pressing matters to be disposed of here, among them the Mobile Depot Case and the litigation between the light companies and also much business in bankruptcy and some cases where the...