Brinkley v. Louisville & N. R. Co.

• Decision Date: 23 June 1899
• Citation: 95 F. 345
• Court: U.S. District Court — Western District of Tennessee
• Parties: BRINKLEY v. LOUISVILLE & N.R. CO.

95 F. 345

BRINKLEY v. LOUISVILLE & N.R. CO.

United States Circuit Court, W.D. Tennessee.

June 23, 1899

On Application for Appeal.

1. APPEAL-- POWER OF CIRCUIT COURT TO DENY.

The allowance of an appeal by a circuit court is not a matter of course, though a proper application therefor is seldom denied; and where a suit, as disclosed by the bill, is clearly not within the jurisdiction of that or the appellate court, and has been dismissed on that ground, and is moreover, so manifestly vexatious and without legal merit that it is impossible to be maintained in any court, and the court would have been justified in striking the bill from its files, an application for an appeal in forma pauperis will be denied.

2. APPEAL-- IN FORMA PAUPERIS-- STATUTE.

Although it be a proper construction of Act July 20, 1892 (27 Stat. 252, c. 209), that an appeal may be prosecuted in forma pauperis, the circuit court has authority, under section 4 of that act, to refuse the privilege to a litigant, if it deems the cause unworthy of a trial, or is satisfied that the alleged cause of action is frivolous or malicious.

On the 6th of December, 1898, the plaintiff, describing himself as a 'resident of San Joaquin county, California,' filed this bill, describing the railroad company only as 'defendant'; these descriptions, such as they are, being found only in the caption. The bill is drawn in four numbered paragraphs, and, being brief, will be here inserted as a part of this statement of the case, to speak for itself, as follows:

'To the Chancellor of the Court of Equity in the United States Circuit Court of the Western District of Tennessee.

'W. A. Brinkley, Resident of San Joaquin County, California, Complainant, v. Louisville & Nashville R.R. Co., Defendant.

'(1) Complainant sues for revival of judgment by verdict of jury rendered June 15, 1887, in circuit court of Shelby county, in case known as 'W. A. Brinkley v. Louisville & Nashville R.R. Co.'

(2) The facts are as follows: Complainant bought a first-class ticket at Brownsville to Memphis, Tenn. When he entered the car he was assaulted by brakeman of the train at the same time defendant cocked a pistol and pointed in his face, thus ordering out of car. Complainant brought suit in justice court of Shelby county, which gave judgment for complainant for the sum of $100. Defendant made little or no defense, but appealed to the circuit court of Shelby county. Upon trial in the aforesaid court, by written instrument defendant acknowledged and confessed the whole transaction.

'(3) Defendant then warned the jury, through attorney, against the danger to which they would subject their wives and daughters if they recognized complainant's right by giving verdict according to the law and evidence. Following this instruction, the jury rendered verdict contrary to the evidence in the case established by complainant and acknowledged by defendant, as papers in the case will show. The spirit of persecution exhibited by defendant against complainant, and the effect of the verdict rendered contrary to the law and evidence, resulted in a mental prostration which impaired him for service more than thirty days, and enfeebled him more than two years, but he has never been sound as before.

'(4) Complainant's financial capacity, after having spent $300 trying to redress his wrongs upon said strong corporation in the within-mentioned and previous case, compelled him to cease litigation, for want of means, until now. Wherefore complainant prays that the aforesaid judgment be set aside, vacated, and made void, and that defendant pay to complainant:

The amount as adjudged by justice court .........................	$ 100 00
And the interest on same from June 15, '87 ..........................	69 00
Additional for assault and breach of my civil and equal rights .....	675 07
Fare from Brownsville, Tenn., and return, for three witnesses, nine trips ........................................................	30 60
Five witness fees, 36 days ..........................................	54 00
For the personal injury ..........................................	1,200 00
	---------
	$2,128 67

-- And that a copy of the papers used in the aforesaid trial, June 15, 1887, especially the instrument which defendant used in acknowledging and confessing the deed perpetrated upon complainant, that the same be ordered and procured for this testimony in this case. Complainant prays further that scire facias be issued upon defendant, allowing ten days to appear and plead, and that defendant be charged with all cost in this case.

'W. A. Brinkley, 122 Dunlap St.

'Sworn to and subscribed before me 6th December, 1898.

'W. B. Weisiger, D.C.'

As originally drawn, the item of $675.07, 'for assault and breach of my civil and equal rights,' was not contained in the bill of particulars mentioned in the prayer of the bill; and, being presented to the clerk, he informed the plaintiff that the court had no jurisdiction of such a suit, and advised him against filing it,-- among other things, telling him that the amount sued for was below $2,000. Afterwards, on the 9th of December, 1898, the plaintiff filed an amended bill, as follows:

'Amendment to Bill.

'To the Chancellor of the United States Circuit Court for the Western District of Tennessee.

'W. A. Brinkley, Complainant, v. Louisville & Nashville R.R. Co.,

Defendant.

'Complainant obtained judgment against defendant in justice court for $100. Defendant made little or no defense, but appealed to the circuit court, and upon trial in same, by written instrument, acknowledged the guilt of the whole transaction. Wherefore complainant prays for debt as follows, to wit:

By judgment of lower court ........................................	$ 100 00
Interest on same from June 15, '87 ....................................	69 00
Additional for assault and breach of my civil and equal rights .......	675 07
For injury to my health, as the result of the false judgment and the persecuting spirit in the trial in the circuit court .........	1,200 00
Fare from Brownsville and return, of three witnesses, nine trips ......	30 60
36 days for 3 witnesses, $1.50 per diem ...............................	54 00
	---------
	$2,128 67

'This amendment pertains to that part of original bill that refers to the amount of judgment of the lower court, and the interest pertaining thereto, etc.

'W. A. Brinkley.

'Sworn to and subscribed before me this 9th day of December, 1898.

'W. B. Weisiger, D.C.'

On the 14th of December, 1898, a certified transcript of the proceedings before the justice of the peace, and the appeal in the circuit court of Shelby county, was filed by the plaintiff, which shows, briefly, the summons of the railroad company before the justice of the peace, which was executed on the 25th of July, 1885. The case was set for trial, and the plaintiff had judgment on the 31st day of July, 1885, for $100. It then shows that there was an appeal by the railroad company to the circuit court of Shelby county, but nothing else is shown by the transcript, except the deposition of one Gividen taken in behalf of the defendant. S much of the proceedings in the circuit court as the plaintiff chose to file was evidently copied by the plaintiff himself, and certified by the clerk. It appears, however, from the bill itself, and subsequently otherwise, in the record, that there was a trial in the circuit court before a jury, with a verdict and judgment for the defendant railroad company against the plaintiff. The precise date of this judgment does not appear, but it was probably at the September term, 1885, of the circuit court, to which the appeal was taken.

On the 2d of January, 1899, the defendant appeared by its solicitor, and moved to dismiss this cause for want of jurisdiction, which was done. Whereupon, within due time, the plaintiff filed, on April 1, 1899, his prayer for appeal, as follows:

'To Judge in Equity of the United States Circuit Court.

'W. B. Brinkley, Memphis, Tenn., Resident of San Joaquin County, California, Complainant, v. Louisville & Nashville R.R. Co., Defendant.

(No. 529 R.D.)

'Prayer for Appeal.

'Your honorable court dismissed the aforesaid bill in equity March 16, 1899, from which decree, and from all other decrees made in this court at the present term, your complainant prays an appeal to the next term of the United States circuit court of appeals, at Cincinnati, Ohio. Your appellant, being not a resident of the state of Tennessee, and having nothing upon which to give the required bond, prays, also, to be allowed to take the pauper's oath.

'W. A. Brinkley.'

On the 5th of April, 1899, he also filed what is styled 'A Bill of Exceptions,' and with it presents for filing what he calls 'Exhibit A' to the bill of exceptions, and another paper called an 'Addenda to the Appeal and Petition for the Same. ' The bill of exceptions is sworn to before a notary public, and commences as follows 'Your appellant, W. A. Brinkley, respectfully prays this appeal to your honorable court against the above respondent in a bill in equity from the United States circuit court, Memphis, Tenn. The appeal is prayed on the following grounds, which shall constitute the bill of exceptions in this case, to wit. ' It is addressed to the 'Honorable Judges of the United States Circuit Court of Appeals for the Sixth Judicial District, Cincinnati, Ohio. ' Possibly this was intended as an assignment of errors in the appellate court. At all events, in numbered paragraphs, like the bill, it states chronologically the 'history of the case,'...