Henry v. Speer
| Decision Date | 07 January 1913 |
| Docket Number | 2,350. |
| Citation | 201 F. 869 |
| Parties | HENRY v. SPEER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
C. S Henry petitions this court for a rule against Hon. Emory Speer, United States District Judge for the Southern District of Georgia, and against the District Court of the United States for that district, to show cause why writ of mandamus should not issue commanding them to send an authenticated copy of a certain affidavit of disqualification filed by C S. Henry in the equity cause of C. S. Henry v. E. B. Harris pending on the docket of that court and the proceedings had thereon, to the senior circuit judge for the Fifth Circuit then in the circuit, and to desist from retaining or exercising any further jurisdiction in said cause.
The complainant in the court below sought to avail himself of the provisions of section 21 of the Judicial Code of the United States (January 1, 1912), and made and filed an affidavit accompanied by certificate of counsel of record, whereby he undertook to disqualify the judge of the district from sitting in and deciding the cause in which he was complainant because of alleged bias and prejudice of the judge. This affidavit is as follows:
It appears that, after filing this affidavit with certificate of counsel, the attorneys for the petitioner moved the judge to have an authenticated copy thereof forthwith certified to the senior circuit judge, then present in the circuit. Thereupon the judge proceeded to determine as to the legal sufficiency of the affidavit, and also to hear evidence upon the question of the existence vel non of the bias or prejudice on his part as charged and alleged therein. This hearing resulted in an order overruling the petitioner's motion, dismissing the affidavit, and assigning the cause in which the affidavit was filed for hearing on its merits. The cause of action in which the affidavit was filed arose and was commenced long prior to January 1, 1912, the time when the Judicial Code by its terms took effect and went in force.
W. D. McNeil and M. Felton Hatcher, both of Macon, Ga., for petitioner.
Arthur L. Dasher, Jr., and Malcom D. Jones, both of Macon, Ga., and Andrew J. Cobb, of Athens, Ga., for respondent.
Before PARDEE, Circuit Judge, and NEWMAN and MEEK, District Judges.
MEEK District Judge (after stating the facts as above).
The questions to be determined are: (1) In view of the time of the accrual of complainant's alleged cause of action and commencement of this suit was he entitled to avail himself of the provisions of section 21 of the Judicial Code? requirements of this section? (3) What duty was imposed upon the judge upon the filing of the affidavit and certificate of counsel?
Section 21 of the Judicial Code of the United States January 1, 1912, reads as follows:
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...to be otherwise granted unconditionally." 8 Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379; Henry v. Speer, 5 Cir., 201 F. 869. 9 Sec. 1, Chandler Act, June 22, 1938, c. 575, 52 Stat. 840, 11 U.S.C.A. § 108, sub. a; Bankruptcy Act of 1898, c. 541, § 68, sub. a......
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United States v. Gilboy, Crim. No. 12880.
...the affiant or in favor of an adverse party. Berger v. United States, supra, 255 U.S. at page 32, 41 S.Ct. at page 232; Henry v. Speer, 5 Cir., 1913, 201 F. 869, 872; Cole v. Loew's Inc., supra, 76 F.Supp. at page 875. "Personal", the significant word of the statute, is in contrast with "ju......
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