Mitchell v. Greenough

• Decision Date: 18 November 1938
• Docket Number: No. 8874.,8874.
• Citation: 100 F.2d 184
• Parties: MITCHELL v. GREENOUGH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F.2d 184 (1938)

MITCHELL v. GREENOUGH et al.^*

No. 8874.

Circuit Court of Appeals, Ninth Circuit.

November 18, 1938.

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, §§ 1, 2, 17 Stat. 13) and now embodied in the United States Code (8 U.S.C.A. §§ 43, 47). The latter section (47) expressly authorizes 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 right to practice in the state courts and in the United States District Court. The conspiracy charged is claimed to come under the provisions of the federal statutes (8 U.S.C.A. §§ 43, 47, supra). We pause here to observe that the right to practice law in the state court has been held by the Supreme Court not to be a privilege granted by the Federal Constitution or laws. Bradwell v. State of Illinois, 16 Wall. 130, 21 L.Ed. 442; Ex parte Lockwood, 154 U.S. 116, 14 S.Ct. 1082, 38 L.Ed. 929. In Green v. Elbert, 8 Cir., 63 F. 308, the Circuit Court of Appeals held that the conspiracy to deprive a lawyer of his right to practice law in the state courts was not a conspiracy to interfere with any right or privilege "granted, secured or protected by the Constitution of the United States".

The appellant's complaint shows that the main conflict in the testimony before the court in the criminal case was as to whether or not appellant's client had authorized him to retain as his fee $50 which it is admitted had been deposited by the client with him for another purpose. So far as appears from the complaint the only two persons present at the time of the alleged authorization were the plaintiff and the client. Both testified on the trial of the criminal case, the client that he had not authorized the application of the sum of $50 to the payment of plaintiff's attorney fee, and the plaintiff that he had done so.

Appellant alleged in his complaint that the prosecuting attorney and his assistant, as well as the Judge and the witnesses whom he sues, knew that the testimony given by the client and by the other witnesses was false, and that the prosecuting attorney, with that knowledge, placed the client on the witness stand in the criminal action and supported his testimony by the corroborating witnesses who were also made defendants in this action. Upon these allegations appellant contends that the conviction was an absolute nullity under the decisions of the Supreme Court of the United States in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682.

It is a familiar rule of pleading in cases involving delay in the beginning of actions, where it is sought to delay beyond the statutory period by an allegation that the plaintiff did not know or discover the facts upon which he bases his action until a certain date, that such allegation must be fortified by a statement of facts which justifies the claim of ignorance, and this requires a statement of the circumstances under which the discovery was made as well as the reasons for prior ignorance. Lady Washington Consol. Co. v. Wood, 113 Cal. 482, 45 P. 809; Wood v. Carpenter, 101 U.S. 135, 140, 25 L.Ed. 807.

There is an attempt on the part of the plaintiff in his complaint to meet the rule that we have stated by alleging that a short time after the information against appellant was filed, a civil action was brought by the plaintiff against his client involving the question of fees, wherein appellant claims the client alleged and testified that the $50 in question had been applied by his direction upon appellant's claim for attorney fees. We do not wish to be understood as holding that under the doctrine of Mooney v. Holohan, supra, a mere allegation of the knowing use of perjured testimony in a criminal case is sufficient to invoke the power of the court or to require an answer to the charge, but we base our decision herein upon other grounds.

The Civil Rights Bill.

The federal statute relied upon (8 U. S.C.A. §§ 43, 47) was enacted in 1871 to enforce the rights granted by the Thirteenth and Fourteenth Amendments to the Constitution, U.S.C.A.Const. Amends. 13, 14. We set out in the margin the clauses of 8 U.S. C.A. § 47 deemed applicable by the plaintiff.¹ The question then is whether or not a conspiracy to secure a conviction of a criminal offense in a court having jurisdiction thereof and of the defendant by knowingly using perjured testimony to convict an innocent person, is a conspiracy for the purpose of impeding the due course of justice in an attempt to "deny to any citizen the equal protection of the laws". It is only in case of a conspiracy to effectuate such a purpose that one...