Wright v. Mathias

QUINN, Associate Judge. Appellant, a re.al-estate salesman, sued defendant, a real-estate broker, for the balance due on a series of twenty-three commissions allegedly earned while in his employ. In his complaint plaintiff detailed each transaction and the sum still owing. The answer was a general denial, whereupon plaintiff, by a request for admissions, elicited information that only -eight commissions were actually disputed by defendant. In tills posture the cáse went to trial, without a jury, and plaintiff moved that the answer be stricken because the admissions showed that a general denial should not have been filed in view of the fact that, all the transactions were not controverted and thus the pleading violated a rule of the trial court. 1 . The mo.tion was denied and defendant was permitted to file an amend.ed answer. Plaintiff then moved that the amended answer be stricken because it was not ..signed by defendant’s counsel.; 2 , this motion was also denied. After hearing the court found for plaintiff in an amount much less than the claimed amo.untt.". . At the outset plaintiff urges reversal because the trial court did not enforce the various rules which defendant had allegedly, violated, -nor did he grant plaintiff a hearing on his motion to secure enforcement. While, of course, the rules of the court are equally-binding.on judges and litigants, we are not unmindful of Rule 8(f) which requires all pleadings to be so construed as to do substantial justice and Rule IS which' directs the trial judge to grant leave to amend freely when justice so requires. Plaintiff contends that the general denial was interposed in retaliation against him because he did not' agree to settlement, 'although defendant controverts this point. Certainly the trial' court was aware of plaintiff’s claims when he denied the motion.' Thus, we áre unable to hold that the trial court abused its discretion in denying plaintiff’s' motions. ' Next, plaintiff contends that the trial court so aligned himself with defendant’s case that he was .denied a fair trial. In view of the seriousness - of the charges, we have carefully . reviewed the stenographic transcript and reach a different conclusion. Plaintiff concedes that where the impartiality of *the trial judge is questioned, the usual practice is for the party before trial to file an affidavit to that effect, requesting that the judge remove himself from the proceeding. 3 Such affidavit was *660 never filed in this case. Nevertheless, plaintiff - claims that here'the alleged bias and prejudice were not demonstrated until trial had begunand that an appellate court has the power to-reverse any- judgment tainted by prejudice, citing Knapp v. Kinsey, 6 Cir., 1956, 232 F.2d 458. We agree that it is within the power of this court so to act. It is fundamental that a fair'trial in a fair tribunal is a basic requirement of due process.’ It follows that fairness requires an absence of actual bias in the' trial of a case. 4 ' A judgment’ obtained in a trial in which the -judge is demonstrably biased'must be‘reversed even' though'the. result is probably correct. 5 As stated by the court in the' Knapp case, supra: “ * * * When the, .rem&rjcs • of the judge during the course , of a trial, or his manner of handling the trial, clearly indicate a hostility to. one of the parties,. or an unwarranted prejudgment of the merits of the .case,- or an alignment on the part of the Court with one, of,.the parties f.or the( purpose of furthering or supporting the contentions , of such' party, .the judge indicates, whether consciously or no.t, a personal bias and .prejudice. which renders invalid any resulting judgment in favor of the party so favored. * * * ” 232 F.2d at page 466. In this case, however, wé are unablé to hold that the trial court exhibited any bias in favor‘of defendant'. -Counsel for plaintiff complains that 'he was barred' from a conference relating to possible settlement which'.-took place in the judge’s chambers before - trial, but his co-counsel was present and participated fully. 'Counsel for plaintiff does not suggest that he was in any way barred from full participation in the actual trial, or deprived of the right to present all his evidence. Plaintiff cites the. various rulings - of the court on his motions -to compel adherence to the rules as indicative of bias; but it is well settled that adverse rulings alone cannot establish bias, especially since such rulings are always reviewable by 'this court. 6 Here there were no remarks by the judge which would show partiality to or alignment with the cause of'defendant,- such as were present in other cases. 7 It is to be noted also that plaintiff, in addition to his failure to file the. affidavit.prescribed by Rule 66, at no time during the trial protested against any supposed unfairness in the conduct or attitude of the judge, arid raiséd the question for ’ the first time ón appeal. ’ In other situations similar to this we'have held that this' is too late. 8 Some' indication; or protest should have been made during the trial, or at least on a motion for a new trial, but no such motion was filed in this case. But aside from these procedural steps, if this court, in reviewing the record, was satisfied that there was bias, it would not hesitate to' grant a'riew trial. Failing to" find such, the case must be affirmed. Other errors alleged by appellant we regard as without merit. Affirmed. Footnotes [1] Municipal Court Civil Rules 8(b) and 11. [2] Bule 11. [3] Buie 66. [4] 5. In re Murchison, 1955, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942. [5] Whitaker v. McLean, 1941, 73 App.D.C. 259, 118 F.2d 596. [6] Berger v. United States, 1921, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481; Knapp v. Kinsey, supra, 232 F.2d at page.466. [7] Gaddis v. Hongell, D.C.Mun.App.1955, 117 A.2d 230; Knapp v. Kinsey, supra. [8] Lyons v. Sockwell, D.C.Mun.App., 1952, 91 A.2d 847, 848, and cases cited therein.