United States, to Use of Kinney v. Bell

• Decision Date: 29 February 1904
• Docket Number: 32.
• Citation: 127 F. 1002
• Parties: UNITED STATES, to Use of KINNEY, v. BELL.
• Court: U.S. District Court — Eastern District of Pennsylvania

127 F. 1002

UNITED STATES, to Use of KINNEY, v. BELL.

No. 32.

United States Circuit Court, E.D. Pennsylvania.

February 29, 1904

Robert D. Kinney, for plaintiff.

Wm. M Stewart, Jr., for defendant.

ARCHBALD District Judge.

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 praecipe 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 it application.

In the case in hand, the plaintiff, on presenting his praecipe, 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 bring suit, but was not allowed to, which he states as $26,546.18. But the mere fact that he thought he was entitled to recover that sum does not prove that he was, nor establish, without more, that he was injured to that extent by being deprived of the opportunity of trying to do so. He must bring forward enough to show that prima facie, at least he had a good cause of action against the parties whom he desired to sue, and only as this id done is he entitled to maintain his action. Stevens v. Rowe, 3 Denio, 327; State v. Fleming, 124 Ind. 97, 24 N.E. 664. But, as already stated, only in the vaguest and most indefinite way is any sort of a case against them suggested. His proposed action, as he avers, was 'for the purpose of obtaining redress by due course of law for the deprivation * * * of certain rights and privileges secured to him by the Constitution and laws (whether of state or nation is not indicated), and to which he had then recently been subjected by the persons in said praecipe...