United Family Life Insurance Company v. Barrow, 71-1611.
| Citation | 452 F.2d 997 |
| Decision Date | 17 November 1971 |
| Docket Number | No. 71-1611.,71-1611. |
| Parties | UNITED FAMILY LIFE INSURANCE COMPANY, Petitioner, v. Allen E. BARROW, United States District Judge for the Northern District of Oklahoma, et al., Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
V. P. Crowe, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., Ellis Gable, Gable, Gotwals, Hays, Rubin & Fox, Tulsa, Okl., William H. Major, Heyman & Sizemore, Atlanta, Ga., for petitioner.
James L. Kincaid and Irvine E. Ungerman, Tulsa, Okl., for respondent.
Before HILL, SETH and BARRETT, Circuit Judges.
The petitioner, United Family Life Insurance Co., the defendant in Case No. 71-C-85, brought this original action seeking a writ of mandamus or prohibition to have the United States District Judge disqualified to proceed further in the case. The petitioner had previously filed an affidavit of disqualification pursuant to 28 U.S.C. §§ 144 and 455, but the Judge, respondent herein, refused to step down. A formal order refusing to disqualify was entered.
Case 71-C-85 is a suit brought by Mrs. Linda Vance Mullendore against the petitioner insurance Company to collect upon three policies written on the life of her deceased husband. The policies total fifteen million dollars in face amount. The suit was filed on February 23, 1971, in a State Court, removed to the United States District Court for the Northern District of Oklahoma, May 7, 1971, and assigned to the respondent Judge Allen E. Barrow. Another suit had theretofore (June 1, 1970) been brought against the deceased by the First National Bank of Atlanta for $121,000.00 on a promissory note. This suit was assigned to Judge Barrow.
On April 2, 1971, the Northwestern Mutual Life Insurance, a first mortgagee, filed a suit for four million dollars, and to foreclose its mortgage on the Cross-Bell Ranches and against the deceased, and Mr. and Mrs. Eugene C. Mullendore II, the owners and mortgagors of the ranches.
This case, No. 71-C-128, was assigned to Judge Barrow. Also the Ponca City Production Credit Association, the second mortgage holder on the ranches was named a defendant and cross-claimed to foreclose its mortgage on the ranches and to foreclose its first mortgage on the livestock. The Production Credit Association in 71-C-128 also sought the appointment of a receiver for the property.
A hearing was set in No. 71-C-128 relative to the appointment of a receiver, but the day before the hearing, Eugene C. Mullendore II and his wife, the parents of the deceased E. C. Mullendore III, filed an action pursuant to Chapter XI of the Bankruptcy Act. Judge Barrow was also assigned to handle these proceedings. This is Case No. 71-B-400 and the debtors therein alleged that the secured creditors were owed about nine million dollars, the unsecured creditors about one-half million, and that the ranch is worth about nine million dollars. These debtors, the senior Mullendores, have entered into a contract with Mrs. Linda Vance Mullendore, the beneficiary of the life policies the subject of 71-C-85, whereunder the debts of the ranches will be paid from the proceeds of the policies after payment of the first five million thereof to the beneficiary. The proposed plan in the Chapter XI proceedings, contemplates that the proceeds of the policies, pursuant to this contract, be used to satisfy the mortgages, pay the creditors and be used to operate the ranches.
Judge Barrow held hearings in the four cases simultaneously on May 6, 1971. After argument and several consultations with the parties, jointly and separately, he permitted the senior Mullendores, and the Chapter XI receivers to intervene in the suit against petitioner on the life policies (No. 71-C-85).
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