UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 16, 1942
PERLSTEIN ET AL.
On Petition for Rehearing.
BIGGS, Circuit Judge.
The appellants have filed a petition for rehearing upon the ground that this court was not constituted properly to hear their appeal because Judge Goodrich by special assignment presided in the District Court of New Jersey at the first trial of th appellants and in that trial ruled upon some of the questions involved in the appeal at bar. The defendants were convicted at their first trial and were sentenced. They appealed. The judgment was reversed and the cause was remanded to the District Court of New Jersey for a new trial. See, 3 Cir., 120 F.2d 276. Thereafter, Judge Goodrich had nothing to do with the case below. At the second trial de novo the appellants were convicted again. They have appealed again. This is the appeal at bar. We are of the opinion that Judge Goodrich was not disqualified under the provisions of Section 120 of the Judicial Code, 26 U.S.C.A. § 216, from sitting in this court on the hearing and decision of the pending appeal, for no ruling or action of Judge Goodrich in respect of the first trial of the appellants is in any way involved by the present appeal to this court. See Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 33 S. Ct. 515 57 L. Ed. 864; Delaney v. United States, 263 U.S. 586, 44 S. Ct. 206, 68 L. Ed. 462, and the decision of this court, in Triangle Conduit & Cable Co., Inc., v. National Electric Products Corporation, 3 Cir., 125 F.2d 1008.
The petition for rehearing will be denied.
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