Clark v. Sandusky

• Decision Date: 20 July 1953
• Docket Number: No. 10846.,10846.
• Citation: 205 F.2d 915
• Parties: CLARK et al. v. SANDUSKY et al. Appeal of DE ROSE.
• Court: U.S. Court of Appeals — Seventh Circuit

205 F.2d 915 (1953)

CLARK et al. v. SANDUSKY et al. Appeal of DE ROSE.

No. 10846.

United States Court of Appeals Seventh Circuit.

July 20, 1953.

Ulysses S. Keys, Wm. R. Ming, Jr., and Floyd E. Thompson, Chicago, Ill., for Clark and Sandusky.

Laurence M. Fine, Chicago, Ill., for De Rose.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

Camille De Rose, hereinafter referred to as petitioner, appeals from an order of the District Court, denying her motion for leave to intervene. In the original action, filed June 19, 1951, plaintiffs, Negro citizens of the United States and of the State of Illinois, assert a right of action arising under the Constitution and the Civil Rights Statutes, 8 U.S.C.A. §§ 43, 47 and 48, and invoke the jurisdiction of the federal court under 28 U.S.C. § 1343(1), (2) and (3).

The material averments of the complaint are that, on or about June 6, 1951, plaintiffs Harvey Clark, Jr., and Johnetta, his wife, entered into an agreement with the landlord and owner of the premises known as 6139 West 19th Street, Cicero, leasing to them apartment C-5 therein for a period of one year, paid one month's rent in advance, received the keys to the apartment and got the consent of the owner to move into the apartment on June 8, 1951; that on June 7, 1951, Clark purchased a quantity of furniture from plaintiff, Maurice Scott, Sr., for $2700, and employed him to move it to apartment C-5; that, on June 8, 1951, the Clarks, with the aid of the other plaintiffs, attempted to move into the apartment; that defendant Konovsky, Chief of Police of Cicero, together with other police officers, acting under the authority granted him by the Town of Cicero and the officers thereof, by and under color of the laws of the State of Illinois, assaulted, mistreated and abused plaintiffs and prevented the Clarks from entering the premises, and that plaintiffs were, by defendant Konovsky, ordered to leave town, and threatened with serious injury if they should return. Plaintiffs contend that these acts constituted a violation of their rights under the Constitution, and pray damages and an injunction restraining defendants from interfering with the Clarks' alleged right of occupancy of the apartment.

On January 5, 1953, petitioner filed a motion for leave to intervene, alleging violation of her rights as a citizen. She does not challenge the right of plaintiffs to recover for violations of their personal rights by defendants, but denies that the Clarks have any property interest whatsoever, leasehold or otherwise, in the premises at 6139 West 19th Street, Cicero, or in the greater part of the furniture involved. Petitioner avers that she is the owner and landlord of the apartment building and owner of all of the furniture involved herein, with the exception of a few items, which she admits were the property of Clark. She further avers that, at all pertinent times, this furniture was located in apartment C-5; that plaintiffs conspired with one Adams, an attorney, and others (1) to make such unlawful use of her property as "to create an incident", by having a Negro attempt to move into Cicero as a challenge to the denial of Negroes' civil rights, (2) to spread the challenge among all noncaucasian people and (3) to fabricate grounds for lawsuits as an aid to a fund raising drive by the National Association for the Advancement of Colored People.

The following facts are averred to be the means through which this conspiracy was effectuated. Petitioner was fraudulently persuaded by Adams, who falsely purported to act for her best interests as her counsel, to place the title to the premises in trust with the LaSalle Street Trust and Savings Bank, and, thereafter, to assign the beneficial interest therein to Adams. These transactions were promoted solely as a part of the scheme of plaintiffs and others to create a race riot. Thereafter the Clarks were selected, on the basis of Clark's war record and reputation, as the parties to attempt to move into the apartment in order to promote a test case; and, at the instance of Adams, petitioner was caused to be incarcerated wrongfully, first, in the Cook County Jail, and later in a mental institution, to prevent her from asserting her rights in the real and personal property in issue. Petitioner further avers that she was requested by Adams to execute a lease of the apartment to the Clarks, and that she refused to do so.

She avers that these concerted acts by plaintiffs, Adams and others, and the consequential acts of defendants in opposition to plaintiffs' scheme caused her building to be damaged seriously and boarded up on order of the court and her furniture and effects to be destroyed. Wherefore, she avers, she has suffered damages and prays judgment against both plaintiffs and defendants.

Petitioner's contention that she should have been permitted to intervene as amicus curiae is, we think, without merit. Her petition is addressed solely to a request for leave to participate as a party, not for leave to appear in an amicus capacity. An amicus curiae is "not a party to the action, but is merely a friend of the court whose sole function is to advise, or make suggestions to, the court." Klein v. Liss, D.C.Mun.App., 43 A.2d 757, 758. See also, City of Winterhaven, Fla. v. Gillespie, 5 Cir., 84 F.2d 285, certiorari denied Hartridge-Cannon Co. v. Gillespie, 299 U. S. 606, 57 S.Ct. 232, 81 L.Ed. 447.

Furthermore, the granting or denial of an application to intervene in such capacity, lies wholly within the discretion of the trial court and is not reviewable. The Claveresk, 2 Cir., 264 F. 276; In re Columbia Real Estate Co., D.C.Ind., 101 F. 965. Therefore, even if petitioner's application could be interpreted as a request to intervene as amicus curiae, the trial court's order is not reviewable.

We are of the opinion, also, that petitioner cannot prevail in her argument that she should have been permitted to intervene under the rule covering permissive intervention, F.R.Civ.P. 24(b), 28 U.S.C. A., for the granting or denial of permissive intervention is discretionary with the trial court, and reviewable only for abuse. Allen Calculators, Inc. v. National Cash Register Co., 1944, 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188; American Brake Shoe and Foundry Co. v. Interborough Rapid Transit Co., 2 Cir., 112 F.2d 669; Palmer v. Guaranty Trust Co., 2 Cir., 111 F.2d 115. See also, In re Dolcater, 2 Cir., 106 F.2d 30.

Obviously, petitioner presents "questions of law and fact" in common with the main action, for she asserts a substantial interest in the litigation and a claim adverse to both plaintiffs and defendants. In this respect she brings herself within the provisions of Rule 24(b) (2), and the trial court...