Johnson v. United States

• Court: U.S. District Court — Western District of Washington
• Writing for the Court: BOURQUIN
• Citation: Johnson v. United States, 35 F.2d 355 (W.D. Wash. 1929)
• Decision Date: 10 October 1929
• Docket Number: No. 12653,20016.,12653
• Parties: JOHNSON v. UNITED STATES. DENNIS et al. v. SAME.

35 F.2d 355 (1929)

JOHNSON v. UNITED STATES.

DENNIS et al. v. SAME.

Nos. 12653, 20016.

District Court, W. D. Washington, N. D.

October 10, 1929.

Wm. G. Beardslee and G. K. Betts, both of Seattle, Wash., for plaintiffs.

Lester E. Pope, of Seattle, Wash., for defendant.

BOURQUIN, District Judge.

In these war risk insurance cases set for trial, motions "for a change of venue" are filed, based on affidavits evidently of "stock" form; for they are identical in language, save that in the latter the masculine pronouns of the former, where not unchanged, are in instances worked over to the feminine. The latter, omitting formal parts, is as follows:

"That the plaintiff believes that the Honorable George M. Bourquin, Judge of the above entitled Court, before whom said cause is pending, is prejudiced in favor of the defendant herein, and therefore she can not have a fair and impartial trial before said George M. Bourquin as Judge. In support of this affidavit of prejudice, affiant alleges as follows:

"That she has been informed and believes, and therefore alleges as true that the said George M. Bourquin, Judge of the above entitled Court, has expressed himself as not in favor of these cases; that he, the said George M. Bourquin believes and has said that Congress should pass an Act prohibiting the suits on war risk insurance policies; that the claimants in said suits are engaged in a concertive effort to rob the United States Treasury, and to break the Government by means of trickery and perjury, and he has further been informed and believes and therefore alleges as true that said George M. Bourquin has expressed himself as saying that none of the claimants in war risk insurance actions would recover in a trial before him as Judge so long as said claimant could raise his hand; that said Judge has further expressed himself as believing that the Government has been good to the war veterans, and that they deserve nothing more from said Government; that in view of the said remarks by the said George M. Bourquin, the affiant believes that a fair and impartial trial before the said Judge is impossible, and that by reason of such prejudice the said Judge should be disqualified from trying this cause.

"The affiant further states that the facts herein alleged were not brought to her knowledge before October 3d, 1929, and that for that reason she could not file this affidavit of prejudice and motion for change of venue sooner.

"Affiant further says that because the said George M. Bourquin is not a regular Judge of this District she could not file her affidavit of prejudice ten days before the beginning of the term."

They are accompanied by a certificate of counsel "that he believes this affidavit and application for a change of venue has been made in good faith."

As no statute authorizing a change of venue in present circumstances is cited or found, the motions are denied.

It may be, however, that the intent is to invoke section 25, Title 28, USCA, which provides that: "Whenever a party to any action * * * shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated. * * * Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, * * * and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith."

This section invoked, it is settled law, that however false and libelous be affidavit and certificate, they cannot be even denied, and must be accepted as true; and if in form and substance they comply with said statute and are legally sufficient to give fair support to the charge of bias or prejudice, it is the duty of the judge to retire from the case; if they do not, it is equally his duty to proceed. See Berger v. U. S., 255 U. S. 22, 41 S. Ct. 230, 65 L. Ed. 481, and cases cited; Benedict v. Seiberling (D. C.) 17 F. (2d) 831, and cases cited.

In view of this state of the law, it is appropriate to some scan the background before analyzing the affidavits. The records of the court disclose some scores of like cases, the majority of which were filed this year on the eve of expiration of the extended statute of limitations, most of them in forma pauperis as are these at bar. Counsel for plaintiffs in...