Saunders v. Piggly Wiggly Corporation

• Decision Date: 17 September 1924
• Docket Number: 831.,No. 830,830
• Citation: 1 F.2d 582
• Parties: SAUNDERS v. PIGGLY WIGGLY CORPORATION. PIGGLY WIGGLY CORPORATION v. SAUNDERS et al.
• Court: U.S. District Court — Western District of Tennessee

1 F.2d 582 (1924)

SAUNDERS v. PIGGLY WIGGLY CORPORATION.

PIGGLY WIGGLY CORPORATION v. SAUNDERS et al.

Nos. 830, 831.

District Court, W. D. Tennessee, W. D.

September 17, 1924.

FitzHugh, Dixon & Osoinach, of Memphis, Tenn., for Piggly Wiggly Corporation.

J. W. Cutrer, of Clarksdale, Miss., and C. H. Williams, of Memphis, Tenn., for Saunders.

ROSS, District Judge.

In these consolidated causes a motion was filed on the 3d day of September, 1924, by plaintiff in No. 830, who is one of the defendants in No. 831, with a view of having the regular judge of this court recuse himself in order that another judge may be designated to try the questions involved in the litigation. The authority for filing such motion is to be found in section 21 of the Judicial Code, the same being the Act of March 3, 1911, c. 231, § 21, 36 Statutes at Large, 1090 (Compiled Statutes, § 988. This section is as follows:

"Whenever a party to any action or proceeding, civil or criminal, 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 in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; 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. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action."

Prior to the Act of March 3, 1911, quoted above, there existed no such remedy in Federal courts, although it appears from investigation that such provisions have long existed in some of the states of the Union.

Notwithstanding the seemingly arbitrary provision of the section quoted, that when such an affidavit is filed the judge shall proceed no further in the matter, the decided weight of authority is that it is the duty of the judge to pass upon the legal sufficiency of the motion. Such is the holding in effect of the Supreme Court of the United States in Berger et al. v. United States, 255 U. S. 22, 41 Sup. Ct. 230, 65 L. Ed. 481, the latest utterance of that court on this question. By this same authority it is held that it is not within the province of the judge, in whose court the motion is filed, to pass upon the truthfulness or falsity of the facts embraced in the affidavit required to be made in support of the motion, nor could counter affidavits of any of the parties mentioned in the motion be heard or considered if offered. Consequently it becomes the duty of the court to test whether the motion in these cases is legally sufficient to accomplish the object sought. In so doing, under the authorities, no consideration can be given as to whether the facts set out in the affidavit are true or false, but for the purpose of determining whether the motion is good in law the facts must be assumed to be as stated. For this purpose, and this purpose alone, the matters contained in the affidavit filed in support of the instant motion will be so treated, regardless of the truthfulness or falsity of such statements.

If the judge of this court were at liberty to exercise his personal inclination, the object sought by the motion would be allowed, without considering the question of even the legal sufficiency, for the reason that in no instance does the judge of this court personally desire to pass upon the rights of parties to a suit wherein either litigant is possessed of the belief that he may not receive justice at the hands of the court, or when even a doubt exists in the mind of such litigant as to whether or not justice may be done him. However, courts are not warranted in thus easily avoiding responsibilities or thrusting aside duties, and where, by virtue of the position occupied and the law, a duty rests upon a court, that duty should be met and discharged in the manner in which the law contemplates, regardless of the personal desires or inclinations of the judge holding such court. There are doubtless many instances arising in the course of the administration of practically all courts where the judge would prefer not to assume certain responsibilities, or perhaps to be relieved of the burden of determining certain questions, but to seek such relief, except when there exists a conscientious belief that for some particular reason the judge should not preside over a case or determine the questions involved therein, would be a conscious failure on his part to meet the obligations of his office and wholly unwarranted from any viewpoint.

The various phases of section 21 above have been passed upon or discussed by the Supreme Court of the United States in Ex parte American Steel Barrel Co., 230 U. S. 35, 33 Sup. Ct. 1007, 57 L. Ed. 1379, and Berger v. United States, supra. United States District Courts and Circuit Courts of Appeals have had the section before them for discussion and for determination as to certain of its provisions in the following cases: Ex parte N. K. Fairbank Co., 194 Fed. 978 (Dist. Court, Middle Division, N. Dist. Ala.); Ex parte Glasgow, 195 Fed. 780 (Dist. Court, N. Dist. Ga.); Henry v. Spear, 201 Fed. 869, 120 C. C. A. 207 (C. C. A. 5); In re Ulmer, 208 Fed. 461 (D. C. N. Dist. Ohio, Eastern Division); Kinney v. Plymouth Rock Squab Co. et al., 213 Fed. 449, 130 C. C. A. 586 (C. C. A. 1). The only question considered in this case is whether or not section 21 applies to appellate courts and it is determined in this case that it does not. In re Equitable Trust Co. of N. Y., 232 Fed. 836, 147 C. C. A. 30 (C. C. A. 9); Shea v. U. S., 251 Fed. 433, 163 C. C. A. 451 (C. C. A. 6); Wierse v. U. S., 252 Fed. 435, 164 C. C. A. 359 (C. C. A. 4); Tjosevig et al. v. U. S., 255 Fed. 5, 166 C. C. A. 333 (C. C. A. 9); Keown v. Hughes, 265 Fed. 572 (C. C. A. 1).

The cases above cited likewise cite and quote from a number of others on the same subject, and it is believed that the cases herein cited and those cited by them are the principal ones which discuss and construe the section in question. While a consideration of these cases is interesting, yet it is not deemed necessary to enter into any discussion of the questions determined by them, further than as special reference may be made to certain of them hereinafter.

Before a litigant can have the presiding judge, who otherwise would hear the case, removed, and another judge substituted, the first essential under section 21 is that it shall be shown that the presiding judge has a "personal bias or prejudice" either against such litigant or in favor of some opposite party to the suit. Clearly this should be a personal bias or prejudice which would influence the judge in the determination of the case. The words "personal bias or prejudice" carry with them the idea of such personal dislike of a litigant as an individual or party to the suit, or such personal favoritism or regard for some opposite party to the suit, as that the mind of the judge will be swayed or prevented by the one or the other from an impartial consideration of the merits of the controversy. Unless this personal bias or prejudice is established, the provisions of section 21 are not available. To merely charge in the words of the section that such personal bias or prejudice does exist is not sufficient, but it is incumbent upon the litigant, seeking to avail himself of the benefits of section 21, to go further and to state by affidavit "the facts and the reasons for the belief that such bias or prejudice exists," that such affidavit shall be filed not less than 10 days before the beginning of the term of the court, or that good cause shall be shown for the failure to file it within such time.

Furthermore no party shall be entitled to file more than one such affidavit in any case, and no affidavit shall be filed, unless accompanied by a certificate of "counsel of record" that such affidavit and application are made in good faith. Manifestly it was not the intention of Congress, in the enactment of this section, to put it within the power of every dissatisfied or disgruntled litigant to file a mere charge of personal bias or prejudice, and thereby prevent the case being heard by some particular judge; but it is required of such litigant the further duty of filing an affidavit from which it may be determined from the charges made whether those charges, if taken as true, legally support the conclusion in the mind of the litigant that such bias or prejudice exists or whether to a reasonable mind they may be so considered. Ex parte N. K. Fairbank Co., supra. Clearly, if they should be frivolous or immaterial, or insufficient in law for any reason, the application should be denied. It would appear that any other construction of the statute would place it within the power of a litigant to virtually prevent a case ever being heard, if he so desired. Nor was it the intention of Congress to put it within the power of an oversensitive litigant, however honest he might be in his belief, to remove a judge merely because there existed in the mind of such litigant some imaginative reason or belief that the judge had formed a dislike for him, or within the power of a litigant to avail himself of this section by adroitly drawn and carefully considered insinuative statements, which apparently upon their...