297 F. 431 | 2d Cir. | 1924
(after stating the facts as above). The matters at bar were heard by a judge not usually serving in Connecticut, and therefore unaware of the complicated and peculiar proceedings antedating final hearing. He was certainly not aided by counsel, who did not direct the court’s attention to methods of practice or procedure, which áre quite beyond any precedents known to us.
The proceeding called Haviland v. Curtiss must be regarded as a suit in equity removed to the United States District Court from the superior court of Connecticut — if it is assignable to any category known to the law. Unless its existence can be so justified it is nothing, and worse than nothing; because it displays an attempt to usurp jurisdiction.
Curtiss’ “motion to remove” avers that he is dealing with a “suit of -a civil nature”; he nowhere alleges the same to be brought or pending in the superior court or any court, but declares it to be pending before “Hon. Isaac Wolfe, a judge of the superior court, and a committee,” whilé the stated ground of removal is diversity of citizenship.
In other words, he sought to remove a proceeding necessarily of the kind described in Judicial Code, § 28 (Comp. St. § 1010); and if he could not in the usual manner procure the record his remedies are prescribed in section 39 (section 1021).
It would be quite useless to dwell at length on the divergence between what was done, and the requirements of the law; we shall merely note:
1. The proceeding authorized by Conn. Gen. Stat. § 1691, is of the nature of a commission de lunático inquirendo. No court proceedings are contemplated; the power of appointing the commissioners is lodged in a judge, not a court. The common method of starting a
2. The matter in controversy cannot be said to exceed the sum or value of $3,000. No other instance of attempted removal of an inquisition of lunacy is found, but divorce affords the analogy. Bowman v. Bowman (C. C.) 30 Fed. 849.
3. The basis of proceedings in all removal cases is the record from the state court; in this instance the record was not obtainable for the simple reason that it did not exist in the superior court, as the clerk told Curtiss’ attorney; but even, if it had so existed, the method of getting what is here called a record was in flat violation of Judicial Code, § 39. The order indorsed on Curtiss’ “motion” February 24, 1922, was a mere nullity.
4. It was conclusively shown on the hearing that Curtiss was not a citizen of Massachusetts, but of Connecticut.
The foregoing seem sufficient reasons for action, without dwelling on the much discussed phrase of Judicial Code, § 28, to the effect that the only causes removable are those of which the District Courts are given “jurisdiction by this title.” It suffices that there was nothing in the superior court to remove, and, if there had been, no legal steps for removal were taken. Judgment or decree in Haviland v. Curtiss reversed without costs, and cause remanded to the court below with direction to strike same from i'ts docket.
In respect of the habeas corpus, it is well to remember that, however time-honored and important that writ is, it is statutory not only as to procedure, but as to applicability. Compliance with Rev. St. § 751 et seq. (Comp. St. § 1279 et seq.), is imperative.
Curtiss had good right to apply for the writ from the District Court, on the allegation that he was deprived of liberty in violation of the FourteenthAmendment. So far as the courts of the United States were concerned, and so far as this record shows — there his right stopped.
Whether he made any showing of unconstitutional confinement is a matter upon which we are unable to express opinion, because this appeal is too late, and therefore unlawful.
Haviland as respondent was entitled to appeal from the “final judgment of discharge,” but (Rev. St. 766 [Comp. St. § 1292]) no such “appeal shall be had or allowed after six months from the date of the judgment or order complained of.”
This appeal is formally taken from a formal order actually signed by the trial judge a year after he had indorsed an order of discharge on the writ, and Curtiss had actually gone free of custody.
But that order signed May -29, 1923, is (1)‘ a mere repetition, so far as its mandate is concerned, of the order made and obeyed a year before, and (2) so far as the assigned reason for action is concerned (viz. that Curtiss is not insane), is something which the District Court on habeas corpus had no right to declare.
. But illegality is not to be presumed, nor inferred; therefore we regard the order of 1923 as merely an unnecessary piece of formality — a
This appeal is an endeavor to review the court’s action finally taken June 1, 1922, and as such too late.
Appeal dismissed, without costs.
