New York-the day that this court at 2 p. m. decided the applications above referred to that had been made to it. The affidavit appears to have been executed in duplicate, one copy of which was received here, according to the testimony of Mr. How, on Sunday, April 2, 1916, and the other in the first mail of Monday, April 3, 1916. On the last-named day it was filed in the District Court, and Judge Van Fleet was thereupon moved to proceed no further in the cause, and, instead, to certify the matter to the senior Circuit Judge of this circuit, to the end that he might designate another District Judge to take the place of Judge Van Fleet in the proceeding, by virtue of section 21 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1090 [Comp. St. 1913, § 988]), which 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 23, 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."

Judge Van Fleet having ruled that the affidavit had not been filed in time, that no good cause had been shown for the failure to file the same ten days before the commencement of the term, and also that the affidavit did not otherwise conform to the requirement of the statute, refused to make the order requested by the petitioner, which order, omitting the title of the court and cause, is in these words:

"An affidavit of personal bias and prejudice and application that another judge shall be designated for further proceedings in this action, accompanied by a certificate of counsel of record for plaintiff herein that such affidavit and application are made in good faith, having been filed by said plaintiff in this action, it is hereby ordered that the fact of the filing of such affidavit and application be entered on the records of the court and that an authenticated copy thereof shall be forthwith certified to the senior Circuit Judge for this circuit now present in the circuit, to the end that such proceedings may be had thereon as are provided by law."

Thereupon the present application was made to this court for a writ of mandate compelling Judge Van Fleet to proceed no further in the cause and to certify the matter to the senior Circuit Judge for his action. Like the Supreme Court in the case of Ex parte American Steel Barrel Company, 230 U. S. 35, 33 Sup. Ct. 1007, 57 L. Ed. 1379, we shall not pass upon the timeliness of the affidavit, nor upon the legal sufficiency of the facts and reasons therein stated as affording ground for the averment that "personal bias or prejudice" existed on the part of Judge Van Fleet, who decided against the petitioner on both of those propositions. Whether or not it was within his province to do so it is not necessary for us to decide, in the view we take 147 C.C.A.-3

of the case, and therefore we pass that question also, and base our ruling denying the writ prayed for upon the ground that, when the charge of "personal bias or prejudice" on the part of the judge was first made by the petitioner, its motion that Judge Van Fleet proceed with the entry of a decree in accordance with the stipulation of the parties was still pending before him, which motion he was actually proceeding to execute in pursuance of the decision of this court made upon proceedings here taken by the petitioner to compel him to do so. The action of the trial judge thus set in motion and continuously prosecuted before him by the petitioner itself cannot, we think, be thus paralyzed. The basis of the disqualification prescribed by the statute upon which the petitioner relies is as stated by the Supreme Court in Ex parte American Steel Barrel Company, supra:

"That 'personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard. This is the plain meaning of the requirement that the affidavit shall be filed not less than ten days before the beginning of the term."

In that case the District Judge ruled that the affidavit presented to him was sufficient in law to make it his duty to proceed no further, and, acting upon that determination, certified his withdrawal and the affidavit to the senior Circuit Judge, that he might in the exercise of his jurisdiction under section 14 of the Judicial Code (Comp. St. 1913, § 981)_designate another judge to proceed with the hearing of the case. In that connection the Supreme Court said:

"If Judge Chatfield had ruled that the affidavit had not been filed in time, or that it did not otherwise conform to the requirement of the statute, and had proceeded with the case, his action might have been excepted to and assigned as error when the case finally came under the reviewing power of an appellate tribunal. Henry v. Speer, 201 Fed. 869 [120 C. C. A. 207]; Ex parte Fairbank Co. (D. C.) 194 Fed. 978; Ex parte Glasgow, 195 Fed. 780, affirmed by this court in Glasgow v. Moyer, 225 U. S. 420 [32 Sup. Ct. 753, 56 L. Ed. 1147].” And that:

"If the designation of Judge Mayer under these conditions was wholly beyond the judicial power of the senior Circuit Judge, his authority to make any order or decree acting thereunder might have been excepted to and thus made the subject of review in due course of law."

And, holding that the writ of mandamus would be granted by that court only when it is clear and indisputable that there is no other legal remedy, it discharged the rule.

The construction thus put by the Supreme Court upon the statute in question, applied to the facts above detailed, requires, in our opinion, a denial of the writ prayed for here.

Writ denied.

(232 Fed. 841)

AMERICAN SURETY CO. OF NEW YORK v. MILLS et al.
(Circuit Court of Appeals, Ninth Circuit. May 1, 1916.)

No. 2699.

1. PRINCIPAL AND SURETY 172-LIABILITY CLAIMS EQUITABLE JURISDICTION.

Where claims against a surety exceed the amount of the penalty of the bond, the surety may sue in equity to obtain protection and relief by securing a pro rata distribution of the amount of the penalty between the several claimants; legal remedies affording no adequate relief.

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 495, 496; Dec. Dig. 172.]

2. COURTS ~493(1)—PRIORITY OF JURISDICTION.

Where, from a judgment rendered against it by state court, complainant appealed to the state Supreme Court, and on affirmance took a writ of error to the United States Supreme Court, complainant could not secure relief against the judgment by an independent suit in the federal District Court.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1346, 1348; Dec. Dig. 493(1).]

3. EXECUTION

171(1)-INJUNCTION-GROUNDS-RELIEF.

Where a creditor obtained a judgment against a surety, and the amount of the claims against the surety exceeded the penal sum of the bond, the creditor will be enjoined from enforcing his judgment, it appearing that the judgment might be reversed on decision of a pending writ of error to the United States Supreme Court, and it not being shown what percentage of the judgment the creditor was entitled to recover, for a payment to such creditor of a greater percentage than he was entitled to would be no protection to the surety against other claimants.

[Ed. Note. For other cases, see Execution, Cent. Dig. §§ 497, 503, 517, 518; Dec. Dig. 171(1); Judgment, Cent. Dig. §§ 794, 795, 813, 825.] Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.

Bill by the American Surety Company of New York, a corporation, against Clara Mills and George F. Steele, Insurance Commissioner of the State of Idaho and others. From interlocutory orders giving only partial relief by injunction, complainant appeals. Modified, and cause remanded.

The appellant brought a suit, one purpose of which was to enjoin certain of the appellees, represented by Clara Mills, from collecting under a judgment obtained against the appellant in the state court of Idaho more than the pro rata part of said appellees of the penalty of a fidelity bond executed by the appellant, under which a large number of claimants were asserting claims against the appellant. The total of all of the claims was alleged to be about $90,000, whereas the penalty of the bond was but $50,000. The appellant also sought in the same suit to enjoin the insurance commissioner of Idaho from taking action to annul the appellant's license to do business in that state on account of its refusal to pay Mills and her associates the full amount of their claims, for which they had obtained their judgment in the sum of $22,624.33. The appellant sought also to determine the amounts due the respective claimants and the pro rata part of the penalty of the bond which each was entitled to receive, and sought to compel the appellees, represented by Mills, to account for certain dividends which they had received, and which it was alleged had not been credited upon their claim and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

judgment. The court below granted the temporary injunction against the insurance commissioner, but refused to enjoin Mills and her associates from collecting the pro rata part of their judgment, and directed that the appellant pay on said judgment forthwith $13,614, in default of which its securities deposited with the state of Idaho would be sold to satisfy the same. The court made no determination of the amount due the other claimants, or the aggregate sum of valid claims, and made no order requiring the appellees to account for dividends received, or determining the just proportion of the penalty of the bond to which other claimants would be entitled. The appeal is taken from two interlocutory orders whereby the court, while enjoining the Mills group of claimants from taking any action to collect more of the penalty of the bond than their proportionate share, fixed at $13,614, or enforcing the collection of the full amount of the judgment which they had recovered, refused to enjoin or restrain them from collecting the said sum of $13,614, and enforcing said judgment for that amount.

Richards & Haga and McKeen F. Morrow, all of Boise, Idaho, for appellant.

W. E. Sullivan and L. L. Sullivan, both of Boise, Idaho, for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] The appellees moved to dismiss the suit in the court below for want of jurisdiction in equity, and although they have taken no appeal from the adverse ruling of the court upon the motion, it is proper for this court to consider first the question of the jurisdiction so suggested. We think equity had cognizance of the cause of suit, for the reason that the very nature of the suit itself demands relief which equity alone can afford, and there is no adequate remedy at law. The appellant, a surety on a bond in the penal sum of $50,000, could lawfully be required to pay no more than the penal sum so named. It was confronted with claims largely in excess of that amount, and it could obtain relief only by a decree for a pro rata distribution of the fund for which it was liable, and this could only be done in a single suit in equity, to which all claimants might be made parties. In American Surety Co. v. Lawrenceville Cement Co. (C. C.) 96 Fed. 25, there was a large number of actions at law on a contractor's bond, and the aggregate amount of the claims exceeded the penalty of the bond. It was held that those facts entitled the surety to maintain a suit in equity, through which the fund in its hands might be equitably distributed. Cases illustrative of that rule are Thomas Laughlin Co. v. American Surety Co., 114 Fed. 627, 51 C. C. A. 247; United States v. Wells (D. C.) 203 Fed. 146; Illinois Surety Co. v. United States, 212 Fed. 136, 129 C. C. A. 584; Illinois Surety Co. v. United States, 226 Fed. 665, 141 C. C. A. 421. In Illinois Surety Co. v. Mattone, 138 App. Div. 175, 122 N. Y. Supp. 929, the court said:

"The plaintiff, however, is liable in the aggregate only to the amount of its undertaking, and that amount constituted a fund for the payment of the creditors pro rata, and is to be distributed among them equitably according to their respective claims. Mere diligence in prosecuting a claim against such a fund will not entitle the prosecuting [procuring] claimant to a priority of payment. The fund can therefore be reached only by an action in equity, prosecuted in a court possessing equitable jurisdiction."

[2] The appellant presents two grounds for reversing the decree. One is that the judgment upon which payment was ordered to be made is void, for the reason that it was taken by default in the state court, after proceedings had been begun to remove the case to the federal court, and before the cause was remanded to the state court. The question of the validity of the judgment on that ground was presented by the appellant to the state court, and its adverse decision. was affirmed on appeal to the Supreme Court of the state of Idaho, and it is now stated that the question has been taken by writ of error to the Supreme Court of the United States. The appellant by those proceedings pursued its proper remedy, and the question is not open to review on the appeal in the present case.

[3] The other ground is that the court below could not require the appellant to pay the sum so ordered to be paid on account of the Mills judgment without prejudicing the appellant's substantial rights in the suit. This ground we think is well taken. Assuming that the judgment obtained by Mills is valid, the court below could order paid thereon no more than a just percentage of the sum that shall finally be adjudged payable on each claim within the penalty of the bond. In determining that amount, the court will be required to take into consideration all the claims and all dividends paid or to be paid out of the assets of the company upon the claims. While the dividends paid and to be paid will not, of course, reduce the appellant's liability on the bond, unless they amount to a sum sufficient to reduce the total net loss of the claimants to less than $50,000, they are proper to be taken into consideration as affecting the question whether the appellant could safely pay on the Mills judgment so large a sum as $13,614 before the final decision of the suit. We think that to order the payment of $13,614 upon the Mills judgment at the present time is premature, for the reason that it does not appear with certainty that such payment will not result in overpayment on the Mills judgment and consequent loss to the appellant. In Commonwealth v. City Tr., S. Dep. & Sur. Co., 224 Pa. 223, 73 Atl. 425, the court held that where a surety on a contractor's bond pays a judgment obtained against it by a materialman, and subsequently other claims are established which, together with the amounts paid, exceed the penal sum of the bond, the surety is not liable to the other claimants merely for the difference between the amount previously paid and the penal sum, but its liability is determined by ascertaining the per centum which the creditors would be entitled to in equal distribution among all, even if the result is a payment by the surety of an aggregate in excess of the penal sum of the bond. The court said:

"The surety company is without the slightest equity. It paid the judgments obtained against it with the full knowledge of the fact that there was then an outstanding and unsatisfied claim then in suit, for an amount which, together with the claims already liquidated, much exceeded the limit of its own liability. Yet, with knowledge of this fact, it proceeded to pay some of the creditors in full. It is no excuse to say that these payments were made to avoid execution. Threatened execution could and should have been met by appeal to the court to put its restraining hand upon the creditor who would attempt to use its process, not for the collection of his own debt solely, but