Green v. Elbert

November 17, 1890, defendants in error filed a motion to dismiss, with which was united a motion to affirm, and a brief in support thereof, and gave notice to plaintiff in error that such motion would be submitted on the 15th day of December. On the 13th of December a lengthy affidavit of plaintiff in error was filed in the cause, stating that plaintiff 'is now and has been for many years past a member of the bar of the United States circuit court for the district of Colorado, and also a member of the bar of the supreme court of the United States;' that he had been attending to this suit in the circuit court and in the supreme court in person; that on or about the 5th day of May, 1887, (1888,) he caused the transcript of the record, the writ of error, citation, and bond, duly certified, to be forwarded to the clerk of the supreme court in accordance with a stipulation that the record and writs might be returned at any time during the October term, 1887, of the supreme court; and, 'as he now remembers and believes, that he requested the clerk of the supreme court, at the city of Washington, to file said record as soon as the same should reach him; and affiant further states that he has not now any remembrance or recollection of having neglected anything at all on his part which was necessary for him to do in order to have said record filed in the clerk's office of the supreme court of the United States as soon as the same reached the said clerk in the city of Washington;' that he resides more than 2,000 miles from the capital, and never has been and is not now familiar with the rules and customs of the clerk, and with the manner in which business is transacted by him in his office, and that, if he did not comply with all the requirements of the clerk with regard to the filing of the record, it was because he did not understand the same; and that he never has at any time knowingly and intentionally neglected anything whatever pertaining to the sending and filing of the record or the prosecution of the suit, but always intended to use all due diligence in having the record sent and filed, and in vigorously prosecuting his suit; that he has had no time or opportunity, living at the distance he does, and being compelled to prepare a brief and argument on the motion to dismiss, to investigate the reason why said record was not duly filed as soon as sent to the clerk; that, whatever may have been the reason, affiant has not intentionally in any manner neglected what the supposed and believed was necessary for him to do in order to have the record filed, and has no knowledge or information why it was not filed 'from early in May, 1887, [1888,] until the 13th day of January, 1890,' and that if the clerk had any good reason for not filing the record, or if affiant neglected anything that was necessary for him to do to secure it, this was the result of mistake and ignorance and not of intentional neglect or delay, and he does not believe himself to be in any manner to blame; that efe ndants in error made no effort to have the case dismissed until nearly one year after the record had been filed, and did not, during the time the record remained unfiled in the office, 'if there ever was any such time;' that for at least one year past affiant has been watching said case with great care and diligence, and had just forwarded a complete assignment of errors, and had said case prepared so far as he could prepare the same, at the time he received notice of the motion to dismiss, and was awaiting the usual time when the record in said case should be printed, and he could file his brief and argument, and be ready to submit the case as soon as reached on the docket; that he has several times attempted to get the attorney for the defendants in error to submit the case under rule 20, but said attorney has informed him that the defendants in error would not consent to anything of the kind, or agree to anything whatever that would speed the final hearing; 'that he supposed it was a matter of course, upon the return of the writ of error to the supreme court of the United States from a circuit court of the United States, that the clerk of the said supreme court would immediately, on such return of such writ, and a transcript of the record, together with the necessary citation and bond, all regularly prepared, at once docket said cause without further delay, or without anything more to be done on the part of affiant. Affiant does not now remember whether or not he sent to said clerk a docket fee, and affiant states that he may not at that time have known [or] regard [ed] it as absolutely necessary to do so before a record on the return of the writ of error would be filed in said office; but affiant states that, according to the best of his remembrance, he has sent the said clerk the said docket fee, and that he sent the same just so soon as he knew the amount thereof, and the said clerk demanded the same; and affiant further states that, if there was any delay whatever in this regard, it was not at all intentional on his part, and was a mere matter of mistake; and affiant further states that he does not now remember that there was any delay or any mistake made by him in sending said docket fee.' Affiant further says that he has prepared full and elaborate printed briefs, on the merits as well as on the motion, which he asks the court carefully to examine; and reiterates inadequacy of time to investigate the cause or reason why the record was not filed in the time required, if such was the case, as the motion 'does not state anything at all to explain why said record was not filed in that time, but simply states that the filing mark upon said record shows that the same was filed in the clerk's office on the 13th day of January, 1890.' 'Affiant further states that he has made this affidavit wholly from his remembrance of what he has done and intended to do touching the filing of said record, and from what he understands or did not understand in regard to such matters in the office of the clerk of the said supreme court, and, if anything in this affidavit should turn out not to be wholly correct, it is because affiant has not now and does not remember having had any information or knowledge to the contrary of what he has stated above in this affidavit.'

''T. A. Green, in pro. per.''

''Geo. A. King'', for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.