xt70zp3vt865_201 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Duff, H.P. et al. v. Cisco, F.L. et al text Duff, H.P. et al. v. Cisco, F.L. et al 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_21/Folder_4/2000.pdf 1949-1951 1951 1949-1951 section false xt70zp3vt865_201 xt70zp3vt865 I ‘ FAULKNER 8c FAULKNER
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V. F. FAULKNER ”947)
‘ fiovember l, 1951.

Judge Joseph D. Harkins,

Prestonsburg, Ky.

Dear Judge Earkins;

I am taking the liberty of sending you here—
with a copy of an affidavit and motion which I dis—
covering lying on the Clerk's desk this morning. I
had my 0th secretary make the copy and also a copy
of an order which the Deputy Clerk had entered filing
the affidavit and motion.

We took a deposition in the Cisco case in i‘exingu
ton yesterday and I was in that city all day, reaching
home at midnight. however, I was in our Circuit Court
room all day Tuesday but 1 did not know this affidavit
had been filed until I found it this morning, nor did I
know that Ir. Duff and fir. Lewis were in hazard Tuesday.
The young lady in the office tells me they filed this
document about noon Tuesday.

There is a notation on the original copy of Sec.
25.250, ZRS. The Deputy Clerk explained that Kr. Lewis
made the notation and told her to tell the Clerk to read
the section of the Statute when he returned to the office
and he would know what to do. The Clerk is giving some
time to his candidacy forreelection.

vours ‘uly,
W. E. Faulkner.

 " W. 10/50/51

Game the plaintiff, Austin Fields, for and on behalf of
himself and other plaintiffs and those for whom the; suc, and
filed affidavit and motion to reouire the Special Judge to
vacate the bench and to certify this cause to the Chief 1
Justice for the appointement of another Special JUdge.

Clerk, ferry Circuit Court.


w November 13 , 19 51

Hon. Joseph D. Harkins,

Prestonsburg, Kentucky.
Re Duff vs Cisco

Dear Judge Harkins:

I enclose a motion, affidavit and order, copies of which
I am having served on adverse counsel, in connection with the
motion of Austin Fields to require you to vacate the bench.

I request in the motion that you set the case for hearing
at Hazard or at Prestonsburg. It would seem to me that you can
only file this motion and set the case now and we can take up the
merits of the motion at the hearing. I would think that a hearing
would certainly be necessary because under the authorites, we
have a right to show (1) that the affidavit of Austin Fields is
insufficient on its face; (2) that it was filed without notice;
(3) it is based on hear-say; (3) that it is not timely made; and
(5) that it is based on mere conclusions.

We think the authorities support this and would expect to
present them to you at the hearing. If there were nothing in the
case except the sufficiency of the affidavit of Austin Fields,
it would necessitate a hearing because I assume we certainly

Judge Harkins -2— November 13, 1951
have a right to present our views on that question, and I think
we have a right to go into that question.

The only thing I am now asking you to do is to file our
motion and affidavit, set the case for hearing at such time and
place that you will suit your convenience (any time or place will
suit us) and if you agree, request Austin Fields and his counsel
to be present.

Yours respectfully,
LTW:kb flu

DR- H-P. DUFF, et al., Plaintiffs,
vs N O T I C E
F. L. CISCO, et a1., Defendants
' The plaintiffs and their counsel, Claude Stephens and Jesse
K. Lewis, are hereby notified that on Thursday, November 16, 1951,
the defendants in the above styled cause, will file with HOn.

p Joseph D. Harkins, Special Judge, at his office in Prestonsburg,
Kentucky, and will file in the office of the Clerk of the Circuit
Court at Hazard, Kentucky, their motion and the affidavit of Leo
T. WOlford, copies of which are attached, and will request an
order filing these documents. 5 E
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Counsel for the defendants
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DR. H. P. DUFF, et al., Plaintiffs,
F. L. CISCO, et al., Defendants
This day came the defendants and filed herein (1) their notice;
(2) their motion to set this case for hearing on the motion and
affidavit of Austin Fields to require the Special Judge to vacate
the bench, and holding such affidavit to be insufficient; and (3)
the affidavit of Leo T. WOlford.
- - v JUDGE

DB, H- P- DUFF, et al., Plaintiffs,

vs M O T I 0 N
F. L. CISCO, et al., Defendants

The defendants, F. L. Cisco and Fidelity & Deposit Company
of Maryland, move the court

1. For an order setting this case for hearing in Hazard or
Prestonsburg, Kentucky, in connection with the motion of the
plaintiff, Austin Fields, to require the Special Judge to vacate
the bench.

2. For an order holding that the affidavit of Austin Fields,
which was filed without notice to the defendants, is insufficient
because it is based on hear-say, constitutes mere conclusions of
the affiant, was not timely made and is untrue, and it was made
solely and only to avoid an adverse ruling on vital pending motions
under submission before the Judge.

3. That at the hearing the plaintiff, Austin Fields, and his
counsel, Jesse K. Lewis, Claude Stephens and Chester E. Duff, submit
themselves for cross-examination.

H. For an order filing the affidavit of Leo T. WOlford tendered
herewith in support of this motion. [01. W

Counsel for the defendants

DR. H. P. DUFF, et al., Plaintiffs,
vs A F F I D A V I T
F. L. CISCO, et al., Defendants


LEO T. WOLFORD, being first duly sworn, states as follows:

I am of counsel for the defendant, Fidelity & Deposit Com-
pany of Maryland.

There has just «Jmé to light through an accidental circum-
stance one of the most amazing chapters in this unprecedented
law suit. It appears that en October30, 1951, somebody left
with the Clerk of the court an affidavit of the plaintiff, Austin
Fields, containing facts, none of which could have been within
his knowledge, and this affidavit is accompanied by an order
entered, not by the Judge, but by the Clerk, filing this affidavit,

' and certifying this case to the Chief Justice of the Court of

Appeals for the appointment of another Judge. This affidavit and
order were filed secretly without any notice to the Special Judge
designated to try the case, about whom it pertains, and without
notice to the defendants or their counsel. Since the filing

 of this affidavit the plaintiffs have for some reason with-
held information from defendants' counsel when depositions were
taken in this case in Lexington on Octorber 31, 1951. The sub—
stance of the affidavit is shocking to any one having knowledge
of the facts and can be understood only by taking into account
the cause of its filing. It comes at a time when the Judge is
being asked to pass on some very vital motions, the decision of
which the plaintiffs manifestly feel is bound to be adverse to

I will endeavor to give the background in order to explain
as well as I can why this desperate step has been taken.

On or about August 9, 1951, I asked the Judge if he would
set the case for hearing on pending motions, and at his suggestion
I wrote to plaintiffs' counsel, Jesse K. Lewis, requesting him
to agree upon a date b0 take up with the Judge in Prestonsburg
the argument of these pending motions. On August 11, 1951, Mr.
Lewis wrote me agreeing on August 2%, 1951, for the hearing, and
asked what the particular motions were which we expected to argue.

On August 13, 1951, I wrote to Mr. Lewis informing him that
the pending motions which we wished to argue were (1) the motion
to strike the plaintiffs' reply to the answer of Fidelity &
Deposit Company; (2) the motion to limit the testimony to the
matters specifically pleaded and to those acts which occurred
within five years before the bringing of the suit; and (3) the
motion to set aside the order permitting the plaintiffs in the
second and third suits to appear as representative plaintiffs
for other creditors. 1

On August 21, 1951, Mr. Lewis wrote me suggesting that "it
would be more helpful to the court to have this matter briefed",
and asked me to file the defendants' brief before the hearing on
the 2hth. F

On August 22, 1951, I sent to Mr. Lewis and to the Judge a


 copy of defendants' brief.

On August 2%, 1951, we appeared at the agreed time before
Judge Harkins in Prestonsburg. Mr. Lewis did not appear. Mr.
Stephens appeared and asked for further time on account of Mr.
Lewis' absence. He said Mr. Lewis could not be present but he
dii not know the reason for his absence.

It is not correct to say that Judge Harkins became "enraged
and incensed" at Mr. Lewis' failure to appear. The Judgedid say
that after agreeing upon the date Mr. Lewis should have been
present or at least should have notified the court and counsel ,
that he would not be there. Mr. Stephensxvas not prepared to go
ahead with the argument on the motions and for that reason the
Judge directed counsel to prepare an prder giving the plaintiffs
15 days from August 24, 1951, the date of the hearing, within
which to file a responsive brief. '

On August 30, 1951, Mr. Lewis wrote Judge Harkins that on
account of some other employment "it will be necessary for me
to have a few more days in which to complete our brief on the
questions presented".

On October 9, 1951, no brief having been received from Mr.
Lewis, the Judge wrote him and stated "If you wish to file the
brief I suggest that you get it to me at once".

On October 13, 1951, Mr. Lewis sent to the Judge a five page
brief in reply to the defendants' brief on these motions.

On October 22, 1951, the defendants filed a brief responsive
to Mr. Lewis' brief, and asked the Judge to set the case down
for further hearing if that would be of any asdstance to him.

On October 2%, 1951, the Judge wrote to counsel stating that
Mr. Stephens had been in the office on this and other matters and
that it had occurred to the Judge that a pre-trial conference
would be helpful. He asked counsel to agree upon the date.


 I immediately called Mr. Stephens and Mr. Lewis and sug-
gested either November 5th or 7th. Mr. Stephens stated that
would be agreeable to him. Mr. Lewis said he would consider
and write me what date would be satisfactory. Nb letter was
received from him.

On October 31, 1951, after taking depositions in the case
at Lexington, I brought up the question of agreeing upon a date
as requested by the Judge. Mr. Stephens said "I am not in this -
leave it to Mr. Lewis - he is the boss". Mr. Lewis stated
"we are not in a position to agree to any hearings in Prestonsburg
at this time". That is all that they said.

A few days later, we learned accidentally that on October
30, 1951, the plaintiffs had filed in the Clerk's office an
abusive affidavit signed by Austin Fields, one ef the plaintiffs,
and a motion to require the Judge to vacate the bench which they
asked to have certified to the Chief Justice of the Court of

The Clerk filed this motion without any further order from
the court.

No notice of the plaintiffs' motion and affidavit b require
the Judge to vacate the bench was given to either of the de-
fendants or to their counsel and the plaintiffs' counsel said
nothing about having filed any such documents when asked about
the date for the hearing which the Judge had suggested.

I request that the order of August 24, 1951, and the briefs
on the motions under consideration be considered a part of this

These documents clearly show that the plaintiffs have no
answer to these vital motions and that they have resorted to the
device of endeavoring to have the Judge vacate the bench solely


 to avoid having these motions passed upon. The Judge has not
indicated to the defendants what his decision may be on any of
these matiens, but the briefs show the plaintiffs' complete lack
of any argument in opposition to the motions. >

There is no circumstance in this case which would suggest
or constitute any basis for the statement that the Special Judge
will not afford the plaintiffs a fair and impartial trial.

The statement in Paragraph 1 of the plaintiff's affidavit
attributing to the Judge a statement that he had he intention
of reading the record or the evidence in the case gives a false
impression of what was said.

On June 21, 19h9, when the defendants sought an order termi-
nating the plaintiffs' proof (they had been taking proof for
more than four years); and pointed out the voluminous nature of
the probf, the Judge explained that he would expect counsel to
brief the case and give full references to the record when the
case was finally submitted and that he did not wish to be com-
pelled to study the record without such help. The plaintiffs
made no complaint whatever about the Judge's statement until
the difficulties arose on the pending motions, more than two
years later,

The plaintiff‘s affidavit states that the Judge does not
have "the capacity to properly reason or reach any logical or
proper conclusions on any legal questions presented to him",


 that "he cannot even transact his own business affairs", and that
"he has no memory or recollection whatever of any previous orders
or proceedings". Those are amazing statements to anybody who
has appeared before or observed Judge Harkins in recent months.
It is not true that he is unable to walk, or that his mentality
has been impaired. At the hearing we had before him on August 2%,
1951, he was very alert. The letters from him to counsel con-
stitute a complete revocation of these abusive remarks. I feel
sure that the plaintiff, Austin Fields, has not even seen the
Judge and that Mr. Jesse K. Lewis has not seen him in recent
months and I do not believe Mr. Claude Stephens would be willing

' to make an affidavit above his own signature to this effect.
For that reason, I request that those gentlemen be required to appear
for an examination at a hearing to see what basis they have
for such abusive language.

I know of no circumstance which would indicate that Judge
Harkins "has become antagonistic to one of the plaintiff's counsel",
I feel incensed myself that Mr. Lewis let us go all the ...-.3. to
Prestonsburg for a hearing without telling us he would not be
there after agreeing upon the date and having Mr. Stephens
request a continuance. The Judge went no further than I did
in my own mind with reference to that kind of treatment.

It is not true that Mr. Stephens explained to the court
that he was chief counsel in the case. In.fact, he has attended
Very few of the hearings within the last year or so and has had
very little to do in the case for many months.

It is not true that Judge Harkins "made derogatory remarks
of one of the attorneys for plaintiffs because of some statement
the attorney made on some political question".


 Judge Harkins did direct me to prepare the order at the
hearing on August 2%, 1951 because he had no stenographer at the
officeam that time, and directed me to copy in the order the
letters which are embodied in it. A copy of that order was sent
to plaintiffs' counsel before it was entered and they made no
objection whatever of which I have any notice. The plaintiff's
affidavit infers that I copied into the order several letters
whereas the Judge had indicated only one. That is not true and
they made no complaint about the order on that account.

It is not true that the order shows on its face that the
court passed an and decided all questions for which such conference
had been called. The court did not pass on any of the pending
motions solely because of Mr. Lewis' absence. The plaintiffs
were not represented by Mr. Stephens. He was present and re-
quested time on account of the absence of Mr. Lewis and the
motions were not argued.

The hearing was not on September 2hth, as indicated in the
plaintiff's affidavit. There was no hearing on that date. The
hearing was on August 2%th. In this respect and in several
respects as shown by the affidavit, the Judge's recollection of
the case is far better than that of the plaintiff. ’

The plaintiff's affidavit makes indefinite statements about
some remark of Judge Barkins "subsequent to September Zkth 1951
* * * to chief counsel for the plaintiffs", that "other d>unsel
for the plaintiffs" had been employed in other matters and should
take no other cases which would interfere with the preparation
of this case. I have no knowledge of any such statements. They
were not made at any hearing and the plaintiffs and their counsel
should appear for cross examination in order for us to ascertain
from them just what is meant by such charges.


 I know of no circumstance which would justify the charge
that Judge Harkins has lost or misplaced the record. The record
was delivered to him at the hearing on August 24th and there
can be no basis for the statement that he has misplaced it.

It is not true that Judge Harkins is unable to walk. He
has walked without crutch or cane at all of the hearings in this

The affidavit and motion to disqualify Judge Harkins was signed
only by one pf the plaintiffs, Austin Fields, who claims to have
had a deposit in the bank of $5,000 when it failed. The other
plaintiffs do not join in the motion and none of the plaintiffs'
counsel is joined in the motion. Austin Fields has not been present
at any of the hearings before Judge Harkins and has no personal
knowledge of any of the facts stated in the affidavit.

The affidavit of Austin Fiélds is insufficient on its face
to require Judge Harkins to vacate the bench; (a) the statement
attributed to Judge Harkins that he would not reea d the record
refers to a statement made on June 21, l9k9, to which the plaintiffs
made no timely exception, and the facts concerning this alleged
statement are purely hear-say on the part of Austin Fields; (2)
the statemenisin.the affidavit concerning Judge Harkins' physical
condition are mere conclusions, are based on hear—say on the part
of Austin Fields, are untrue, and the plaintiffs took no timely
exceptions to the Judge's illness which occurred in 1950; (g)
there was no hearing in Prestonsburg on September 24, 1951, and
the statementsattributed to Judge Harkins, which presumably refer
to the hearing on August 24, 1951, are untrue, are based on hear-
say and are mere magnifications of the Judge's proper criticism
of Mr. Lewis' failure to attend and of the plaintiffs' inability
to proceed with the hearing after they had agreed upon the date,
and without any notice to the court or to counsel in advance that


 they would not be prepared to proceed with the hearing; (d) the
alleged statement of Judge Harkins to "chief counsel" for the
plaintiff that "other counsel for the plaintiff should not take
other employment which wauld interfere with the preparation of this
case", does not specify the time or place of such statement or

who was present or just what was said and is too general to consti-
tute any reason for asking the Judge to vacate the bench, and is
likewise based on hear-say; (g) the general statements that the
Judge has misplaced the record or correspondence and that members
of the public state that he has become incapacitated and that his
memory has completely failed, are mere general conclusions, based
on hear-say and are not true. The affidavit does not contain
any specific reason based on the knowledge of the affiant which
would justify the granting of the motion.

There is pending before Judge Harkins a motion to strike the
plaintiffs' reply to the answer of Fidelity & Deposit which was
filed without notice almost six years after the answer was filed,
a motion to limit the testimony to the issues specifically pleaded
and to these acts which occurred within five years before the
filing of the suit, and a motion to determine whether the plaintiffs
have a right to proceed in a representative capacity. The de-
fendants contend that the plaintiffs are guilty of laches in the
prosecution of the case. This move to disqualify the Judge is
for delay and constitutes additional laches on the part of the
plaintiffs in a suit which has been pending ten years this month.
Thousands of pages of testimony have been taken. After this great
delay, and after the times have been fixed for completing the
proof, and with these motions pending before Judge Harkins, with
which he is familiar, tp require the appointment of a new Judge
with the consequent nefiessary delay, would deprive the defendants


, . . ..‘!

, of their property without due process of law in violation of the
Fourteenth Amendment to the Constitution of the United States,
and in violation of the Sections 1 and 14 of the Constitution of
the State of Kentucky.

Judge Harkins has been unusually indulgent with the plaintiffs
and with their counsel. He has explained to counsel that be-
cause of their extreme charges against Mr. Cisco he wished to
give them every opportunity to develop their case. The first
suit was filed 10 years ago this month. After such a great lapse
of time and after the record has been built up to voluminous
proportions and the time has been set for finally bringing the
case to a close, it would be unfair to the parties to ask another
Judge to take over the case.

. As counsel I regret t6"be put in the'position of having to
file my own affidavit, but inflfeirness to theicourt and to the
defendants I feel that I must make this direct answer to the
abusive and uncalled for language in the plaintiff's affidavit. '

wed o. w
§pBSCRIBED AND SWORN to before me by Leo T. Wolford this
Sim day of November, 1951.
My commission expires June 19, 195

 Filed in my Office October 50, 1951,
Sam Combs, Clerk by Claudoun B. Furgerso

The plaintiff, Austin Fields, for and on behalf of
himself and each of the other named plaintiffs herein and those
for Whom they sue, states that he does not believe that the
Special Judge of the Perry Circuit Court, Honorable Joseph D.
Harkins, will afford the plaintiffs and those for whom they sue
a fair and impartial trial upon the matters and issues remaining
to be tried and adjudicated dn the aoove styled cause; and he
states that he has discovered and learned the facts and the
reasons why he docs not believe that the said Special Judge ap—
pointed in this case will afford them a fair and impartial trial
about or near the time the last orders and steps were taken in
the above styled case, which is now pending in the Perry Cir—
cuit Court.

He further states that the reasons why he does not be—
lieve the said Judge will afford them a fair and imparitsl trial
of the issues, and further matters remaining for decision in the
above styled cause, are as follows;

I. As early as 1950, the Special Judge, the Honorable
Joseph D. Harkins, stated to counsel for plaintiff and for defen-
dant that he nsd no intention of reading the record or the evi-
dence filed in this case, and he has subsequently so stated to

the attorneys for each side, the plainfiff states that the fore-

 going statements of the Court was highly prejudicial to plaintiff's‘
cause and those for whom they sue, for the reason that their
rights herein involved could not be properly determined and ad—
judicated and secured against the defendants without the Court
studying and examining the many thousands of pages of evidence
which the plaintiffs have taken and caused to be filed as a part
of the record in this case. I
2. Plaintiff further states that since the first of
January, 1951, and some time in the spring of this year, the
said Special Judge designated to try this case had two paralytic
strokes which have seriously impaired his physical and mental facul—
ties, and such has been the impairment of the mental faculties
of said Special Judie that he has not been able to, nor does he
now have the capacity to, properly reason or reach any logical
or proper conclusions or any legal questions presented to him,
and, in fact, said Special Judge is not capable of a sustained
mental effort of any kind, and as a result of his mental impair~
ment and condition he cannot even transact his own business
‘ affairs, but some have to be carried on by members of his family;

and such has been the degree of his mental impairment by reason
of said paralytic strokes that he has no memory or recollection
whatever of any previous orders or proceedings or steps heretofore
taken and exercised by him in this case, nor does he have any

‘ recollection whatever of any law questions that have heretofore
been ruled upon or decided by him.

. ._2- K

 5. _As illustrative of the serious mental impairment
and unfortunate condition of Said Special Judge's mind, plaintiff
states that the said Special Judge has become antagenistic to one of
plaintiffs' counsel, and to such a degree and extent that at a
hearing before said Special Judge at Prestonsburg on September 24
of this year, he became enraged and incensed at one of the attor—
neys for plaintiff for the reason, stated by him in the presence
of the attorneys for the defendants, that it was a reflection
upon the Court that one of the attorneys did not attend the hear—
ing, which was being held at his office at Prestonsburg, even
though it was explained to him that the attorney present who
represented the plaintiffs at that hearing was the chief counsel
in the case and lived at Prestonsburg, and such was the impairment
and of the mind of the Spcial Judge on that occasion that at this
particular hearing he made derogatory remarks of one of the at-
torneys for plaintiffs because of some statement the attorney had
made on some political question which had been published in the
newspapers, and as evidence of the serious impairment of the
mental faculties of the said Special Judge, he directed the at—
torneys for the defendants in this caSe in the preparation of
the orders made by him on said date to specifically include in
the order a copy of said attorney's letter to the defendant's
attorney, under date of August ll, 1951, a cepy of which was
sent to said Judge, and which shows on its face that said at—
torney for plaintiff had made no agreement or promise to be
present on that date, and plaintiff states that, in addition to
including in said order the letter requested by the Court, the
attorney for the defendants included all of the correspondence
relating to the hearing to be held at Prestonsburg on September 24

-5- '

 and the Special Judge in this case, having no memory or recollec—
tion as to what he had previously ordered or directed, acknow—
ledged and signed the whole of said order, including all of said
correspondence, and the plaintiff incorporates and makes said
00mplete order a part hereof, as if fully incorporated herein,

. plaintiff further states, in connection with this same matter,-
that the Special Judge, Hon. Joseph D. Harkins, sent a copy of
this order to the Chief Justice of the Court of Appeals, and
stated that his reason for including this letter of August llth
in the order was to demonstrate and Show that the said attorney

' for the plaintiff was attempting to delay this case, although
the order shows on its face that the Court passed upon and decided all
questions for which said conference had been called, and that
plaintiffs were properly represented on said occasion by their
cheif counsel, Eon. Claude E. Stephens.

Plaintiff further states that subsequent to September 24th,
1951, and as further illustrative of the Special Judge's complete
breakdown and the fatal impairment of his faculties, he stated
to chief counsel for the plaintiffs, after reading in the news—
papers that other counsel for the plaintiff had been employed in
certain cases in western Kentucky, that said attorney was not
showing proper respect for the Court in attempting to practice
any other cases, other than this case, and he went so far as to
state that said attorney should take no other cases which would
interfere with the preparation of this case.

Plaintiff further states that such has become the un—

' fortunate mental condition of said Special Judge by reason of
said paralytic strokes that he has lost and miSplaced much of the
record and correspondence forwarded to him by the attorneys, and

-4- .



has been unable to locate or find same in his office, and such
is the physical impairment of said Judge that he is unable to
walk and does not have the physical capacity or power to attend

V Court at Hazard, or to take care of any of the work necessary

to properly hear or determine this case.

Plaintiff further states that the members of the public
generally, and mace particularly the members of the Bar, who
have talked with and been associated with said Special Judge
since the serious illness that has come upon him, state that he
has become incapacitated to conduct any legal business or to.
make any decisions requiring judgment, and that his memory has
completely failed. Plaintiff states that the hostility and
unfriendliness which said Special Judge has developed against
one of plaintiff's counsel because of his mental impairment
is such thct in the jud‘ment of plaintiff and affiant, the
said Joseph D. Harkins could not give plaintiffs and those
for them they sue a fair or impartial trial.

I .

Affiant says the foregoing statements ire true, as he
verily believes. ~

WHEREFORE, he moves that the Hon. Joseph D. Harkins
vacate the bench and refuse to further preside in this case and
cause said facts to be certified to the @héef Justice of the
Commonwealth of Kentflcky, for the appointment of another Special
Judge to try this case as provided by law.

(Signed) Austin Fields.

Subscribed and sworn to before me by Austin Fields, this
the 26th day of October, 1951. ’

My Commission expires on the 26th.day of February, 1954.‘

(signed) J. C. Ananeli§ _
Notary Public, atwlarfie
Countfi, Kentucky
..5- -
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