Edgerly v. Kennelly

• Decision Date: 20 September 1954
• Docket Number: No. 11131.,11131.
• Citation: 215 F.2d 420
• Parties: EDGERLY v. KENNELLY et al.
• Court: U.S. Court of Appeals — Seventh Circuit

215 F.2d 420 (1954)

EDGERLY v. KENNELLY et al.

No. 11131.

United States Court of Appeals Seventh Circuit.

September 1, 1954.

Rehearing Denied September 20, 1954.

Eugene T. Devitt, Chicago, Ill., for appellant.

John J. Mortimer, W. Donald McSweeney, Thomas Dodd Healy, Harold Stickler, Robert Tieken, John Peter Lulinski and L. Louis Karton, Head of Appeals and Review Division, Chicago, Ill., for appellee; Arthur Magid, Asst. Corp. Counsel, Chicago, Ill., of counsel.

Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.

MAJOR, Chief Judge.

Plaintiff commenced this action for the recovery of damages against certain officials of the City of Chicago and others (named as defendants) pursuant to the Federal Civil Rights Act, 8 U.S.C.A. §§ 43, 47 and 48.¹ The complaint sets forth detailed allegations of police brutality, which it was alleged the defendants (except defendant Kennelly) committed pursuant to a conspiracy. There is no occasion to recite the allegations of the complaint in view of the question here presented for decision. The District Court in denying defendants' motion to dismiss held that a cause of action was stated.

Subsequent to the commencement of this civil action, plaintiff was convicted of serious criminal offenses in both the United States District Court of Chicago and the State Court of Cook County. As a result of his conviction in the District Court, he was sentenced to a long term in the custody of the Attorney General of the United States, and is now and has been at all times material to the question with which we are concerned confined in the United States Penitentiary at Alcatraz Island, California.

On May 22, 1953, a petition was filed by Eugene T. Devitt, attorney for plaintiff, in which it was recited that Daniel A. Gilbert (one of the defendants) had submitted interrogatories pursuant to Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and that plaintiff's attorney and Gilbert had agreed that in lieu of plaintiff filing an answer to the interrogatories his deposition be taken in Chicago. The petition prayed for the issuance of a writ of habeas corpus ad testificandum, directed to the Penitentiary Warden at Alcatraz, commanding that plaintiff be returned to Chicago for the purpose of taking such deposition. Pursuant to said petition, District Judge William J. Campbell, on May 22, 1953, entered an order directing the issuance of the writ. On July 15, 1953, the government by the United States Attorney in Chicago moved to quash the writ. On September 18, 1953, Judge Julius J. Hoffman of the same court entered an order quashing the writ directed by Judge Campbell. On January 5, 1954, Judge Hoffman denied a motion by defendant Gilbert to dismiss on the ground that plaintiff had not been produced for the taking of his deposition.

The case being at issue was set for trial on January 18, 1954. Three days previously, January 15, 1954, a petition was filed by plaintiff's attorney wherein he prayed for the issuance of a writ of habeas corpus ad testificandum directed to the Warden of the United States Penitentiary, Alcatraz Island, California, commanding him to produce the plaintiff in the District Court in Chicago on Monday, January 18, 1954, to testify in the civil action in which he was the plaintiff. On the same date, an order was entered by Judge Hoffman denying the prayer of the petition, and on January 18, 1954, plaintiff's attorney stated that he was unable to proceed without the testimony of plaintiff. On January 18, 1954, an order was entered by Judge Hoffman upon defendants' motion, dismissing the action. From this order of dismissal the appeal comes to this court.

The contested issues as stated by plaintiff are: (1) Did the District Court have jurisdiction by means of the writ sought to require that the plaintiff's custodian produce him in Chicago for the purpose of testifying as a witness in his own behalf in his civil action for damages? (2) Did Judge Hoffman have the authority to quash the writ previously issued by Judge Campbell? and (3) Did Judge Hoffman abuse his discretion in denying the writ sought by the plaintiff for the purpose of enabling him to testify in Chicago?

It is obvious that contested issues 2 and 3 require no consideration if contested issue 1 is decided adversely to plaintiff. More particularly, if the court was without jurisdiction to issue the writ sought, no other questions need be considered.

The jurisdictional issue is important, and we might add, novel, in the sense that we know of no case wherein the precise question has been decided. The conclusion which we reach is that the court properly denied issuance of the writ sought on the ground that it was without jurisdiction.

Plaintiff emphasizes that Congress, by its civil rights enactment, has specifically provided redress for a violation of his constitutional rights. This is true but, even so, we do not discern how it aids in a solution of the jurisdictional issue. After all, the action is civil and the redress sought is damages for the alleged violation of plaintiff's rights. It is only intimated, not directly asserted, that there is language in the civil rights provisions which enhances territorial jurisdiction of a court and we find no reason to think the jurisdictional issue is any different from that which it would be if the cause of action rested upon some other premise. Plaintiff in his brief tacitly concedes that which he expressly conceded in oral argument, that is, that the jurisdiction of the court, if it exists, must be found in the "all writs statute," 28 U.S.C.A. § 1651, which authorizes a court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." It is pointed out that the court had jurisdiction of the action and it was in aid of its jurisdiction that the plaintiff be brought to Chicago to testify in his own behalf. This contention, if accepted, would mean that this provision enlarged the territorial jurisdiction of the court. We think that such is not its purpose. While the section augments the power of a court in cases of existing jurisdiction, it in no wise expands or extends its territorial jurisdiction.

As stated in In re Previn, 1 Cir., 204 F.2d 417, 418, "The basic purpose of § 1651, and of its statutory predecessors, was to assure to the various federal courts the power to issue appropriate writs and orders of an auxiliary nature in aid of their respective jurisdictions as conferred by other provisions of law."

In Phillips v. Hiatt, D.C., 83 F. Supp. 935, at page 938, a case in point by analogy, the reasoning of which we think is sound, the court cited, State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, as authority for the statement, "Under general provisions of law, a United...