127 F. 435 | U.S. Circuit Court for the District of Massachusetts | 1903
In this case the plaintiff filed a statement of poverty, under oath, under the act approved on July 20, 1892, c. 209, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706]. Thereupon, under the fourth section of the act, the defendants filed a motion that the suit be dismissed on the ground that the alleged cause” of action was frivolous and malicious. That section reads as follows:
“Sec. 4. That the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged, cause of action is frivolous or malicious.”
The plaintiff relies on the words found in that section, “so brought under this act.” If these words are to be literally construed, we are yet of the opinion that, so far as they are concerned, the defendants are within the statute. As bearing thereon, and with the view of saving the rights of all parties, we made and-filed the following findings of fact:
“The court finds that the plaintiff’s writ and declaration were entered, under rule 7 of this court, on the 21st day of October, 1908. It also finds that the affidavit of poverty, under the act of July 20, 1892, was filed on the same 21st day of October, 1903, and that it was filed simultaneously with the entry of the writ. Therefore the court finds that the action was within the terms of section 4 of said act, and was brought under the act, within the meaning of those words in that section.”’
Of course, it is understood that in all the federal courts the common-law practice, as known in the United States, still continues, in the particular that plaintiffs purchase writs from the clerk’s office, and fill them out and serve them at their pleasure. The filling out of such a writ with the intention of serving it is, of course, the bringing of an action for certain purposes; as, for example, with reference to the running of the statute of limitations. But it can hardly be said that an action is brought within the purpose of thé statute in question by merely such filling out of the writ. To give the statute such a construction would probably defeat the purpose of the fourth section, because, according to the ordinary practice, there is no opportunity for filing the affidavit and bringing it properly to the attention of the court until the writ is entered. This is especially true in the district of Massachusetts, where the ordinary practice is not to embody the declaration in the writ, but to file it, as was done in the present case, with the writ, although, in accordance with the Revised Laws of Massachusetts of 1902, c. 173, § 10, as well as in accordance with rule 12 of this court, the declaration may be sooner filed. What would be the practical application of the fourth section of the act in question if the declaration was sooner filed, we need not determine. We are of the opinion that, under the circumstances at bar, the action was not brought, for present considerations, except simultaneously with the filing of the affidavit of poverty.
In Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646, the syllabus, at page 336, 13 Wall., 20 L. Ed. 646, says:
“Judges of courts of record of superior or general jurisdiction are not liable to civil actions for tlicir judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction as to their liability is made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject-matter.”
We have carefully read the declaration in order to thoroughly understand our conclusions in this respect. So far from containing several distinct propositions, as is required by the proper rules of pleading at common law, it contains certain introductory statements, and also a statement at the close setting out the alleged damages which the plaintiff claims to have suffered. Intermediate between these, it is broken up into 15 different paragraphs. Paragraphs 11, 12, 13, and 14 cover topics wholly disconnected from the remaining paragraphs, and neither of them alleges anything which, in any view, could be the basis of an action against any person, official or otherwise. Paragraphs g\ 10, and 15 make allegations against only one of the defendants, and these clearly relate to judicial acts in a judicial capacity; and therefore, notwithstanding the ineffectual assertion of the plaintiff that the acts were not judicial, these paragraphs are clearly within Bradley v. P'isher, supra. Paragraphs 1 to 9 contain, a continuous story, although covering several distinct subject-matters, each of which might relate to a several and distinct cause of action, if any or all combined could be effectual in that direction. These" paragraphs set out sundry proceedings by the defendants which the plaintiff has pointed out to us as not judicial nor under cover of judicial authority. It is evident, however, that none of these incidental acts, in any view of them, could afford the basis of a legal proceeding. They are all merely incidental, and could not be relevant except as they might lead to various judicial proceedings, for each of which, if the facts are at all correctly alleged, the-plaintiff had complete remedy in the usual course in the courts of the state where the alleged matters were pending. If, therefore, the declaration alleges any matter which is not judicial, or done under color of judicial authority, it is so intermingled with what is judicial, and so incidental thereto, that it cannot become the subject of separate or distinct cognizance or consideration. We may add that the more carefully we read this declaration for the purpose of sifting out the various elements which the plaintiff has sought to bring to our attention-, especially as in thus reading it we discover that the plaintiff has combined therein matters as to which he lays claim only against one of the three whom he has made defendants, we are more and more thoroughly convinced that the plaintiff, had no just conception of any right of proceeding in a civil suit,
We doubt very much whether, on a motion of this character, it is within the spirit of the statute to allow costs. At any rate, we would not feel justified in allowing them on our own motion.
Ordered, the defendants may take a judgment that the suit be dismissed as frivolous, in accordance with the fourth section of the act approved on July 20, 1892, c. 209, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], without costs to either party.