Sullivan v. Kelleher, 7183.
| Citation | 405 F.2d 486 |
| Decision Date | 24 December 1968 |
| Docket Number | No. 7183.,7183. |
| Parties | James D. SULLIVAN, Plaintiff, Appellant, v. T. Francis KELLEHER, Defendant, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Harvey Glass, West Peabody, Mass., for appellant.
Benjamin Goldman, Boston, Mass., for appellee.
Before ALDRICH, Chief Judge, WOODBURY,* Senior Circuit Judge, and COFFIN, Circuit Judge.
The appellant, alleging himself to be a "resident and domiciliary" of New Jersey, brought this action sounding in tort in the court below against the appellee alleging him to be a citizen of Massachusetts and formerly clerk of the District Court of Newburyport in that Commonwealth. Federal jurisdiction is asserted on diversity of citizenship and amount in controversy, Title 28 U.S.C. § 1332(a) (1), and on deprivation of a federally guaranteed right in violation of § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983.
The plaintiff seeks damages from the defendant basically on the ground that the court of which at the time he was clerk entered a default judgment evicting the plaintiff from his rented residence in Newburyport without giving him legal notice of the action, that is to say, by service of process at the "last and usual place of abode" without any further notice although it was well known that at the time the plaintiff was away from his home on an extended business trip to Florida.1 The court below dismissed the plaintiff's complaint on the defendant's motion for summary judgment. We affirm.
We do not pause to consider the adequacy of the service of process or any other alleged error committed by the defendant as clerk of the Newburyport District Court but pass directly to the matter of judicial immunity.
For the soundest reasons of policy it has long been established that when a judge has general jurisdiction over the subject matter he is not civilly liable for acts done in the exercise of his judicial function. Bradley v. Fisher, 13 Wall 335, 346 et seq., 20 L.Ed. 646 (1871). But this does not mean that judicial immunity hangs upon the determination of nice questions of jurisdiction which as the Court pointed out in Bradley v. Fisher, at page 352 can be "some of the most difficult and embarrassing" that a judicial officer may be called upon to consider and decide. The distinction which must be observed is "between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter." Bradley v. Fisher, supra 351.
Since the plaintiff concedes that the Newburyport District Court had...
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