
    KINNEY v. PLYMOUTH ROCK SQUAB CO. et al.
    (Circuit Court of Appeals, First Circuit.
    April 22, 1914.)
    No. 1,057.
    Judges (§ 51)—Disqualification—Proceedings—Affidavit of Prejudice— Statute.
    Judicial Code (Act March 3, 1911, c. 231) § 21, 36 Stat. 1090 (U. S. Comp. St. Supp. 1911, p. 133), permitting any party to an action to file an affidavit of prejudice on the part of the judge and have another judge designated to try the case, does not apply to appellate tribunals.
    [Ed. Note.—For other eases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.]
    In Error to the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.
    Action by Robert D. Kinney against the Plymouth Rock Squab Company and others. From the judgment, plaintiff brings error. Affidavit of prejudice, filed by the plaintiff in error,
    dismissed.
    Mr. Kinney, for plaintiff in error.
    John S. Patton, of Boston, Mass., for defendants in error.
    Before PUTNAM and BINGHAM, Circuit Judges.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The court, having fully considered the affidavit of prejudice filed by the plaintiff in error on March 10, 1914, and the brief in support-thereof, is of the opinion that the statute under which the affidavit is filed, namely, section 21 of the Judicial Code of March 3, 1911, is so framed that evidently it does not apply to an appellate tribunal. Consequently the affidavit must be dismissed.

Ordered that the affidavit filed by the plaintiff in error on March 10, 1914, entitled “An Affidavit of Prejudice under the Statute of March 3, 1911,” is dismissed, and the case will stand for trial in the order heretofore assigned to it.  