United States, to Use of Kinney v. Bell

• Decision Date: 18 January 1905
• Docket Number: 23.
• Citation: 135 F. 336
• Parties: UNITED STATES, to Use of KINNEY, v. BELL et al.
• Court: U.S. Court of Appeals — Third Circuit

135 F. 336

UNITED STATES, to Use of KINNEY, v. BELL et al.

No. 23.

United States Court of Appeals, Third Circuit.

January 18, 1905

Robert D. Kinney, in pro. per.

Wm. M Stewart, Jr., for defendants in error.

Before ACHESON and GRAY, Circuit Judges.

ACHESON Circuit Judge.

This was an action brought in the name of the United States by Robert D. Kinney to his own use. The action was against Samuel Bell, clerk of the Circuit Court of the United States for the Eastern District of Pennsylvania, and his sureties William F. Donaldson and Charles A. Porter, and was upon the official bond of the clerk, given to the United States, in the sum of $20,000, conditioned that the said Samuel Bell 'shall faithfully discharge the duties of his office and seasonably record the decrees, judgments and determinations of the said court and properly account for all moneys coming into his hands, as required by law.'

Although the bond of a clerk of the United States Circuit Court (as in this instance) is given to the United States as sole obligee yet, no doubt, such bond is available to any private suitor to indemnify him for any loss he has sustained by reason of the failure of the clerk to discharge any of the duties of his office. Howard et al. v. United States, 102 F 77, 42 C.C.A. 169.

In the present case the declaration or statement of demand of the use plaintiff (Robert D. Kinney) set out as his ground of action that by his praecipe in writing he requested and ordered the said Samuel Bell, as such clerk, to issue a writ of summons out of said clerk's office, 'in an action intended by him to be thereby commenced in this own behalf for hearing and determination in said Circuit Court for the purpose of obtaining redress, by due course of law, for the deprivation to him of certain rights and privileges secured to him by the Constitution and laws, and to which he had then recently been subjected to by the persons in the said praecipe named as defendants therein, the said persons having perpetrated said deprivations by means of certain acts done by them under color of the laws, custom, and usage of the state of Pennsylvania, whose duly commissioned and legally qualified officers of its judicial power they at the time of their so doing in fact were'; that he delivered to the clerk (Bell) his praecipe, together with his statement of claim in his intended action, but that said clerk 'willfully refused and has utterly neglected to issue said writ of summons,' and also refused to file the papers so presented to him. In his statement of demand in this case, the plaintiff made profert of his statement of claim in his intended action; and he has annexed a copy of that statement, marked 'Exhibit A,' to his assignments of error filed in the court below, which assignments, together with said annexed statement, are now before us for consideration. We agree with the plaintiff in error that said Exhibit A is part of the record in this case. Referring, then, to that paper (Exhibit A), we find that the persons against whom the plaintiff, by his praecipe, ordered a writ of summons to issue out of the office of the clerk of the Circuit Court, were Thomas K. Finletter, Charles B. McMichael, and Henry J. McCarthy, judges of the court of common pleas No. 3 of Philadelphia county, and that the acts complained of were done by them while presiding and sitting as judges of said court; those acts consisting, first, in causing an action which the plaintiff, Kinney, had brought against one Hugg to be improperly docketed in the court of common pleas No. 3, whereas it should have been docketed in one of the other courts of common pleas of Philadelphia county, to wit, in court No. 4; second, in maliciously, and without justification therefor in law, discharging a rule for judgment against Hugg for want of an affidavit of defense in said action against him; and, third, in maliciously, and without justification therefor in law, discharging a rule on said Hugg to show cause why the statement of claim in said action should not be withdrawn, and an amended statement of claim filed, and why the defendant should not file his affidavit of defense thereto, or judgment sec. reg., the praecipe, summons, and record to be amended accordingly.

Although the United States is here the nominal plaintiff, the action was really brought and has been prosecuted by the use plaintiff, Kinney, to recover for an alleged injury sustained by him by reason of the clerk's refusal to issue a summons and file the papers aforementioned. The basis of the claim here declared on is the supposed right of action the use plaintiff had against the persons whom he proposed to sue in the Circuit Court. It becomes, then, important to inquire whether he had a right of action which was frustrated by the clerk's refusal. Now, it has long been the settled doctrine both in England and in this country that judges of courts of general authority are exempt from liability in a civil action for acts done by them in the exercise of their judicial functions. Fray v. Blackburn, 3 Best & Smith (Q.B.) 576, 577; Scott v. Stansfield, 3 Law Reports, Exchequer, 220; 14 English Ruling Cases, 42 et seq.; Yates v. Lansing (Opinion by Kent, C.J.) 5 Johns, 283; Randall v. Brigham, 7 Wall. 537, 19 L.Ed. 285; Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646.

In Fray v. Blackburn, supra, Crompton, J., said:

'It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly. Therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions.'

In Scott v. Stansfield, supra, the Chief Baron said:

'This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and

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