DeRAN v. KILLITS, District Judge, 4 Ohio Law Abs. 273

DENISON, C. J. April 15, 1921, Hal C. DeRan filed an affidavit in the matter of the bankruptcy of the H. G. Burfurd Co., attempting to disqualify the Hon. Judge John M. Killits from sitting in this case because of prejudice, setting himself up as a party to such bankruptcy proceedings. This affidavit was stricken from the files and various matters regarding said bankruptcy were adjudicated by the Hon. Judge Killits without protest from DeRan for a period of about 18 months. Thereafter DeRan filed this writ of mandamus to compel reinstatement of said affidavit of prejudice. The Circuit Court of Appeals held: 1.

The mere filing of an affidavit of disqualification alleging interest in bankruptcy does not show petition to be a “party” within provision off Judicial Code, Sec. 21, (Comp. St. Sec. 988,) and the affidavit is ineffective where the record does not show him to be a substantial party. 2. After a party has acquiesced to further adjudication for years after affidavit of disqualification was stricken from files, without challenging the order striking same from files, he cannot have the judge disqualified. 3.

The filing of a mandamus petition to reinstate affidavit - of prejudice is sufficient to challenge the propriety of any further action by the judge in the bankruptcy involved. Writ of mandamus dismissed.