100 F.2d 184 (9th Cir. 1938), 8874, Mitchell v. Greenough

Docket Nº:8874.
Citation:100 F.2d 184
Party Name:MITCHELL v. GREENOUGH et al.
Case Date:November 18, 1938
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 184

100 F.2d 184 (9th Cir. 1938)

MITCHELL

v.

GREENOUGH et al.

No. 8874.

United States Court of Appeals, Ninth Circuit.

November 18, 1938

Page 185

Walter B. Mitchell, of Spokane, Wash., for appellant.

Ralph E. Foley and A. O. Colburn, both of Spokane, Wash., for appellees Greenough, Foley, Martin and American Surety Co. of New York.

Post, Russell, Davis & Paine, of Spokane, Wash., for appellees Paine & Webster.

Charles W. Gillespie, of Spokane, Wash., in pro per.

Joseph McCarthy, of Spokane, Wash., for appellees LePage & Moe.

Williams & Redfield, of Spokane, Wash., for appellee Fidelity & Deposit Co. of Maryland.

Before WILBUR, HANEY, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing appellant's complaint for lack of jurisdiction. The appellant predicated jurisdiction upon an alleged cause of action under legislation enacted by Congress during the reconstruction period (Act April 20, 1871, ch. 22, Secs. 1, 2, 17 Stat. 13) and how embodied in the United States Code (8 U.S.C.A. §§ 43, 47) The latter section (47) expressly authorized an action for the recovery of damages. Such an action, unless the claim made is purely colorable, is an action based upon the laws of the United States as to which the federal courts have jurisdiction. O'Sullivan v. Felix, 5 Cir., 194 F. 88, Id., affirmed, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702, 3 Ann.Cas. 500; Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577.

The demurrers in this case also raised the question of the sufficiency of the facts stated in the complaint to constitute a cause of action and pleaded the bar of the statute of limitations. A brief statement of the allegations of the complaint, which comprises forty-eight pages of the transcript, is essential to a consideration of the questions involved on this appeal.

Plaintiff alleges that he was convicted in the Superior Court of the State of Washington of the crime of embezzlement, designated as grand larceny under the Washington statutes, and sentenced to a term in the penitentiary; that the judgment of conviction was affirmed by the Supreme Court of the State of Washington, State v. Mitchell, 178 Wash. 196, 34 P.2d 902; that the Governor granted appellant a pre-parole upon condition that he acquiesce in an order of disbarment; that in consequence he signed a consent to disbarment by the state courts of Washington, that an order of disbarment was entered in such state court, and thereafter an order of disbarment was entered in the United States District Court for the Eastern District of Washington; that he did not resist the application for disbarment by the United States District Court. Appellant awaited the expiration of his term of parole and thus secured the benefit of the statute which, in effect, operated to pardon a person who had faithfully performed his obligations as a parolee, and then brought this action charging the Prosecuting Attorney and Deputy Prosecuting Attorney, who prosecuted him, the Superior Court Judge before whom the case was tried, two of the witnesses who testified in the case, and the prosecuting witness, with conspiring to deprive him of his right to practice law in the courts of the state and in the United States District Court, by means of perjured testimony known to the conspirators to be perjured as a means of intimidating the plaintiff into surrendering his...

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