Green v. Elbert

• Decision Date: 05 January 1891
• Citation: 11 S.Ct. 188,34 L.Ed. 792,137 U.S. 615
• Parties: GREEN v. ELBERT et al
• Court: U.S. Supreme Court

137 U.S. 615

11 S.Ct. 188

34 L.Ed. 792

GREEN v. ELBERT et al.

January 5, 1891.

On the 20th day of January, 1887, Thomas A. Green brought his action at law in the circuit court of the United States for the district of Colorado against Samuel H. Elbert, William E. Beck, Joseph C. Helm, Merrick A. Rogers, Lucius P. Marsh, and J. Jay Joslin, claiming damages in the sum of $50,000. April 18, 1887, he filed his amended complaint in said cause, alleging a conspiracy on the part of defendants Rogers, Marsh, and Joslin to bring about a disbarment of plaintiff for filing a bill in equity, in the discharge of his duties as solicitor of one Mrs. Newton and her husband, against Joslin, making certain charges against defendants Rogers and Marsh; and that the defendants Elbert, Beck, and Helm, who were at the time judges of the supreme court of Colorado, confederated and conspired with defendants Rogers, Marsh, and Joslin to carry out and consummate the original conspiracy, and entered judgment disbar. ring the plaintiff accordingly. The complaint purported to be brought and was claimed to be sustainable under sections 1979-1981, Rev. St., in connection with section 5407, pp. 347, 348, 1047, Rev. St. 1878.

Demurrers were filed on behalf of defendants Elbert, Beck, and Helm, and also of defendants Rogers, Marsh, and Joslin, which, upon argument, were sustained by the court, and judgment entered for the defendants, July 27, 1887. On the 3d of October, 1887, plaintiff filed his bond, which was duly approved, and a writ of error was allowed and issued, and on the same day he filed a stipulation that the record might be filed in this court, and the cause be docketed at any time during the October term, 1887, of the court. Citation, returnable to October term, 1887, was taken out and served. On the 20th of April, 1888, the plaintiff filed in the circuit court in said cause his praecipe for transcript of record, which was accordingly made out, as directed, and certified by the clerk of that court May 5, 1888. On that day plaintiff wrote to the clerk of this court, as follows: 'I herewith send you a record in a case of my own. Will send you a docket fee and a stipulation to submit under rule 20 in a few days. Please send me two blanks for entering the appearance of attorneys for both parties.' This letter and the transcript reached the clerk May 10, 1888, and he replied: 'Yours of the 5th inst., also transcript of record in case of Green v. Elbert et al., duly received. I inclose two blank orders for appearance as requested. I notice what you say as to furnishing deposit on account of costs and sending stipulation to submit case under the 20th rule.' Nothing further appears to have been done in the premises until on January 7, 1890, plaintiff in error wrote to the clerk as follows: 'I find on looking over my books at New Year's that I hd f orgotten to send you a docket fee in the case of Thomas A. Green v. Samuel Elbert William E. Beck, Joseph C. Helm, Merrick A. Rogers, Lucius P. Marsh, and J. Jay Joslin. This record was sent up from the U. S. circuit court for the district of Colorado, a year or more ago, on writ of error. If you have not docketed the case please do so at once, and inform me by return mail. I herewith send you draft on New York for $25.' Upon the receipt of this letter, January 13, 1890, the transcript of record was filed, and the clerk wrote on the 15th: 'Yours of the 7th inst., inclosing draft on N. Y. for $25, on account of deposit in case of Green v. Elbert et al., duly received, and I have docketed the case No. 1,541 for Oct. term, 1889, entering your appearance of counsel for pl'ff in error.' To this plaintiff in error relied January 20th: 'Yours of the 15th inst. at hand. I have signed, and herewith return my appearance in the case of Thomas A. Green v. Samuel E. Elbert et al., No. 1,541.'

November 17, 1890, defendants in error filed a motion to dismiss, with which was united a motion to affirm, and a brief in support thereof, and gave notice to plaintiff in error that such motion would be submitted on the 15th day of December. On the 13th of December a lengthy affidavit of plaintiff in error was filed in the cause, stating that plaintiff 'is now and has been for many years past a member of the bar of the United States circuit court for the district of Colorado, and also a member of the bar of the supreme court of the United States;' that he had been attending to this suit in the circuit court and in the supreme court in person; that on or about the 5th day of May, 1887, (1888,) he caused the transcript of the record, the writ of error, citation, and bond, duly certified, to be forwarded to the clerk of the supreme court in accordance with a stipulation that the record and writs might be returned at any time during the October term, 1887, of the supreme court; and, 'as he now remembers and believes, that he requested the clerk of the supreme court, at the city of Washington, to file said record as soon as the same should reach him; and affiant further states that he has not now any remembrance or recollection of having neglected anything at all on his part which was necessary for him to do in order to have said record filed in the clerk's office of the supreme court of the United States as soon as the same reached the said clerk in the city of Washington;' that he resides more than 2,000 miles from the capital, and never has been and is not now familiar with the rules and customs of the clerk, and with the manner in which business is transacted by him in his office, and that, if he did not comply with all the requirements of the clerk with regard to the filing of the record, it was because he did not understand the same; and that he never has at any time knowingly and intentionally neglected anything whatever pertaining to the sending and filing of the record or the prosecution of the suit, but always intended to use all due diligence in having the record sent and filed, and in vigorously prosecuting his suit; that he has had no time or opportunity, living at the distance he does, and being compelled to prepare a brief and argument on the motion to dismiss, to investigate the reason why said record was not duly filed as soon as sent to the clerk; that, whatever may have been the reason, affiant has not intentionally in any manner neglected what the supposed and believed was necessary for him to do in order to have the record filed, and has no knowledge or information why it was not filed 'from early in May, 1887, [1888,] until the 13th day of January, 1890,' and that if the clerk had any good reason for not filing the record, or if affiant neglected anything that was necessary for him to do to secure it, this was the result of mistake and ignorance and not of intentional neglect or delay, and he does not believe himself to be in any manner to blame; that efe ndants in error made no effort to have the case dismissed until nearly one year after the record had been filed, and did not, during the time the record remained unfiled in the office, 'if there ever was any such time;' that for at least one year past affiant has been watching said case with great care and diligence, and had just forwarded a complete assignment of errors, and had said case prepared so far as he could prepare the same, at the time he received notice of the motion to dismiss, and was awaiting the usual time when the record in said case should be printed, and he could file his...