The opinion of the court was delivered by: GOURLEY
This is a proceeding to vacate divers orders entered by an associate member of this court in which a motion for change of venue was granted and a motion for summary judgment refused.
The original petition for change of venue was refused by my associate Judge Willson, as was the motion for summary judgment.
Subsequent to said orders, petitioner raised the question of bias and prejudice on the part of Judge Willson, and as a result thereof, Judge Willson requested me as Chief Judge of this court to relieve him of said assignment. This procedure was followed and the proceeding was assigned to my associate Judge Marsh.
Although petitioner seeks to base his claim for relief upon the rule that judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other, Jurgenson v. National Oil & Supply Co., 3 Cir., 63 F.2d 727, 729; Price v. Greenway, 3 Cir., 167 F.2d 196, it is my judgment that the question more aptly and accurately posed is whether a judge of coordinate jurisdiction sitting in the same court on the same case, but where the circumstances have changed, can overrule the decision of an associate judge upon petition for rehearing when such associate judge voluntarily removed himself from said proceeding at the request of petitioner's counsel on his allegation of bias and prejudice.
Subsequent to the orders of Judge Marsh, petitioner filed a petition for writ of prohibition with the United States Court of Appeals for the Third Circuit seeking to restrain the enforcement of said orders, which was refused on December 7, 1954.
Subsequently, petitioner filed in the Court of Appeals a petition for writ of mandamus against Judge Marsh asserting the same matters as were raised in the petition for writ of prohibition. The petition for writ of mandamus was denied by the Court of Appeals on October 6, 1955.
Whereupon petitioner filed appeals in the Court of Appeals from both of the orders entered on December 1, 1954. On January 10, 1956, the Court of Appeals entered its decision affirming Judge Marsh on all counts. Mutual Life Ins. Co. v. Ginsburg, 3 Cir., 228 F.2d 881.
Petitioner filed motion for rehearing, which was denied by the Court of Appeals on January 30, 1956. Petitioner then filed an amended petition for writ of mandamus which was denied by the Court of Appeals on March 8, 1956.
Petitioner filed petition for writ of certiorari and an alternative motion for leave to file a petition for writ of mandamus in the Supreme Court of the United States. This petition was denied by the Supreme Court on June 11, 1956, Ginsburg v. Gregg, 351 U.S. 979, 76 S. Ct. 1050, 100 L. Ed. 1495. Petitioner then filed a petition for rehearing in the Supreme Court of United States and subsequently filed an appendix to this petition. On October 8, 1956, the Supreme Court denied the petition for rehearing, 352 U.S. 813, 76 S. Ct. 26, 1 L. Ed. 2d 71.
After the Supreme Court had refused the petition for writ of certiorari on June 11, 1956, the Court of Appeals for this Circuit refused to stay the mandates any longer, notwithstanding petitioner's request to do so. The mandates were issued to this court on July 2, 1956.
In its opinion the Court of Appeals affirmed Judge Marsh's order awarding the Guardian compensation in the amount of $ 1,500; it concluded that the petition for additional compensation was reasonable but refrained from making an order appertaining thereto without additional evidence. It therefore remanded the case to this court for a hearing upon the Guardian's request for additional compensation.
Although the Guardian has spent considerable time in services for the minors both before and after the appeals in the Court of Appeals, the Guardian has filed a petition in this court waiving any right to additional compensation and requesting that the original orders of December 1, 1954 be enforced.
I must conclude that petitioner's motion to vacate the orders of Judge Marsh are without merit ...