Rury v. Gandy

Decision Date22 April 1926
Docket NumberNo. 4314.,4314.
Citation12 F.2d 620
PartiesRURY v. GANDY et al.
CourtU.S. District Court — District of Washington

W. B. Mitchell and Merritt & Curtiss, all of Spokane, Wash., for plaintiff.

Cannon & McKevitt, of Spokane, Wash., for defendants.

CUSHMAN, District Judge.

Plaintiff sues defendants for damages because of malicious prosecution resulting in plaintiff's imprisonment. There is no diversity of citizenship. The plaintiff alleges his adjudication as a bankrupt in this court; that defendants were, in that proceeding, the trustee, the trustee's attorney, and attorney for one of the creditors. It is alleged that the defendants, in pursuance of a conspiracy on their part, by false accusations made to the United States attorney concerning plaintiff, and at defendants' request secured the submission of an accusation against plaintiff to a grand jury of this court, and that they, in furtherance of the conspiracy, knowingly gave false testimony before that body concerning plaintiff, and thereby secured his indictment, prosecution, and imprisonment upon the charge of conspiracy to fraudulently conceal his assets in such bankruptcy proceeding; that this indictment was dismissed upon plaintiff's demurrer thereto; that defendants, by means of other knowingly false accusations and testimony, by them made and given to a grand jury of this court, secured plaintiff's further indictment charging him and another with conspiracy to fraudulently conceal his assets from the trustee in such bankruptcy proceeding, upon which second indictment he was further prosecuted and imprisoned and upon the trial of which a directed verdict of acquittal was rendered.

Plaintiff cites King County v. Seattle School Dist. No. 1 (C. C. A.) 278 F. 46, affirmed in 44 S. Ct. 127, 263 U. S. 361, 68 L. Ed. 339; Eighmy v. Poucher (C. C.) 83 F. 855; Logan v. United States, 12 S. Ct. 617, 144 U. S. 263, 36 L. Ed. 429; Foss v. United States (C. C. A.) 266 F. 881; Nixon v. United States (C. C. A.) 289 F. 177; Steele v. Halligan (D. C.) 229 F. 1011; United States v. Ford (D. C.) 9 F.(2d) 990; United States v. Salih (D. C.) 287 F. 763; Baird v. United States, 196 F. 778, 116 C. C. A. 73; O'Sullivan v. Felix, 34 S. Ct. 596, 233 U. S. 318, 58 L. Ed. 980; Myers v. Anderson, 35 S. Ct. 932, 238 U. S. 368, 59 L. Ed. 1349.

Defendants cite Yeandle v. Penn. Ry., 169 F. 938, 95 C. C. A. 282; Newcomb v. Burbank, 181 F. 334, 104 C. C. A. 164; Sup. Lodge v. England, 94 F. 369, 36 C. C. A. 298; Louisville Ry. v. Mottley, 29 S. Ct. 42, 211 U. S. 149, 53 L. Ed. 126; Shade v. N. P. Ry. Co. (D. C.) 206 F. 353; Brown v. Keene, 8 Pet. 112, 8 L. Ed. 885; Wadleigh v. Newhall (C. C.) 136 F. 941; Hodges v. United States, 27 S. Ct. 6, 203 U. S. 1, 51 L. Ed. 65; Twining v. New Jersey, 29 S. Ct. 14, 211 U. S. 78, 53 L. Ed. 97; Conner v. Elliot, 59 U. S. (18 How.) 591, 15 L. Ed. 497; Marten v. Holbrook (C. C.) 157 F. 716; California Oil Co. v. Miller (C. C.) 96 F. 16; Hartell v. Tilghman, 99 U. S. 547, 25 L. Ed. 357; Spencer v. Duplan Silk Co., 24 S. Ct. 174, 191 U. S. 526, 48 L. Ed. 287; 25 C. J. pp. 718-721; 25 C. J. pp. 775-778; Bankers' Mutual Casualty Co. v. Minneapolis, etc., 24 S. Ct. 325, 192 U. S. 371, 48 L. Ed. 484; Cuyahoga River P. Co. v. Northern Ohio Tract. & Light Co., 40 S. Ct. 404, 252 U. S. 388, 64 L. Ed. 626; Earnhart v. Switzler, 179 F. 832, 105 C. C. A. 260; Devine v. Los Angeles, 26 S. Ct. 652, 202 U. S. 313, 50 L. Ed. 1046; State v. Waite, 70 N. W. 596, 101 Iowa, 377; Walker v. Collins, 17 S. Ct. 738, 167 U. S. 57, 42 L. Ed. 76; Cincinnati Brewing Co. v. Bettman (C. C.) 102 F. 16; City of Stanfield v. Umatilla River Water Co. (C. C.) 192 F. 596; Twin Falls Canal Co. v. Foote (C. C.) 192 F. 583; People's U. S. Bank v. Goodwin (C. C.) 162 F. 937; 25 C. J. p. 732; Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Cunningham v. Neagle, 10 S. Ct. 658, 135 U. S. 1, 34 L. Ed. 55; Maryland v. Soper, 46 S. Ct. 185, 192, 194, 70 L. Ed. ___, original Nos. 23, 24, and 25, October term, 1925, Supreme Court of the United States, decided February 1, 1926; Cunningham v. Mitchell, 218 P. 386, 126 Wash. 294.

The question upon the demurrer, is one of the court's jurisdiction. No case directly in point has been cited to the court. It has been held that a suit against the warden of the United States Penitentiary upon McNiels Island by a prisoner for personal injury, alleged to have been caused by the warden's negligence, was one arising under the Constitution and laws of the United States. Steele v. Halligan (D. C.) 229 F. 1011.

Revised Statutes, § 1980 (Comp. St. § 3933), authorizes suit and the recovery of damages where two or more persons conspire to injure a party or witness in his person or property, on account of his having attended or testified in any court of the United States, if one or more persons engaged in the conspiracy cause any act to be done in furtherance of its object, whereby another is injured in his person or property. Section 643 of the Revised Stat., now in Judicial Code, § 33 (Comp. St. § 1015), provides for the removal of a civil suit against any officer of the courts of the United States, for or on account of any act done under color of his office.

Jurisdiction in this case may not be entertained under the first-cited of these sections, for one reason, because it does not appear that defendants conspired to injure plaintiff on account of his having attended upon or testified before a United States court. Jurisdiction cannot be entertained under the last-cited section, for one reason, because the acts of defendants alleged to have injured plaintiff were not...

To continue reading

Request your trial
3 cases
  • Owens v. First City Nat. Bank of Beaumont
    • United States
    • U.S. District Court — Eastern District of Texas
    • May 26, 1989
    ...Wright & Miller § 3722, at 291 nn. 89-95 (including public lands, interstate commerce, labor relations, trademark and patent). 13 12 F.2d 620 (E.D.Wash.1926) 14 "We are not persuaded, as seems to have been held in Rury v. Gandy ... that a District Court of the United States has original jur......
  • Nationwide Charters and Conventions, Inc. v. Garber
    • United States
    • U.S. District Court — District of Massachusetts
    • April 25, 1966
    ...a federal question whether or not there has been an abuse of the process of a federal court is supported by several cases. Rury v. Gandy, 12 F.2d 620 (E.D.Wash. 1926); Eighmy v. Poucher, 83 F. 855 (C.C.N.D.N.Y.1898); Hurst v. Cobb, 61 F. 1 (C.C.N.D.Texas 1894); see also Bock v. Perkins, 139......
  • Voors v. NAT. WOMEN'S HEALTH ORGANIZATION, INC.
    • United States
    • U.S. District Court — Northern District of Indiana
    • June 17, 1985
    ...is a federal question. Defendants cite Nationwide Charters and Conventions, Inc. v. Garber, 254 F.Supp. 85 D.Mass.1966 citing Rury v. Gandy, 12 F.2d 620 E.D.Wash.1926; Eighmy v. Poucher, 83 Fed. 855 C.C.N.D.N.Y.1898; Hurst v. Cobb, 61 Fed. 1 C.C.N.D.Tex. 1894 in support of their The Supreme......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT