Millslagle v. Olson, 12064.
| Decision Date | 31 August 1942 |
| Docket Number | No. 12064.,12064. |
| Citation | 128 F.2d 1015 |
| Parties | MILLSLAGLE v. OLSON, Warden of Nebraska State Penitentiary. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before STONE, GARDNER, and RIDDICK, Circuit Judges.
By order, entered upon a per curiam opinion, this appeal was dismissed because no certificate of probable cause was made as required by statute (28 U.S.C.A. § 466), the appeal being from denial of the writ of habeas corpus seeking release from imprisonment in a State penitentiary for violation of State law. The present matters consist of: (1) an affidavit of prejudice, (2) "Statement in forma pauperis", (3) a request for appointment of counsel and (4) a motion for rehearing.
(1) The affidavit of prejudice seeks to disqualify not only the above three Judges who made up the Court entering the above order of dismissal, but all of the active and retired Judges of this Court. It includes even one Judge who has been dead for more than three years. The statute (Title 28 U.S.C.A. § 25), of which appellant seems to be trying to avail himself, does not apply to courts of appeals. Duke v. Committee, etc., 65 App.D.C. 284, 82 F.2d 890, 895; Kinney v. Plymouth Rock Squab Co., 1 Cir., 213 F. 449, and see Tjosevig v. United States, 9 Cir., 255 F. 5, 6. Even if the statute were applicable, this affidavit is fatally defective in statement of "the facts and the reasons for the belief" of prejudice and is not filed in time. It fails to comply with the statutory requirements (Title 28 U.S.C.A. § 25) in each of those vital respects. The affidavit of prejudice is denied.
(2) The "Statement in forma pauperis" is in affidavit form and seeks "leave to file and proceed with the attached Motion for rehearing as an impecunious person." Heretofore, appellant has been granted leave (by the trial court) to prosecute his appeal in forma pauperis; and this Court has granted leave to present his appeal upon typewritten record and briefs. Such leave by this Court includes any motion for rehearing. Granting the presently sought leave could add nothing since appellant has now the right he is thus seeking. For the sole purpose of disposing of this matter, this leave is denied without prejudice to appellant proceeding in forma pauperis under the leave heretofore granted.
(3) The request for appointment of counsel is granted and the Court will endeavor to secure such counsel resident at or near Lincoln, Nebraska, so that such counsel may conveniently confer with appellant.
In connection with the action of counsel to be useful to appellant, a situation is present which suggests attention. That situation is caused by the circumstance that appellant has now filed a motion...
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Hepperle v. Johnston
...incorrectly bases his motion upon28 U.S.C. § 144 (1976), which by its terms applies only to district judges. See Millslagle v. Olson, 128 F.2d 1015 (8th Cir. 1942). Construing the Pro se motion liberally as a motion for disqualification under 28 U.S.C. § 455 (1974), 8 we deny the motion. Th......
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Matter of Pritchard & Baird, Inc.
...Cohn, 255 F.2d 99 (6th Cir. 1958), it was held that 28 U.S.C. § 144 does not apply to a referee in bankruptcy. See also Millslagle v. Olson, 128 F.2d 1015 (8th Cir. 1942), holding that 28 U.S.C. § 144 is inapplicable to the circuit court of appeals, and Tjosevig v. United States, 255 F. 5 (......
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Pilla v. American Bar Ass'n
...shall be assigned to hear it. It has been held squarely that the section does not apply to a federal appellate judge. Millslagle v. Olson, 128 F.2d 1015 (8th Cir. 1942); Kinney v. Plymouth Rock Squab Co., 213 F. 449 (1st Cir. Section 455 is a broader statute in that it applies to members of......
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Ginger v. Cohn, 13366.
...only to a district judge. It has directly been held that this statute does not apply to a circuit court of appeals, in Millslagle v. Olson, 8 Cir., 128 F.2d 1015; nor to appellate tribunals. Kinney v. Plymouth Rock Squab Co., 1 Cir., 213 F. 449. Nor does it apply to a territorial court. Tjo......