Henry v. Speer

MEEK, District Judge (after stating the facts as above). The questions to be determined are: (1) In view of the time of the accrual of complainant’s alleged cause of action and commencement of this suit — 871 — was he entitled to avail himself of the provisions of section 21 of the Judicial Code? (2) If so, did the affidavit made and filed by him meet the requirements of this section? (3) What duty was imposed upon the judge upon the filing of the affidavit and certificate of counsel? [1] Section 21 of the Judicial Code of the United States January 1, 1912, reads 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 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.” It is contended that because the alleged action in which the affidavit was filed- arose and was commenced prior to the time the Judicial Code became effective the provisions of section 21 may not be availed of therein to disqualify the judge. This contention is based on section 299 of the Code, which declares in part: “The repeal of existing laws, or the amendments thereto, embraced in this act, shall not affect any act done, or any rights accruing or accrued, or any suit or proceeding * * * pending at the time of the taking effect of this act, but all such suits and proceedings for acts arising or for acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendment had not been made.” This section manifestly pertains to the acts and rights of parties as those acts and rights are involved in the commencement and prosecution of suits and controversies. They may commence and prosecute their causes' “within the same time and with the same effect as if said repeal and amendment had not been made.” Section 21 does not affect the acts done by nor the rights accruing to litigants in the sense this language is used in section 299. We are of opinion that section is-entirely irrelevant in this connection. Section 21 has to do with the (personality of the judge before whom the suit is to be tried and rights established. It is remedial in its nature; that is, it is meant to afford relief from adventitious predicaments whic-h fair-minded men recognize should be relieved against, when they in fact exist. In affording this relief the Congress has expressed itself plainly and perspicuously. It is not difficult to arrive at its true intent and meaning. We hold the provisions of section 21 to be available, even though the cause of action in which they are invoked arose and was commenced before the time the Judicial Code became effective. [2] In the enactment of section 21 the plain purpose of the Congress was to afford a method of relief through which a party to a suit may avoid trial before a judge having a personal bias or prejudice — 872 — against him or in favor of the opposite party. That sought to be relieved against is a personal bias or prejudice — a bias or prejudice possessed by the judge specifically applicable to or directed against the suitor making the affidavit or in favor of his opponent. The statute qualifies the words bias and prejudice by the single word “personal.” The deponent in the affidavit filed below failed to use the qualifying word “personal” in making oath to the existence of bias or prejudice on the part, of the judge before whom the case was to be tried. It is contended that the use Of the word in the statute, in view of the context, is merely cumulative and tautological; that'it n^ be omitted from the affidavit, and still the quality of bias or prejudice will be revealed to be personal. But the statute requires.the use of the word, 1 and it may not be avoided. Owing to the nature of the statute and its liability to abuse, we are inclined to hold those seeking to avail themselves ,of it ,to a strict and full compliance with its provisions. The affidavit filed below illustrates the necessity for such compliance. Its perusal reveals the facts and reasons advanced in support of the charge of bias and prejudice do not tend to show the existence of a personal bias or prejudice on the part of the judge toward petitioner but rather a prejudgment of the merits of the controversy and “against deponent’s right to recover:” Section 21 is not intended to afford relief against this situation. [3] Upon the making and filing by a party of an affidavit under the provisions of section 21, of necessity there is- imposed upon the judge the duty of examining the affidavit to determine whether or not it is the affidavit specified and required by the statute and to determine its legal sufficiency. If he finds it to be legally sufficient then he has ho other or further duty to perform than .that prescribed in section 20 of the Judicial Code. He is relieved .from the delicate and trying duty of deciding upon the question of his own disqualification. The judge having correctly ruled that the affidavit herein filed was not the affidavit specified and required by the statute, the duty was not imposed upon him to comply with the provisions of section 20. The petition for mandamus will be denied.