Margaret Davis v. Pauline D. McLaughlin Administratrix of the Estate of Ingram M. Stainback, Deceased

This is an appeal wherein no statement’ relating to the facts of the case is made by appellants. We therefore adopt appellee’s statement of facts, in part, as follows:

Appellants urge two errors:

(1) That the district judge erred in refusing to recuse himself on motion of appellants;

(2) that the district court erred in dismissing the action with prejudice upon the failure of appellants to meet the terms and conditions imposed by the court to prevent such a dismissal.

Counsel for appellants cite one case in their brief — Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 1962, 371 U.S. 215 , 83 S.Ct. 283 , 9 L.Ed.2d 261 , which has to do with what constitutes “excusable neglect” based on a failure of a party to learn of an entry of judgment and hence fail to file a notice of appeal within the thirty day period required by the statute. This court denied appellee’s motion to dismiss this appeal on July 8, 1963. Hence the case cited supports our previous action, but has no applicability to the merits of this appeal.

The balance of appellants’ brief consists of argument and attacks on the trial judge. It nowhere meets the issues, i. e., the alleged errors recited above.

The motion to recuse was made after the trial judge had heard the matter and indicated how he intended to rule. His refusal to recuse was not error. Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Commission, 9 Cir. 1960, 285 F.2d 162 , cert, denied 366 U.S. 919 , 81 S.Ct. 1095 , 6 L. Ed.2d 241 ; Barnes v. United States, 9 Cir. 1956, 241 F.2d 252 ; Price v. Johnston, 9 Cir. 1942, 125 F.2d 806 , cert, denied 316 U.S. 677 , 62 L.Ed. 1106 , 86 L.Ed. 1750 ; Cole v. Loews, Inc., S.D.Cal. 1948, 76 F.Supp. 872 , reversed on other grounds, 9 Cir. 1950, 185 F.2d 641 , cert, denied, 1951, 340 U.S. 954 , 71 S.Ct. 570 , 95 L.Ed. 688 .

The conditional order to dismiss was not error. Fed.R.Civ.P. 41(a) (2). Federal Savings & Loan Ins. Corp. v. Reeves, 8 Cir. 1945, 148 F.2d 731 . Nor was the dismissal with prejudice when the conditions were not met. De Fillipis v. Chrysler Sales Corp., 2 Cir. 1940, 116 F.2d 375 .

Affirmed.