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In re GREEN.


No number. Submitted October 15, 1891. – Decided October 19, 1891.

A writ of mandamus does not lie from this court to the judges of the Su

preme Court of a State, directing them to restore to office an attorney and counsellor whom that court had disbarred, and to vacate the order of disbarment.

This was a petition for leave to file an application for a writ of mandamus. The averments in the petition, upon which the prayer was founded, are sufficiently set forth in the opinion of the court.

Mr. B.W. Perkins, on behalf of the petitioner, presented the petition, together with a brief by him in support of it.

MR. JUSTICE Field delivered the opinion of the court.

It appears from the petition of the applicant, which he asks leave to file, that he has been disbarred from the practice of law as an attorney and counsellor in the courts of Colorado by order of the Supreme Court of that State, and he prays for


Opinion of the Court.

a writ of mandamus from this court commanding the judges of that court to restore him to his office and to vacate the order of disbarment.

The ground of the disbarment, as shown by the petition and the opinion of the Supreme Court of Colorado, to which it refers, was vituperative and denunciatory language used by the applicant in the pleadings in a suit brought in the Circuit Court of the United States respecting the conduct of a judge of the Superior Court of the city of Denver, Colorado, in certain proceedings had before him, and respecting the conduct of counsel therein, amounting to charges of corruption and bribery on their part in that suit, which the Supreme Court of the State found to be unwarranted by any evidence and prompted by the malice of the applicant. That court, so far as the charges against the judge of the Superior Court were concerned, evidently proceeded upon the opinion that the obligation of attorneys and counsellors imposed upon them from their office was, among other things, to observe at all times, both in their manner and language, the respect due to courts of justice and judicial officers; and that insulting and defamatory language, prompted by malice, respecting their conduct in court, was a breach of that obligation, for which they could properly be disbarred. It declared that the attorney's privilege does not permit him to enter the courts and spread upon the judicial records charges of a shocking and felonious character against brother attorneys, and against judges engaged in the administration of justice, upon mere rumors coupled with facts which should of themselves create no suspicion of official corruption in a just and fair mind. The applicant affirms that the order of disbarment was unwarranted, arbitrary, tyrannical and oppressive, and asks the interposition of this court by mandamus for his relief.

We cannot give him the aid he seeks by that writ, whatever may be the ground upon which the state court proceeded, and in whatever light its action may be regarded. A writ of mandamus can only be issued from this court in aid of its appellate jurisdiction, except in a few enumerated cases, not embracing the one before us. The Judiciary Act of 1789,

Statement of the Case.

adopted at the first session of Congress, after declaring that the Supreme Court should have appellate jurisdiction from the Circuit Courts and courts of the several States, in certain cases, provided that it should have power to issue writs of mandamus in cases, warranted by the principles and usages of law, "to any courts appointed, or persons holding office, under the authority of the United States.” And the Revised Statutes ($ 688) reënacted this provision in a modified form, without removing the limitation as to the courts to which and the officers to whom it may issue. If the applicant has any remedy in this court for his alleged grievance, upon which we express no opinion, it must be sought in another way.

Motion denied.

MR. JUSTICE GRAY was absent at the time of the submission and decision of this case.



No. 1324. Submitted October 13, 1891. – Decided October 26, 1891.

Whether a person holding the office of, receiver can be held responsible for

the acts of his predecessor in the same office is not a Federal question,

but a question of general law. A receiver of a railroad, appointed by a Federal court, is not entitled under

the act of March 3, 1887, c. 373, § 3, 24 Stat. 552, 554, to immunity from suit for acts done by his predecessor, without previous permission given

by that court. An adverse judgment of a state court, upon the claim of a receiver ap

pointed by a Federal court, of immunity from suit without leave of the

appointing court first obtained is subject to review in this court. Actions will lie by and against a receiver for causes of action accruing

under his predecessor in office.

This was a motion to dismiss a writ of error, or affirm the judgment of the court below upon the following state of facts:

Argument against the Motion.

In July, 1887, Locbridge, the defendant in error, began two suits in the Circuit Court of Christian County, Illinois, against McNulta, the plaintiff in error, as receiver of the Wabash, St. Louis and Pacific Railway Company, to recover damages for the death of James and Mary E. Molohon, alleged to have been occasioned by the negligent management of an engine at a public crossing. At the time the cause of action arose Thomas M. Cooley was receiver of the road under an order made by the Circuit Court of the United States for the Southern District of Illinois, in a suit to foreclose a mortgage upon the road. Judge Cooley having resigned his receivership, plaintiff in error, John McNulta, was appointed his successor, and was in possession of and operating the road at the time the suits were brought. Demurrers were interposed to the declarations, and overruled, and the suits were subsequently consolidated by agreement of parties, tried, and a verdict rendered in favor of the plaintiff for six thousand dollars. This judgment was subsequently affirmed by the Appellate Court of the Third District, and again by the Supreme Court of the State. Defendant thereupon sued out this writ and assigned as error, first, that the Supreme Court erred in holding that, under the act of Congress above cited, the plaintiff was entitled to maintain the action, when it appeared from the record that McNulta was not the receiver when the cause of action accrued ; and second, in holding that, under said act, McNulta could be sued as receiver with respect to any act or transaction which occurred before his appointment, without previous leave of the court of the United States by which he was appointed. Defendant in error thereupon moved to dismiss upon the ground that no Federal question was involved.

Jr. James W. Patton for the motion.

Mr. George B. Burnett and Jr. Wells II. Blodgett opposing.

The learned counsel for defendant in error says that we seem to take the view that the right to sue the receiver depends upon this act of Congress, but that in this respect we are

Opinion of the Court.

mistaken: - that long before the existence of that statute it was held that a receiver was liable in his official capacity for injuries caused by the negligence of his employés, and that he is amenable to the same rules of liability that apply to the corporation of which he is receiver, while it was operating the road.

Assuming this to be true, it was always an essential prerequisite to the bringing of a suit against a receiver, that leave should first be obtained of the court appointing the receiver to bring the action, as the authorities cited by counsel show. True, it may be said plaintiff in error was exempt from suit, without leave of the court appointing him, before the passage of the act of Congress; but while that act, as we contend, permitted suits to be brought against a receiver without leave of the court appointing him “respecting any act or transaction” of the receiver sued, it in terms preserved that immunity from suit to a receiver whose "act or transaction” was not the cause of the injury complained of, and the Supreme Court of Illinois having construed the act of Congress, and having denied to plaintiff in error the immunity claimed under that act, the correctness of that decision is a proper subject of review in this court.

MR. JUSTICE Brown, after stating the case as above reported, delivered the opinion of the court.

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The substance of the first assignment of error is that under the act of March 3, 1887, plaintiff was not entitled to maintain a suit against McNulta, as receiver, for a cause of action which accrued when the road was in possession of and operated by a former receiver. This is clearly not a Federal question, but a question of general law, viz. : whether one person holding the office of receiver can be held responsible for the acts of his predecessor in the same office. The substance of the second assignment is that the Supreme Court of Illinois erred in holding that such suit could be maintained against the present receiver for the acts of his predecessor without the previous leave of the court appointing him.

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