127 F. 1002 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1904
On December 29, 1902, Robert D. Kinney, the use plaintiff, presented to the defendant, Samuel Bell, clerk of this court, a praecipe signed by himself for a summons in assumpsit against Thomas K. Finletter, Charles B. McMichael, and Henry J. McCarthy; accompanying it with a declaration or statement of his intended cause of action. The parties so named as defendants were, as is well known, the judges at the time of the court of common pleas No. 3 of Philadelphia, against whom it was sought by Mr. Kinney to bring suit in this court in his own behalf. Col. Bell refused to obey the pracipe and issue the summons ordered, or even to allow the papers so presented to him to be filed. However commendable this act, on general principles, in order to prevent useless, if not vexatious, litigation, it must be judged of from a purely legal standpoint here.
The clerk of a court is essentially a ministerial officer. 7 Cycl. Law & Pro. 196. And he has nothing to do with the character or purpose of papers which are tendered to him to be filed. When suit is ordered or process directed to be issued, it is his duty to comply, if the party is prima facie entitled to it; and for failure to do so he is liable for any loss, the measure of his responsibility being the damages which have resulted therefrom. 7 Cycl. Law & Pro. 228. As to this there is no controversy, and the only question is with regard to its application.
In the case in hand, the plaintiff, on presenting his prsecipe, was entitled to a summons, regardless of the character of the parties defendant named therein,’ or whether, in the opinion of the clerk, the statement with which it was accompanied showed a cause of action against them which was cognizable here. That was a question for the court., which he could not pass upon. Just what that cause of action was, in all its parts, we do not know; the plaintiff not having seen fit in this case to exhibit a copy of the declaration or statement of demand which he sought to file in that, and his recital of it in the*present record being anything but clear. But it did not necessarily depend on the diverse citizenship of the parties — this being but one of the grounds of the court’s jurisdiction — so that the fact that this did not appear was not material. The plaintiff was entitled to a summons on his praecipe, as it stood. It did not have to be accompanied with a declaration — much less, with one that showed a good cause of action — and the act of the clerk in refusing to docket the case and issue a summons was not justified. The only inquiry, then, is as to the damages which are shown to have been sustained.
The plaintiff claims to have lost the amount for which he tried to 'ng suit, but was not allowed to, which he states as $26,546.18. t the mere fact that he thought he was entitled to recover that does not prove that he was, nor establish, without more, that he injured to that extent by being deprived of the opportunity of g to do so. He must bring forward enough to show that prima , at least, he had a good cause of action against the parties whom
It is said, however, that, the refusal of the clerk being a breach of official duty, the plaintiff is at least entitled to nominal damages. Heater v. Pearce, 59 Neb. 583, 81 N. W. 615. This might be true if this was an action of tort against the clerk alone, the plaintiff being justified in bringing suit to establish his right and compel a recognition of it, although there are excellent authorities which hold that even in, that case something more than nominal damages must be shown. Williams v. Mostyn, 4 Mees. & Wellsby, 145; Stimson v. Farnham, L. R. 7 Q. B. Cases, 175; McAllister v. Clement, 75 Cal, 182; 16 Pac. 775. But the action is based on the defendant’s bon and, if judgment is entered at all, it must be for the full amount of tl penalty, against-both the clerk and his sureties. This bond is giv to the United States, for the joint protection of both the governme- and-private suitors, in a sum which is supposed to be adequate that purpose. Where there has been a breach of official duty, resi ing in; substantial injury, suit may, no doubt; b.e brought upon if
Let judgment be entered on the- demurrer in favor of the defendant, with costs.
NOTE.
In O’Connell v. Mason, 127 Fed. 435, it was held that a suit against a judge for acts done in a judicial capacity, even in excess of his jurisdiction, could not bo maintained, and, having been begun in forma pauperis under Act July 20, 1892, 27 Stat. 252 [U. S. Comp. St 1901, p. 706], would be dismissed, on motion, as frivolous.