Peckham v. Ronrico Corporation
| Decision Date | 11 April 1961 |
| Docket Number | No. 5596.,5596. |
| Citation | 288 F.2d 841 |
| Parties | R. E. PECKHAM, etc., Appellant, v. RONRICO CORPORATION et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Jay E. Darlington, Hammond, Ind., for appellant.
Jose G. Gonzalez, San Juan, P. R., with whom Ruben Rodriguez-Antongiorgi and Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., were on brief, for appellees.
Before WOODBURY, Chief Judge, MARIS,* Senior Circuit Judge, and HARTIGAN, Circuit Judge.
This is another appeal in protracted litigation in this court and in the United States District Court for the District of Puerto Rico.1 This time appeal is taken from a judgment dismissing the plaintiff-appellant's complaint and intervening claim with prejudice and ordering entry of judgment for the defendants, with costs, and also from a subsequent order of the court below denying the appellant's motion as plaintiff and intervenor for a new trial. The only relief the appellant seeks is a new trial, presumably before another judge, on the ground that the judge who tried the case had a personal bias and prejudice against the appellant and his counsel and in favor of the defendants.
After the mandate in accordance with this court's opinion of April 13, 1954 (211 F.2d 727), went down on May 17, several motions of one sort or another were filed in the court below and orders entered thereon, and on September 29, 1954, the defendants moved that a date be set for trial. Acting in response to that motion the court on the same day set the case for trial on December 6, 1954. The plaintiff and intervenor filed an opposition to this motion and the court after hearing on October 29, set its previous order aside and fixed February 21, 1955, as the date for trial.
During the summer and fall of 1954 the plaintiff and intervenor filed a number of motions for inspection of the defendants' records many of which after hearing were acted upon favorably in whole or in part. Then, on January 10, 1955, the plaintiff and intervenor filed a motion under Title 28 U.S.C. § 144 for the judge to disqualify himself for bias and prejudice with a supporting affidavit and certificate of counsel as the section requires.2 Two grounds for the motion were asserted in the affidavit filed in its support. One was that the court had manifested hostility to the appellant in the opinion which it had filed nearly two years before on March 31, 1953 (14 F. R.D. 181), denying his motion to intervene and which came before this court on his last appeal, Peckham v. Ronrico Corp., 1 Cir., 1954, 211 F.2d 727. The other was that like hostility on the part of the judge was shown by his remarks in the course of a hearing on November 22, 1954, on opposed motions of the plaintiff and intervenor for inspection of certain documents in the defendants' possession. The court below denied the motion for disqualification as both untimely and insufficient and ordered the affidavit in support of the motion stricken as scandalous. The trial then proceeded on schedule.
The plaintiff and intervenor took forty trial days to present his case in the court below. He alleges on this appeal that during that time the court evidenced such hostility to him and to his counsel and such partiality for the defendants that he was deprived of a fair trial in violation of his constitutional rights.
We think the appellant's motion for disqualification was properly denied by the court below. There is no need to pause to point out the insufficiency of the affidavit filed in support of the motion insofar as concerns allegations of bias and prejudice based on the language used by the court in its opinion of March 31, 1953. It is enough to say that § 144 makes timely filing of affidavits of bias and prejudice of the essence for the obvious purpose of...
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United States v. Hall
...v. Mesta, 141 F.2d 668 (Tenth Cir. 1944); Davis v. Cities Service Oil Company, 420 F.2d 1278 (Tenth Cir. 1970); Peckham v. Ronrico Corporation, 288 F.2d 841 (First Cir. 1961), Eleventh, if in fact a judge is disqualified, a timely affidavit of bias should be filed and if not, it is waived. ......
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United States v. International Business Machines
...a litigant to "sample the temper of the court before deciding whether or not to file an affidavit of prejudice," Peckham v. Ronrico Corp., 288 F.2d 841, 843 (1st Cir. 1961). The reason is clear: the proper time to challenge the merits of judicial acts is on appeal from a final judgment, or ......
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City of Cleveland v. Cleveland Elec. Illuminating Co., Civ. A. No. C75-560.
...or as means to "sample the temper of the court" before deciding whether to raise an issue of disqualification. Peckham v. Ronrico Corp., 288 F.2d 841, 843 (1st Cir. 1961); Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.Ariz.1977). As stated in a recent There are strong policy reasons ......
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McClenny v. Superior Court of Los Angeles County
...holding); Dagley v. Dagley (Mo.App.1954) 270 S.W.2d 553; State v. Taylor (1928) 42 N.M. 405, 79 P.2d 937; Peckham v. Ronrico Corp. (1st Cir. 1961) 288 F.2d 841; State v. Smith (1942) 220 Ind. 536, 45 N.E.2d 204; Marsin v. Udall (1955) 78 Ariz. 309, 279 P.2d 721.) We have found only one case......