Request for rehearing was filed by petitioner and the entire matter was heard by Judge Marsh. In view of a change in circumstances as to the residence of the claimants, Judge Marsh entered two orders and a supplemental opinion, transferring the case to Arizona, Mutual Life Ins. Co. v. Ginsburg, D.C., 125 F.Supp. 920, and awarding compensation to the Guardian in the amount of $ 1500.00 payable out of the fund deposited in the registry of this court. Mutual Life Ins. Co. v. Ginsburg, 131 F.Supp. 950.
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 for two apparent reasons:
1. At the time that Judge Marsh entertained the motion for transfer, the parties to the litigation had established a new legal residence other than that which existed at the time Judge Willson entertained a similar motion, and the factual circumstances had consequently changed, which would justify the conclusion that one judge had not overruled another judge on the same facts.
2. Assuming, however, that the facts were identical, and one judge of coordinate jurisdiction sitting in the same court and in the same case had overruled the decisions of another judge, this Circuit has recognized extraordinary and exceptional circumstances under which the rule is not applied. Such circumstances exist when the judge who made the original decision is not available to consider the application to rehear and reverse his decision. TCF Film Corporation v. Gourley, 3 Cir., 240 F.2d 711. If the judge who made the decision disqualified himself, he obviously is not longer available to reconsider such matters and such reconsideration must perforce be by another judge if it is to be had at all.
For the reasons stated, petitioner's motion to vacate the orders of Judge Marsh will be refused, and the Clerk of Courts will be directed to transfer said action to the State of Arizona.
An appropriate order is entered.