Boice

(dissenting).

I have twice stated my reasons for dissent in this case, 194 F.2d at page 84; 198 F.2d at page 791. Why I disapprove the performance which passed for a trial in the court below has been fully explained. Much as I deplore what has happened here, it is assuredly not on my conscience.

The majority of this division have undertaken to justify their affirmance of the judgment, and denial of a rehearing, either en banc or otherwise, on the ground that the case “involved purely factual issues”. 198 F.2d at page 791. In my opinion, that is simply not true. The question is whether a litigant in a federal court is entitled to have *939 the judges, both trial and appellate, exercise their constitutional power, and perform their duty, to pass judgment.

Although this is a case which got in the federal court by reason of diversity of citizenship, in my view it poses an important federal question relating to the function of a trial judge. In denying a motion for new-trial on the ground of the excessiveness of the verdict, the trial court said, 92 F.Supp. at page 755: “At the very threshold of this inquiry it must be remembered that the Constitution of the United States, Amendment…

Upon the original calendaring of this case it was duly assigned for hearing and decision to a division of the court consisting of Circuit Judges HEALY, BONE and POPE. For that purpose, the division constituted the court. After hearing the judgment of the district court, 92 F.Supp. 750 , was affirmed. 9 Cir., 194 F.2d 80 . Subsequently, on January 18, 1952, appellant filed a petition entitled “Petition for a rehearing en banc.” On January 23, 1952, the division made and entered an order denying the petition.

Thereafter appellant petitioned for certiorari and by order entered May 5, 1952, 343 U.S. 941 , 72 S.Ct. 1033 , 96 L.Ed. 1347 , the Supreme Court denied certiorari. Upon the coming down of the mandate appellant moved for leave to file a motion to vacate the denial of its petition for rehearing en banc and for the reinstatement of its petition. On August 27, 1952, the division denied the motion for leave to file, one judge dissenting. 9 Cir., 198 F.2d 790 .

On April 13, 1953, the Supreme Court vacated its denial of certiorari, granted the writ, vacated the order of the division of this court denying the petition for rehearing en banc, and remanded the cause for further…

205 F.2d 937 BRADLEY MINING CO. v. BOICE. No. 12684. United States Court of Appeals Ninth Circuit. June 24, 1953. John Parks Davis, San Francisco, Cal., Oscar W. Worthwine and Ralph R. Breshears, Boise, Idaho, George Donart, Weiser, Idaho, and Arthur B. Dunne, San Francisco, Cal., for appellant. Jess B. Hawley, Jr., W. H. Langroise and W. E. Sullivan, Boise, Idaho, for appellee. Before HEALY, BONE, and POPE, Circuit Judges. PER CURIAM. 1 Upon the original calendaring of this case it was duly assigned for hearing and decision to a division of the court consisting of Circuit Judges HEALY, BONE and POPE. For that purpose, the division constituted the court. After hearing the judgment of the district court, 92 F.Supp. 750 , was affirmed. 9 Cir., 194 F.2d 80 . Subsequently, on January 18, 1952, appellant filed a petition entitled "Petition for a rehearing en banc." On January 23, 1952, the division made and entered an order denying the petition. 2 Thereafter appellant petitioned for certiorari and by order entered May 5, 1952, 343 U.S. 941 , 72 S.Ct. 1033 , 96 L.Ed. 1347 , the Supreme Court denied certiorari. Upon the coming down of the mandate appellant moved for leave to file a…