Clarke v. McDade, 165 U.S. 168 (1897)

165 U.S.
168
17 S.Ct. 284
41 L.Ed. 673
CLARKE
v.
McDADE (three cases). SAME v. MOTT et al (two cases).
Nos. 158 , 159, 165, 160, 161.
January 25, 1897.
Clara Shortridge Foltz and A. C. Searle, for plaintiff in error.

Mr. Justice PECKHAM delivered the opinion of the court.
The records in the above numbers, 158 and 159, relate to proceedings in habeas
corpus. Those records are printed. Nos. 161 and 165 also relate to proceedings
in habeas corpus. The records in those cases are not printed. No. 160 relates to
a writ of error in what is termed in the record an 'action.'
All the records now before us, both printed and unprinted, are such a mass of
confusion as to render it difficult to determine what has been done in the court
below. The records relating to the proceedings taken upon habeas corpus show
applications for that writ to various judges of the superior court of the city and
county of San Francisco, state of California. From a perusal of the series of
papers variously denominated 'orders,' 'objections,' 'demurrers,' 'motions to
vacate,' 'answers,' 'specifications of errors,' and 'petitions for reversal,' which
are mixed up in inextricable confusion, we are able to gather that the plaintiff in
error, Clarke, was proceeded against in the superior court of San Francisco as
an alleged insolvent, and that such court, after a hearing, adjudged that he was
insolvant; that he appealed from the adjudication, and his appeal was heard in
the supreme court of California, which court affirmed the adjudication, and
remitted the record to the superior court of San Francisco. 33 Pac. 884. These
facts are discovered from the perusal of a paper appearing to be an order signed
by one of the judges of the superior court, which shows that there had been an
appeal, and that the remittitur had come down to that court, affirming its
judgment adjudging Clarke an insolvent.
The order containing such recitals then directs the insolvent to file an inventory
of his property, and it is signed by one of the judges of the court. An appeal
was taken from the order, but no disposition of it appears to have been made, so
far as the record shows. He failed to obey the order by filing the inventory as
directed, and, an order to show cause why he should not be punished for
contempt having been made, he appeared and offered various objections to
such adjudication. He was finally adjudged guilty of the contempt charged, and
was committed to the jail in San Francisco until he should obey the order of the
court and file an inventory as directed. After his commitment to the jail he
commenced a series of proceedings, by habeas corpus, to obtain his release. It
is the decision of the judge rendered in each proceeding of which he complains.
He applied to one judge of the superior court after another for the writ which
was granted him, and when the writ was served, and the petitioner produced in
obedience to the writ, after a hearing the writ was discharged, and the petitioner
was remanded by the judge who granted the writ. This was repeated three or
four times before different judges, with the same result. He also applied to
Judge Morrow, United States district judge, for a writ of habeas corpus, and
that writ was applied for after he had applied to the state judge for the same
kind of a writ which had been allowed, but before a decision was given by the
state judge in that particular proceeding; and, upon a hearing before the state
judge upon the return of the writ sued out by himself, he objected that the judge
had no right to hear the case, as he had applied to a United States district judge
for a writ of habeas corpus, and that, under the provisions of sections 763 and
766 of the Revised Statutes of the United States, there was no power in the
state judge to proceed with the hearing upon a return of the writ.
It does not appear what, if any, action was taken by the federal judge on the
application for the habeas corpus, and it is upon the decisions made by the state
judges on these various applications for writs of habeas corpus that the
questions arise which plaintiff in error claims that this court has the jurisdiction
to decide.
All his objections to the proceedings are to be found in documents set forth in
the records, signed by himself, and which he describes as 'specifications of
error' and 'prayers for reversal.' In these specifications he sets up numerous
objections to the order adjudging him an insolvent, and to the order adjudging
him in contempt, and to the alleged refusal of the various judges to admit him
to bail pending an examination of his case under the writs issued. What these
various decisions were can only be determined from these specifications of
error, and other descriptions and allegations contained in affidavits and alleged
answers to petitions signed by the plaintiff in error.
He objects that the order adjudging him an insolvent, as well as various of the
other orders made by the court, were not signed by the clerk and sealed with
the seal of the court assuming to grant them; that they were not served by the
sheriff; that he was denied a trial by jury upon the question of insolvency, and
upon the question of contempt; that he was denied bail; and, generally. that the
fourteenth amendment was violated in his person, and that all of the various
orders were made in violation of the sections of the Revised Statutes (sections
1977, 763-766).
There is not one judgment of any court to be found in the record. There is a
statement in each of the records relating to the habeas corpus proceedings,
following the writ and return thereto, as follows: 'Court order, October 26,
1893. Writ dismissed. Prisoner remanded. Register 2 of departments 1 to 10,
page 249.'
In one of the records four petitions for writs of habeas corpus are contained,
one after the other, and no action shown in regard to any petition, excepting at
the end of the fourth there is a statement similar to that which is above set forth
as to the dismissal of the writ.
There is no record of any appeal being taken to any state appellate tribunal, or
of any review being had or attempted of the various so-called court orders
remanding the prisoner after a hearing upon the returns to the various writs, but
the writs of error from this court are directed to the judges of the superior court
of the city and county of San Francisco, and they have been allowed by one of
the judges of that court.
10
The fatal objection appears in each case that the so-called court orders, made
upon the returns to the several writs of habeas corpus which were granted by a
judge and returnable before him, do not constitute that final judgment or decree
in a suit in the highest court of a state in which a decision in the suit could be
had which may be reviewed on writ of error from this court, under section 709
of the Revised Statutes of the United States. If these various orders did
constitute such a final judgment, it does not appear in the record that any
question arose in such a manner as would give this court jurisdiction to review
the same under the above-named section.
11
A general statement that the decision of a court is against the constitutional

rights of the objecting party, or against the fourteenth amendment, or that it is
without due process of law, particularly when these objections appear only in
specifications of error, so called, will not raise a federal question, even where
the judgment is a final one within the section of the Revised Statutes above
mentioned. There must be at least some color of a federal question. Hamblin v.
Land Co., 147 U. S. 531, 13 Sup. Ct. 353.
12
In No. 160 of the above records, entitled C. W. Mott and others v. Alfred
Clarke, in the superior court of the city and county of San Francisco,
department 10, the record opens with what is termed 'Specifications of Error
and Prayer for Reversal,' in which it is stated that the action was commenced on
the 2d of October, 1891, by filing a petition in the court, and that on the same
day a mutilated portion of an attachment bond was filed in the same case, but
that the bond was never approved by the judge, and that on the 6th of October,
1891, the respondent, Alfred Clarke, filed and served an objection to the bond,
which objection is set forth. Then it is stated that no other bond was ever filed.
An order to show cause then follows, ordering Clarke to show cause why he
should not be adjudged an insolvent debtor, and restraining his transfer of any
property in the meantime. This order is signed by one of the judges of the
superior court. It would appear that the order was served on the respondent
personally, and after such service it was filed, and was not served upon him
after filing. The respondent thereafter objected to the jurisdiction of the court,
on the ground of absence of summons. The objection was overruled,
subsequent proceedings were had, and on May 18, 1892, the respondent was
adjudged an insolvent. The respondent claims that in the above proceedings he
has been deprived of liberty and property without due process of law, and
denied by the state the equal protection of the laws. He specifies the errors on
which he will rely:
13
'(1) That the judgment complained of is null and void for want of jurisdiction,
and the court never obtained jurisdiction of his person, and therefore he has not
been accorded due process of law.
14
'(2) That said judgment is made in violation of the fourteenth article, United
States constitution, and section 1979 of Revised Statutes of United States.
15
'Wherefore respondent prays that the said judgment may be reversed.
16
'This paper is made and filed nunc pro tunc as of May 10, 1894, by leave of
court, for good cause shown.
17
'[Signed] Alfred Clarke,
18
'Respondent and Plaintiff in Error.'
19
It is then stated that the foregoing bill of exceptions is allowed and

authenticated as and for the transcript on writ of error from the United States
supreme court to the superior court as provided by law. It is signed by a judge
of the superior court. Upon such a record a writ of error is allowed, and the
citation and return of the judges of the foregoing matters follows.
20
This is everything that is in the record. No pleadings, no judgment, other than

an allegation, in what is called a 'bill of exceptions,' of an adjudication in
insolvency, and the recital in such bill of objections taken of the character
above set forth; and from this proceeding in insolvency before one of the judges
of the superior court of San Francisco the plaintiff in error sues out a writ of
error from this court, and claims the right to review the proceedings (whatever
they were) of the superior court of San Francisco county. The same objection,
among others, applies to this that we have stated in regard to the other records.
21
There is no final judgment, such as is provided for in section 709 of the Revised
Statutes of the United States, and there does not appear to have arisen any
federal question whatever.
22
We have carefully looked through these entire records, notwithstanding the

mass of confusion which appears in all of them. We find nothing which shows
that we have jurisdiction in the cases, and for these reasons the vairous writs of
error must be dismissed.

Clarke v. McDade, 165 U.S. 168 (1897)

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165 U.S.

Clara Shortridge Foltz and A. C. Searle, for plaintiff in error.

A general statement that the decision of a court is against the constitutional

'Wherefore respondent prays that the said judgment may be reversed.

'[Signed] Alfred Clarke,

'Respondent and Plaintiff in Error.'

It is then stated that the foregoing bill of exceptions is allowed and

This is everything that is in the record. No pleadings, no judgment, other than

We have carefully looked through these entire records, notwithstanding the

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