Viles v. Symes

• Decision Date: 03 August 1942
• Docket Number: No. 2481.,2481.
• Citation: Viles v. Symes, 129 F.2d 828 (10th Cir. 1942)
• Parties: VILES v. SYMES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

129 F.2d 828 (1942)

VILES v. SYMES et al.

No. 2481.

Circuit Court of Appeals, Tenth Circuit.

August 3, 1942.

Edmond L. Viles, pro se appellant.

William H. Scofield, of Denver, Colo., for appellees.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Two questions were decided by the trial court and are presented here on appeal: (1) whether the court has jurisdiction of the subject matter as one arising under the Constitution and laws of the United States, cognizable in the courts of the United States, and (2) if Federal jurisdiction is present, is a "judgment as of nonsuit" by a Colorado court involving the same subject matter and parties res judicata? The trial court denied Federal jurisdiction, but ruled that the "judgment as of nonsuit" was res judicata, and the plaintiff has appealed. Of course, if the trial court lacked jurisdiction of the subject matter, it was unnecessary to consider the conclusiveness of the judgment of the Colorado court. We shall first consider the jurisdictional question.

The petition discloses that in 1931 the appellant, Edmond L. Viles, was indicted, tried, and convicted in the United States District Court of Colorado for violation of the national bankruptcy law, Section 29, sub. b(6), Bankruptcy Act of July 1, 1898, 11 U.S.C.A. § 52, sub. b(6). Before imposition of sentence, the appellant appealed to the Circuit Court of Appeals. The appeal was dismissed because judgment and sentence had not been entered. Thereafter appellant applied to the United States Supreme Court for a writ of certiorari; while this proceeding was pending, he was granted an executive pardon. Subsequently appellant brought suit in a Colorado court against J. Foster Symes as United States District Judge, Ralph L. Carr as United States District Attorney, Ivor O. Wingren as deputy United States Attorney, Earle F. Wingren as Trustee in Bankruptcy, Harold F. Collins, Samuel J. Frazin, and L. B. Johnson, attorneys at law, for malicious prosecution and false imprisonment. The complaint was dismissed on motion of the defendants (appellees here), and on appeal to the Supreme Court of Colorado, the case was reversed and remanded for trial. Viles v. Symes, 100 Colo. 50, 65 P.2d 1089. On the trial of the case in November, 1937, and at the close of the plaintiff's testimony, the Colorado court sustained a motion for a nonsuit, and thereafter on February 17, 1940, the court entered "judgment of dismissal as of nonsuit." The appellant did not pursue his remedy further in the state court, but on February 15, 1940, instituted this suit in the United States District Court of Colorado against the same parties, alleging the same subject matter.

In his petition, the appellant asserts that the action arises under the First, Fifth and Sixth Amendments to the Constitution of the United States, and Revised Statutes § 1015, 18 U.S.C.A. § 596, relating to the allowance of bail. He also alleges that the amount involved, less interest and costs, exceeds $3,000.00, and prays for judgment in excess of the jurisdictional amount. He does not allege or rely upon diversity of citizenship.

The petition charges in substance that the defendants named entered into a conspiracy for the sole purpose of securing his indictment and conviction in the United States District Court of Colorado for violation of the Bankruptcy Act, and that such indictment and subsequent conviction, sentence, and imprisonment, were obtained by false testimony and with knowledge on the part of the appellees that the appellant was innocent of any offense whatsoever. It is also charged that after the return of the indictment, and on April 2, 1931, the appellant was arrested in San Francisco, California, and illegally imprisoned for twenty-four hours pending bail, which he was required to make at a cost of $200.00. That after his conviction in the court of defendant, Symes, prosecuted by the defendants Carr and Wingren, and upon the false testimony of the defendants Collins, Frazin and Johnson, he was by the defendant Symes committed to a psychopathic hospital at Denver, Colorado, without a sanity hearing, and deprived of his liberty without due process of law from December 29, 1932, until March 3, 1933. He prays for compensatory damages in the sum of $100,000.00, and exemplary damages in the sum of $100,000.00.

Beyond the bare allegation that the suit arises under the First, Fifth and Sixth Amendments of the Constitution, and 18 U.S.C.A. § 596, it is difficult to understand how, or in what manner, this suit arises under the Constitution or laws of the United States. Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), confers original jurisdiction on the district courts of the United States "where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * *, or (b) is between citizens of different States * * *."

The question of when a suit arises under the Constitution and laws of the United States, cognizable in its courts, absent diversity of citizenship, has a well defined meaning in our jurisprudence. To confer jurisdiction on the Federal court under this statute (Section 24(1) Judicial Code), a right or immunity created by the Constitution, or the laws of the United States, must be an element, and an essential one, of the plaintiff's cause of action. And the right or immunity asserted must be such that it will be supported if the Constitution and laws of the United States are given one construction and effect, and defeated if they receive another. Starin v. New York, 115 U.S. 248, 6 S.Ct. 28, 29 L.Ed. 388; First National Bank v. Williams, 252 U.S. 504, 40 S.Ct. 372, 64 L.Ed. 690; Smith v. Kansas City Title and Trust Company, 255 U.S. 180, 199, 41 S. Ct. 243, 65 L.Ed. 577; Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70; Gardner v. Schaffer, 8 Cir., 120 F.2d 840. It is said, "a suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends." Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L. Ed. 1205; Gully v. First National Bank, supra.

Clearly, the gravamen of the appellant's suit is one for malicious prosecution and false imprisonment. The cause of action which he attempts to assert arises from his alleged wrongful trial...