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Download "Descendants of Hans HUBER"
1 Descendants of Hans HUBER Generation 1 1. HANS 1 HUBER was born about 1588 in SWITZERLAND. Hans HUBER had the following child: 2. i. GEORG 2 HUBER was born in 1610 in SWITZERLAND. Generation 2 2. GEORG 2 HUBER (Hans 1 ) was born in 1610 in SWITZERLAND. Georg HUBER had the following child: 3. i. JOHANN HEINRICH 3 HUBER was born in 1644 in LENZBURG, SWITZ. (Oberkulm). He died in 1706 in ELLERSTADT in the PALANTINATE. He married MARIA MARGARETTA HOFFMAN. She was born in Generation 3 3. JOHANN HEINRICH 3 HUBER (Georg 2, Hans 1 ) was born in 1644 in LENZBURG, SWITZ. (Oberkulm). He died in 1706 in ELLERSTADT in the PALANTINATE. He married MARIA MARGARETTA HOFFMAN. She was born in Johann Heinrich HUBER and Maria Margaretta HOFFMAN had the following children: i. JOHANN (HANS) 4 HUBER was born on 23 Mar He died on 03 Dec 1727 in OGGERSHEIM, SWITZ.. 4. GREGOR JONAS HUBER was born on 06 Jul 1668 in LENZBURG, SWITZERLAND (Oberklum). He died on 23 Apr 1741 in ELLERSTADT in the PALANTINATE. He married Anna Maria KRUETZER about She was born about She died on 12 Apr 1756 in ELLERSTADT in the PALANTINATE. i MICHAEL HUBER was born on 03 Jun He died on 01 Feb 1721 in OGGERSHEIM, SWITZ.. Generation 4 4. GREGOR JONAS 4 HUBER (Johann Heinrich 3, Georg 2, Hans 1 ) was born on 06 Jul 1668 in LENZBURG, SWITZERLAND (Oberklum). He died on 23 Apr 1741 in ELLERSTADT in the PALANTINATE. He married Anna Maria KRUETZER about She was born about She died on 12 Apr 1756 in ELLERSTADT in the PALANTINATE. Gregor Jonas HUBER and Anna Maria KRUETZER had the following children: i. ANNA EVA 5 HUBER was born on 08 Oct 1699 in ELLERSTADT in the PALANTINATE. She died on 18 Dec 1701 in ELLERSTADT in the PALANTINATE. i JOHAN HEINRICH HUBER was born on 04 Mar 1702 in ELLERSTADT in the PALANTINATE. He died on 04 Jun 1703 in ELLERSTADT in the PALANTINATE. ANNA MARIA HUBER was born in 1703 in ELLERSTADT in the PALANTINATE. She died on 09 Jul She married Joh. KIESSLING in JOHANNES HUBER was born on 17 May 1704 in ELLERSTADT in the PALANTINATE. He died about He married MARIA HUBER*. v. JOH. MICHAEL HUBER was born on 20 Sep He married ANNA BARBARA HUBER*. vi. CHRISTIAN HUBER was born on 26 Feb 1710 in ELLERSTADT in the PALANTINATE. He died before v JOH. PAUL HUBER was born on 27 Mar vi ANNA ELIZABETH HUBER was born on 23 Jan She married JOH. ADAM BRAUN. 6. ix. ANDREAS (ANDREW HOOVER) HUBER was born on 29 Jan 1723 in ELLERSTADT, PHALZ, GER. He died in Aug 1783 in RANDOLPH CO, NC. He married Margaret Catherine PFAUTS, daughter of Jacob PFOUTZ and Marie Elizabeth PFOUTZ*, in 1745 in PENNSYLVANIA. She was born in 1725 in PENNSYLVANIA. She died in 1797 in RANDOLPH CO, NC.
2 Generation 5 5. JOHANNES 5 HUBER (Gregor Jonas 4, Johann Heinrich 3, Georg 2, Hans 1 ) was born on 17 May 1704 in ELLERSTADT in the PALANTINATE. He died about He married MARIA HUBER*. Johannes HUBER and Maria HUBER* had the following child: i. JACOB 6 HUBER. 6. ANDREAS (ANDREW HOOVER) 5 HUBER (Gregor Jonas 4, Johann Heinrich 3, Georg 2, Hans 1 ) was born on 29 Jan 1723 in ELLERSTADT, PHALZ, GER. He died in Aug 1783 in RANDOLPH CO, NC. He married Margaret Catherine PFAUTS, daughter of Jacob PFOUTZ and Marie Elizabeth PFOUTZ*, in 1745 in PENNSYLVANIA. She was born in 1725 in PENNSYLVANIA. She died in 1797 in RANDOLPH CO, NC. Andreas (Andrew Hoover) HUBER and Margaret Catherine PFAUTS had the following children: i. MARY 6 HOOVER was born about JONAS HOOVER was born in 1748 in CARROL CO, MD (Mirey Springs). He died on 15 Jun 1828 in RANDOLPH CO, NC. He married Rachael BRILES, daughter of Conrad BRILES and Margaret (Rouse) RUSH, about She was born about 1750 in CULPEPPER CO, VA. She died on 28 Jan 1843 in RANDOLPH CO, NC. i CATHERINE HOOVER was born about ELIZABETH HOOVER was born about She married DAVID FOUTS. 9. v. ANDREW HOOVER was born on 23 Sep 1752 in CARROLL CO, MD (Uniontown). He died on 29 Dec 1834 in WAYNE CO, IN (Richmond). He married ELIZABETH WAYMIRE. She was born on 12 Jul 1753 in Hannover, GER. She died on 04 Apr 1834 in WAYNE CO, IN (Richmond). 10. vi. JACOB HOOVER was born in 1753 in BAVARIA, GER. He died on 09 May 1821 in RANDOLPH CO, NC. He married Elizabeth STUTZMAN in She was born about 1758 in CHESTER CO, PA. She died on 28 Jul 1840 in BOONE CO, IN. 11. v DAVID HOOVER was born in 1757 in BAVARIA, GER. He died on 01 Jul He married MARY MAST. She was born in She died in vi JOHN HOOVER was born in 1760 in CARROLL CO, MD (Uniontown). He died on 18 Nov 1831 in ASHLAND CO, OH (West Milton). He married SARAH H. BURKHART. She was born in She died in Generation 6 7. JONAS 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in 1748 in CARROL CO, MD (Mirey Springs). He died on 15 Jun 1828 in RANDOLPH CO, NC. He married Rachael BRILES, daughter of Conrad BRILES and Margaret (Rouse) RUSH, about She was born about 1750 in CULPEPPER CO, VA. She died on 28 Jan 1843 in RANDOLPH CO, NC. Jonas HOOVER and Rachael BRILES had the following children: 13. i. JOHN M. 7 HOOVER was born in 1769 in RANDOLPH CO, NC. He died on 16 Feb 1851 in RANDOLPH CO, NC. He married (1) ELIZABETH MILICENT WINSLOW, daughter of Thomas WINSLOW, on 16 Oct 1799 in RANDOLPH CO, NC. She died on 27 Sep He married (2) RACHEL BRILES, daughter of John BRILES and Ann BECKERDITE, in She was born about ELIZABETH HOOVER was born in She died in She married VALENTINE FREDERICK WAYMIRE. 14. i MARY HOOVER was born about 1776 in RANDOLPH CO, NC. She died in She married Daniel WARREN on 04 Nov ANDREW HOOVER was born in 1780 in RANDOLPH CO, NC. He died in He married Catherine (Katie) Byerly in 1803 in RANDOLPH CO, NC. v. DAVID HOOVER was born about He married POLLY HOOVER*. vi. v REBECCA HANNAH HOOVER was born about 1784 in RANDOLPH CO, NC. She married SAMUEL HARDISTY. NANCY HOOVER was born in She married AARON MILLS.
3 Generation 6 (con't) 15. vi RACHAEL HOOVER was born on 01 Sep 1793 in RANDOLPH CO, NC. She died on 20 Mar 1871 in IOWA CO, IA (Wright). She married Miller DAVIS, son of Jesse Randall DAVIS and Elizabeth REYNOLDS, on 20 Mar 1811 in RANDOLPH CO, NC. He was born on 01 Dec 1789 in RANDOLPH CO, NC (Holly Spring). He died on 09 Nov 1865 in IOWA CO, IA. 8. ELIZABETH 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born about She married DAVID FOUTS. David FOUTS and Elizabeth HOOVER had the following children: i. JOHN 7 FOUTS was born in He died in MARY FOUTS was born in ANDREW 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born on 23 Sep 1752 in CARROLL CO, MD (Uniontown). He died on 29 Dec 1834 in WAYNE CO, IN (Richmond). He married ELIZABETH WAYMIRE. She was born on 12 Jul 1753 in Hannover, GER. She died on 04 Apr 1834 in WAYNE CO, IN (Richmond). Andrew HOOVER and Elizabeth WAYMIRE had the following children: i. MARY 7 HOOVER was born on 07 Mar 1777 in GUILFORD CO, NC. She died in She married NEWMAN. ELIZABETH HOOVER was born on 25 Dec 1778 in GUILFORD CO, NC. She died in She married BULLA. i DAVID HOOVER was born on 02 May 1781 in GUILFORD CO, NC. He died in FREDERICK HOOVER was born on 25 Sep 1783 in GUILFORD CO, NC. He died in v. SUSANNAH HOOVER was born in She died in She married WRIGHT. vi. HENRY HOOVER was born in He died in v REBECCA HOOVER was born in She died in She married JULIAN. vi ANDREW HOOVER was born on 26 Jun 1793 in RANDOLPH CO, NC. He died on 27 Aug 1868 in WAYNE CO, IN. He married Gulielma (Julie) RATCLIFF on 23 Oct 1812 in TIPPECANOE CO, IN. ix. CATHERINE HOOVER was born in She died in She married MCLAND. x. SARAH HOOVER was born in She died in She married SANDERS. 10. JACOB 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in 1753 in BAVARIA, GER. He died on 09 May 1821 in RANDOLPH CO, NC. He married Elizabeth STUTZMAN in She was born about 1758 in CHESTER CO, PA. She died on 28 Jul 1840 in BOONE CO, IN. Jacob HOOVER and Elizabeth STUTZMAN had the following children: i. JACOB 7 HOOVER was born in He died in DANIEL HOOVER was born in He died in i JOHN HOOVER was born in He died in DAVID HOOVER was born in He died in v. JOSEPH HOOVER was born in He died in vi. ELIZABETH HOOVER was born in She died in v MARY HOOVER was born in vi NANCY HOOVER was born in She died in ix. SAMUEL CLARK HOOVER was born in He died in x. ANDREW HOOVER was born in 1797 in RANDOLPH CO, NC. He died in 1839 in BOONE CO, IN. He married Nancy YORK on 06 Jan 1818 in NORTH CAROLINA.
4 Generation 6 (con't) BOONE CO, IN. He married Nancy YORK on 06 Jan 1818 in NORTH CAROLINA. She was born about DAVID 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in 1757 in BAVARIA, GER. He died on 01 Jul He married MARY MAST. She was born in She died in David HOOVER and Mary MAST had the following child: i. NANCY 7 HOOVER was born in She died in JOHN 6 HOOVER (Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in 1760 in CARROLL CO, MD (Uniontown). He died on 18 Nov 1831 in ASHLAND CO, OH (West Milton). He married SARAH H. BURKHART. She was born in She died in John HOOVER and Sarah H. BURKHART had the following children: i. JOHN 7 HOOVER JR. was born in He died in HENRY ISIAH HOOVER was born in He died in i CATHERINE HOOVER was born in She died in SUSANNA HOOVER was born in She died in v. ELIZABETH HOOVER was born in He died in vi. SOLOMON HOOVER was born in He died in v ABRAHAM HOOVER was born in He died in vi NOAH HOOVER was born in He died in ix. JESSE HOOVER was born in He died in He married REBECCA YOUNT. x. JOSEPH HOOVER was born in He died in Generation JOHN M. 7 HOOVER (Jonas 6, Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in 1769 in RANDOLPH CO, NC. He died on 16 Feb 1851 in RANDOLPH CO, NC. He married (1) ELIZABETH MILICENT WINSLOW, daughter of Thomas WINSLOW, on 16 Oct 1799 in RANDOLPH CO, NC. She died on 27 Sep He married (2) RACHEL BRILES, daughter of John BRILES and Ann BECKERDITE, in She was born about John M. HOOVER and Elizabeth Milicent WINSLOW had the following children: i. JONAS 8 HOOVER was born on 13 Jan 1802 in RANDOLPH CO, NC. He died on 16 Jan 1896 in MAHASKA CO, IA. He married MARY NEWBY. She was born on 18 Jan She died on 15 Jul i GULIA ELMA HOOVER was born on 22 Nov 1806 in RANDOLPH CO, NC. She died on 16 Apr 1873 in INDIANA. She married Stephen HINSHAW on 22 Nov 1826 in RANDOLPH CO, NC. He was born on 03 Jul 1803 in GUILFORD CO, NC. He died on 27 Nov THOMAS HOOVER. ANDREW HOOVER. 14. MARY 7 HOOVER (Jonas 6, Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born about 1776 in RANDOLPH CO, NC. She died in She married Daniel WARREN on 04 Nov Daniel WARREN and Mary HOOVER had the following children: i. RUTH 8 WARREN was born in She died in She married EZEKIEL CLAMPITT. RACHEL WARREN was born in She died in She married THOMAS MILLS. i WILLIAM STEWART WARREN was born in He died in He married RUTH B. CAREY. She was born in She died in ZINA WARREN was born in He died in He married ISABELLA THOMAS.
5 Generation 7 (con't) v. MARY ANN WARREN was born in She died in She married EDWIN HARVEY. He was born in He died in RACHAEL 7 HOOVER (Jonas 6, Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born on 01 Sep 1793 in RANDOLPH CO, NC. She died on 20 Mar 1871 in IOWA CO, IA (Wright). She married Miller DAVIS, son of Jesse Randall DAVIS and Elizabeth REYNOLDS, on 20 Mar 1811 in RANDOLPH CO, NC. He was born on 01 Dec 1789 in RANDOLPH CO, NC (Holly Spring). He died on 09 Nov 1865 in IOWA CO, IA. Miller DAVIS and Rachael HOOVER had the following children: i. MARY (POLLY) 8 DAVIS was born on 11 Aug 1811 in RANDOLPH CO, NC. She died on 29 May 1890 in POLK CO, IA (Polk City). She married John PHILLIPS on 15 Mar 1835 in PARKE CO, IN. He was born in 1810 in NORTH CAROLINA. He died after 1856 in res. POLK CO, IA (Madison). i ELIZABETH (BETSY) DAVIS was born in 1812 in RANDOLPH CO, NC. She died after 1880 in res. FULTON CO, IL (Liverpool). She married George HUFFMAN, son of John W. (Houghman) HUFFMAN and Mary (Bland) BLAKE, on 15 Feb 1835 in PARKE CO, IN. He was born in 1799 in OHIO. He died between in res. FULTON CO, IL (Putnam TWP). HANNAH (ANNA) DAVIS was born on 28 Feb 1815 in RANDOLPH CO, NC. She died on 25 Apr 1895 in MIAMI CO, KS (New Lancaster). She married (1) AMOS GRANT after He was born on 15 Aug 1807 in MAINE. He died on 06 Jun 1884 in MIAMI CO, KS (New Lancaster). She married (2) JAMES STANTON on 05 Jul 1832 in RANDOLPH CO, NC. He was born on 14 Oct 1808 in NORTH CAROLINA. He died on 07 Mar 1872 in MIAMI CO, KS (New Lancaster). ALICE MAY DAVIS was born on 15 Mar 1816 in RANDOLPH CO, NC. She died on 28 Jun 1860 in LYKINS CO, KS (Miami). She married Rev William Rollen HUFFMAN, son of John W. (Houghman) HUFFMAN and Mary (Bland) BLAKE, on 08 Jun 1837 in PARKE CO, IN. He was born on 15 Jul 1815 in BUTLER CO, OH. He died on 16 Sep 1900 in MIAMI CO, KS. v. EDMUND (EDWARD) DAVIS was born on 15 Mar 1816 in RANDOLPH CO, NC. He died on 24 Feb 1903 in JACKSON CO, OR. He married Harriet HUFFMAN, daughter of John W. (Houghman) HUFFMAN and Mary (Bland) BLAKE, on 25 Nov 1837 in PARKE CO, IN. She was born on 17 May 1821 in BUTLER CO, OH. She died on 29 Apr 1909 in JACKSON CO, OR. vi. ANDREW DAVIS was born on 18 May 1820 in RANDOLPH CO, NC. He died on 16 Apr 1891 in IOWA CO, IA (Victor). He married Catherine TEITSWORTH on 17 Feb 1841 in PARKE CO, IN. She was born on 12 Aug 1825 in OHIO. She died on 08 May 1912 in IOWA CO, IA (Victor). v vi DIANA DAVIS was born on 21 May 1822 in RANDOLPH CO, NC. She died on 08 Apr 1904 in LINN CO, IA (Marion). She married Charles Pennington LEONARD on 12 Sep 1844 in PARKE CO, IN. He was born on 08 Oct 1823 in PENNSYLVANIA. He died on 25 Apr 1913 in LONG BEACH, CA. LUCINDA DAVIS was born in 1824 in RANDOLPH CO, NC. She died after 1880 in res. JACKSON CO, OR (Eden). She married William JUSTICE, son of Daniel JUSTICE and Catherine BAUGH, on 14 Oct 1841 in PARKE CO, IN. He was born in 1817 in OHIO. He died after 1880 in res. JACKSON CO, OR (Eden). ix. CAROLINE DAVIS was born on 28 Jan 1826 in RANDOLPH CO, NC. She died on 09 Nov 1911 in LONG BEACH, CA. She married George Sutherland DOWNING, son of Abraham DOWNING and Anna SUTHERLAND, on 21 Jun 1846 in FULTON CO, IL. He was born on 19 Oct 1823 in WASHINGTON CO, IN. He died on 09 Feb 1901 in SALIDA, CO. x. REBECCA DAVIS was born on 27 Jul 1828 in RANDOLPH CO, NC. She died on 07 Nov 1904 in YORK CO, NE. She married Peter (David) HELLER, son of John Harrison HELLER and Belinda VAN AUKER, on 17 Oct 1847 in FULTON CO, IL. He was born on 08 Sep 1825 in MONTGOMERY CO, OH (Dayton). He died on 20 Oct 1911 in YORK CO, NE (Lerooy).
6 xi. x xi x xv. Generation 7 (con't) SUSANNAH A. DAVIS was born on 30 Dec 1830 in RANDOLPH CO, NC. She died after 1910 in MIAMI CO, KS. She married (1) DAVID SMITH, son of William SMITH and Sarah CLINE, on 09 Mar 1850 in FULTON CO, IL (Cass). He was born on 07 Apr 1830 in MONTGOMERY CO, OH (Richland). He died on 20 Sep 1881 in MIAMI CO, KS. She married (2) JAMES RILEY CLOUD in 1887 in KANSAS. He was born on 30 Oct He died in 1901 in MIAMI CO, KS (New Lancaster). JONAS DAVIS was born on 02 Feb 1833 in RANDOLPH CO, NC. He died on 17 Aug 1910 in GARFIELD CO, OK (Waukomis). He married (1) PERMELIA ELLEN CLOUD, daughter of Nathaniel CLOUD and Rebecca McCULLUM, on 20 Apr 1854 in JOHNSON CO, IA. She was born on 13 May 1833 in HIGHLAND CO, OH. She died on 31 Oct 1881 in OTTAWA CO, KS. He married (2) JULIA ANN TREADWELL on 24 Oct 1882 in OTTAWA CO, KS. She was born on 04 Nov 1863 in KANSAS. She died on 07 Dec 1909 in GARFIELD CO, OK (Waukomis). RACHEL DAVIS was born on 28 Feb 1835 in PARKE CO, IN. She died on 19 Mar 1918 in OTTAWA CO, KS. She married David BROWN on 18 Mar 1856 in JOHNSON CO, IA. He was born on 15 Jan 1833 in CRAWFORD CO, PA. He died on 23 Mar 1905 in OTTAWA CO, KS. MARTHA DAVIS was born on 16 Apr 1839 in PARKE CO, IN. She died on 29 Oct 1904 in MIAMI CO, KS. She married Gabriel Huffman PATTEN, son of Elias PATTEN and Mary HUFFMAN, on 16 Aug 1858 in IOWA CO, IA. He was born on 03 Feb 1834 in PARKE CO, IN. He died on 09 Oct 1915 in MIAMI CO, KS. WILLIAM DAVIS was born in 1841 in PARKE CO, IN. He died on 13 Mar 1853 in JOHNSON CO, IA (Monroe) (Buried in Castek Cemetery). 16. JESSE 7 HOOVER (John 6, Andreas (Andrew Hoover) 5 HUBER, Gregor Jonas 4 HUBER, Johann Heinrich 3 HUBER, Georg 2 HUBER, Hans 1 HUBER) was born in He died in He married REBECCA YOUNT. Jesse HOOVER and Rebecca YOUNT had the following child: i. ELI 8 HOOVER. He married MARY DAVIS.

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§ 254-1 Operation on public property prohibited.
§ 254-3 Operation on private property prohibited without owner's permission.
§ 254-4 Careless, reckless or negligent operation prohibited.
§ 254-5 Registration of vehicles.
§ 254-7 Violations and penalties.
Adoption of police ordinances — See N.J.S.A. 40:69A-29.
It shall be unlawful for any person to operate any type of unlicensed motor-driven vehicle or conveyance, including but not limited to snowmobiles, two-wheel motor vehicles known as "minibikes," trail motorcycles, motor scooters and four-wheel motor vehicles, commonly known as "go-carts," upon any public property or Township-owned land in the Township of Cedar Grove, New Jersey.
Includes, but shall not be limited to, all parks, recreation areas, ball parks, parking areas, fire access roads, sidewalk area, Board of Education property and any and all other Township or publicly owned land and premises.
The operation of said motor-driven vehicles, as defined in § 254-1, is also prohibited upon private property, except property of the operator, unless the operator of said motor-driven vehicle has in his possession a written authorization from the owner of said property to operate said vehicle on his property.
It shall be unlawful to operate any unlicensed motor-driven vehicles, as defined in § 254-1, in a careless, reckless or negligent manner so as to endanger the safety of any person or the property of any person.
The owner of such an unlicensed motor vehicle shall annually, between March 15 and May 1, register said vehicle with the Police Department and obtain a registration certificate which shall be maintained with the vehicle at all times. The annual registration fee of $5 shall be made payable to the Police Department. Nothing herein contained shall in any way be deemed an assumption of responsibility by the Township for the proper operation or mechanical condition of the unlicensed vehicle.
It shall not be unlawful for any employee of this Township to operate motor-driven vehicles, as defined in § 254-1, for the purpose of maintaining, repairing or doing any public works within the scope of his employment.
Any person who violates the provisions of this chapter shall, upon conviction thereof, be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding 90 days, or both. A separate offense shall be deemed committed on each day during or on which a violation occurs or continues.


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THE PEOPLE, Plaintiff and Respondent, v. JOE L. BEVERLY, Defendant and Appellant.
Joe L. Beverly, in pro. per., and John Alden Doty, under appointment by the District Court of Appeal, for Defendant and Appellant.
Stanley Mosk, Attorney General, Albert W. Harris, Jr., and Edward P. O'Brien, Deputy Attorneys General, for Plaintiff and Respondent.
The evidence supportive of the jury's verdict is as follows: On the evening of November 15, 1962, defendant, upon returning [233 Cal. App. 2d 707] to his apartment, found his wife, Anne, her girl friend, Betty Green, and a neighbor, Gordon Tolliver, in the living room. Shortly thereafter they were joined by Gene Knox, James Wilson and Kenneth Boyd. Anne had brought these guests together for a card game. Defendant requested several times that Anne come into the bedroom. Upon her refusal an argument ensued between Anne and defendant, whereupon the latter picked up a coke bottle and slammed it against her face. Boyd remonstrated that defendant should not hit his wife Defendant replied that Anne was his wife and that he could do anything he wanted to. Defendant left the apartment but returned several minutes later. He then slipped off his jacket, produced a knife and moved towards his wife who darted behind Boyd. Angry words were exchanged. Anne refused to move from behind Boyd until defendant ceased threatening her with the knife. Defendant then folded the knife and placed it in a pocket of his trousers. While this altercation was in progress Wilson had gravitated toward the outside door and was urging Boyd to leave and not to become involved in a family quarrel. As Boyd turned around to walk out the door, defendant opened the knife, ran behind Boyd and twice rammed the knife in his back. Boyd subsequently died at a hospital from an internal hemorrhage due to the infliction of the two stab wounds in his back. After the stabbing defendant reappeared in the apartment clutching the knife. Only Anne and her girl friend were then present. Defendant told them he had stabbed Boyd because he did not appreciate Boyd's telling him what to do. Several hours later defendant notified the police that he had stabbed a man earlier that evening, and he was thereupon placed under arrest. A police officer searched defendant's jacket and discovered a knife in the lining. Defendant admitted that it was the knife used in the stabbing. He again admitted stabbing Boyd at the police station and when he was subsequently interrogated by Police Inspector Asdrubale.
Defendant took the stand in his own defense and testified substantially as follows: On the night in question he had asked Boyd, Knox and Wilson to leave the apartment; an argument ensued with his wife and he slapped her; Boyd jumped up from the couch, brandished a knife, moved toward defendant, and invited him outside to fight; defendant then called the police; he next went into the kitchen, grabbed a knife and returned to the living room; a 10-minute argument ensued, after which defendant and Boyd started to leave; [233 Cal. App. 2d 708] defendant, however, changed his mind and refused to fight, but as he turned from the doorway, he thought Boyd was preparing to stab him so he plunged his knife into Boyd's back; he then ran out the door and continued to struggle with Knox and Wilson; however, when he observed a gun he hurried back into the apartment; he subsequently left the premises and was later arrested. Defendant also testified relative to an incident which occurred at the house of Betty Green two weeks before the subject altercation as follows: That he went to the Green residence to visit his wife and children; that his wife and Boyd were there playing cards together; that he upbraided his wife for playing cards in the children's presence and invited her downstairs to talk; that Boyd told Anne that she could refuse to go with defendant; that as defendant made reply to Boyd's remark the latter produced a knife and challenged him to a fight; and that he refused to fight Boyd.
Adverting to the instant case, we first set forth the facts pertinent to defendant's claim. Several hours after the knifing of Boyd defendant telephoned the police and spoke to Officer Driscoll. Defendant identified himself as Joe Beverly and stated, as testified by Driscoll, that "he believed that he was wanted by the Police." Driscoll, who was attached to Headquarters Communications, testified that at the time he received this call he "knew of the case" and knew that the police were looking for a Joe Beverly, as he had received a teletype concerning such a person which he was about to read over the radio. fn. 1 Driscoll testified that he therefore recognized the name of Joe Beverly and asked the telephone caller "why he believed he was wanted by the Police Department"; that the caller responded he had stabbed a man earlier in the evening, and when asked by Driscoll why he had stabbed this man replied as follows: That he and his wife were separated; that he went to his wife's home to deliver checks for child support payments; that he found a man in his house whom he had found there on a previous occasion and who, on that occasion, had pulled a knife on him; that consequently when he found this man in his home once again, he went directly into the kitchen, armed himself with a knife, and then ordered the man to leave; and that when the man didn't leave he stabbed him. Driscoll then asked the caller where he was, [233 Cal. App. 2d 710] and upon being told, wrote it on a note and gave it to another officer who relayed the information over the radio to a police unit in the area. Driscoll then engaged defendant in a general conversation about his children until the telephone conversation was interrupted by a police officer who stated he had defendant in custody.
Defendant was taken in custody in the business office of a gas station by Officer Roberts. As Roberts entered the office defendant stated to him, " 'I'll be with you in a minute. I'm talking to the police.' " He continued talking and then handed Roberts the receiver, stating " 'Here, the policeman wants to talk to you.' " Roberts testified that he spoke to Driscoll and that when he hung up the telephone he "asked the defendant Beverly if he had been involved in an altercation that evening, where he had cut a man with a knife," and that defendant replied that "he had been involved in an altercation." When queried by Roberts as to what he had done with the knife, defendant pointed to a tool box in the office. In the tool box Roberts found a knife in a leather case and, in addition, an empty leather case. Roberts asked defendant where the knife belonging to the empty case was, defendant responding that he didn't know. Roberts noted a jacket lying on a chair and inquired of defendant if it was his. Defendant replied that it was, whereupon Roberts searched the jacket and found a knife identical to that in the tool case. Roberts then asked defendant "if this was the knife that he had used to cut the party with on that evening" to which defendant replied that it was.
Defendant was then removed from the gas station to the district police station where another conversation took place between Roberts and defendant in the presence of Officer Gray. With respect to this conversation Roberts testified that he "asked the defendant what the circumstances were involving his becoming involved in the cutting where he had stabbed a man with a knife"; that defendant stated that while he was visiting his wife, "four guys" tried to gain admission into the house; that one of them named Boyd asked him to step out; that he went back into the kitchen and secured the knife which Roberts had retrieved from his coat; and that as he was going out of the door Boyd pushed him and he at this time "hit him [Boyd] with the knife. ..." Defendant was thereafter turned over to the custody of Inspector Asdrubale.
The tape recording consisted of questions by Asdrubale and answers by defendant. In response to Asdrubale's questioning defendant stated that he had visited his estranged wife's residence; that several persons were present including Boyd; that he and his wife had an argument whereupon he struck her in the face with a bottle; that Boyd then came at him with a knife, stating that defendant should fight him rather than his wife; that defendant then went into the kitchen and obtained a knife; fn. 3 that he put the knife in his pocket and went back into the living room; that Boyd used vile language and again invited him to fight; that Boyd didn't know he had a knife; that he asked Boyd to leave; that he removed the knife from his pocket and opened it, at which time his wife ran behind Boyd for protection; that Boyd then put his knife away; that defendant then closed his knife; that he then telephoned the police and asked Boyd and three of his companions to leave; that Boyd invited him outside to fight; that he was behind Boyd as the latter was going outside the door with a knife in his hand; that as Boyd was going out of the door defendant "stabbed him in the back" twice; that he stabbed him because he was angry and because he believed that Boyd and his companions would "do me in" when he got outside; [233 Cal. App. 2d 712] that Boyd and the other men ran out; that when defendant got outside one of the other men stated he was going to shoot him; that he believed that the man had a gun; that one of the men threw "something" at him; that he chased the men and they ran away; that he then went back into the house but left because his wife asked him to go and also because his wife told him the police were coming; that he walked around the general area; that someone fired a shot at him; that he returned to the house to get some keys; that no one was there; that he then caught a bus and went to the home of Stephanie Ann Hughes; that her sister opened the door and he stated to her "I killed a guy awhile ago"; that he then told Stephanie that he had "killed a guy ... knifed him"; that he also told her he had shot a man, but was only "playing around" when he made this statement; that he showed her the knife; that when she stated she didn't believe him because there was no blood on the knife, he stated "I did stab a guy" and "I have a good feelin' I'm goin' to jail"; that he went to the gas station where he was employed and called the police, telling them that "I cut a guy; the guy was going to jump on me, so I stabbed him."
In Dorado, it was held that the improper introduction into evidence of a confession which has been obtained in violation of the constitutional right to counsel results in a denial of due process and that accordingly the error is necessarily prejudicial so as to preclude the application of the harmless error rule.  Dorado does, however, contain the following statement: "Although under some circumstances the introduction into evidence of statements obtained from a defendant during police interrogation in violation of his right to counsel and his right to remain silent may constitute harmless [233 Cal. App. 2d 714] error, we are convinced that the error is necessarily prejudicial when the statements are confessions." (P. 356; emphasis added.) We interpret this statement to mean that in the case of admissions the harmless error rule announced in People v. Watson, 46 Cal. 2d 818, 835-838 [299 P.2d 243], and applied with due regard to the provisions of article VI, section 4 1/2, of the California Constitution, is applicable.
Turning to the facts of the present case once again, we find that defendant made four separate statements to the police: One to Officer Driscoll, two to Officer Roberts, and one to Inspector Asdrubale. fn. 4 Defendant was not informed by the police of his right to counsel or of his right to remain silent prior to the making of these statements. Accordingly, we must now analyze each of these statements in the light of the Dorado rule, and, where pertinent, with regard to the foregoing principles applicable to confessions and admissions.
 With respect to the incriminatory statements made to Driscoll, regardless of whether they amounted to a confession or were, instead, admissions of material facts, we are convinced that they were not obtained in violation of the Dorado rule. Although it may be inferred that at the time defendant made these statements the investigation had begun to focus on him--since Driscoll knew that the police were looking for a person named Joe Beverly--he was neither under arrest nor in custody at this time. Nor can it be said that Driscoll was carrying out "a process of interrogations that lends itself to eliciting incriminating statements."  As stated in Stewart, in deciding whether such an interrogation has taken place the determination must be made upon the objective evidence and upon an analysis of "the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances." (P. 579.) In the present case there is nothing in the record to show that Driscoll knew any of the circumstances of the crime charged except that a Joe Beverly was wanted by the police. That Driscoll was not carrying out the "process of interrogations" delineated in Dorado and Stewart is apparent from the nature of his questions and particularly from his inquiry of defendant as to [233 Cal. App. 2d 715] why he believed he was wanted by the police.  It is plain, moreover, that an interrogation over the telephone in connection with a call initiated by defendant himself is not the "process of interrogations" delineated and defined in Dorado and Stewart. Accordingly, we have an absence of the two conditions prescribed by Stewart which give rise to the accusatory or critical stage entitling the suspect to counsel, that is, an arrest and the " 'process of interrogations that lends itself to eliciting incriminating statements.' " (P. 577.) The subject statements fall, in our opinion, into the category of unsolicited statements obtained without coercion. Such statements were held in Dorado to be admissible and not proscribed by the rule announced therein.
The statements made later by defendant to Roberts at the district station were made under circumstances similar to those described in Konigsberg. At this time Roberts asked defendant "what the circumstances were involving his becoming involved in the cutting where he had stabbed a man with a knife." This interrogation was not per se indicative of a purpose to elicit a confession. Its tenor was equally consistent with the purpose of obtaining defendant's side of the story, which explanation defendant proceeded to give. Under the circumstances and in the light of the test described by Stewart the subject interrogation did not amount to "a process of interrogations that lends itself to eliciting incriminating statements." Assuming arguendo, that the accusatory or critical stage had been reached when Roberts asked this question, the statements made by defendant did not amount to a confession so as to make the error prejudicial per se. The statements did not constitute an admission of guilt but were statements of [233 Cal. App. 2d 717] justification and excuse, which, if true, might support the plea of self-defense. Thus, the incriminating statements were, at worst, an admission of material facts. Whether the error in admitting them was prejudicial depends upon our analysis of the entire case under the rule announced in Dorado, an analysis we shall hereinafter make.
When the tape recording of defendant's statements to Asdrubale was played before the jury, the jurors were each handed a transcript of the recording to assist them in following it. The tape recording was admitted in evidence but the transcripts were only marked for identification. After the jurors had retired to the jury room to deliberate they requested several exhibits, including the tape recording and the transcripts. Counsel for defendant stated to the court that he preferred to have the transcripts of the tape recording go into the jury room rather than the tape recording itself, because it would consume much time to listen to the entire tape. Defense counsel then stipulated that the transcripts which had been previously marked for identification only could be admitted into evidence subject to the same objections he had made during the trial to the tape recording. fn. 7 It was also stipulated [233 Cal. App. 2d 718] by defendant's counsel that the transcripts could be taken into the jury room.
[15b] In the case at bench, the evidence relative to defendant's bigamous relationship does not come within any of the excepted categories of the general rule. Therefore, it was error to admit this evidence. The People argue that the challenged evidence was admitted to show defendant's intent, that is, that he acted with malice aforethought. This argument is without merit because there was no connection between the bigamy and the alleged murder which would make the evidence relevant to show intent.  In addition, in order to draw the inference that a defendant had the requisite intent to commit the charged crime from the fact that he committed a collateral uncharged offense at another time, there must be a showing of similarity of circumstances between the two crimes. Otherwise, proof of the collateral offense serves no purpose other than to show the disposition of the defendant to commit crimes. (People v. Burns, 109 Cal. App. 2d 524, 536-537 [241 P.2d 308, 242 P.2d 9]; People v. Nazzaro, 223 Cal. App. 2d 375, 379 [35 Cal. Rptr. 879]; People v. MacEwing, 216 Cal. App. 2d 33, 48-49 [30 Cal. Rptr. 476].) [15c] In this case the prosecution made no attempt to show similarity of circumstances between the crimes, and the statement in the People's brief that such evidence was admissible to show [233 Cal. App. 2d 721] intent, unsupported by authority or logic, cannot be sustained.
 It is the constitutional obligation of an appellate court to declare a miscarriage of justice "only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal. 2d 818, 836; Cal. Const., art. VI, § 4 1/2.) Upon an examination of the record in this case we conclude that it cannot be said that there was a miscarriage of justice, since it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. The record points emphatically to defendant's guilt. His version of the occurrence is opposed by the abundant testimony of four eyewitnesses. In addition, the record properly contains the admissions which defendant made in his statement over the telephone to Driscoll to the effect that defendant stabbed Boyd, as well as his statements to Roberts at the gas station.
[10b, 11b] Although we are of the opinion that defendant's statements to Roberts at the district station that he stabbed Boyd were properly admitted in evidence, assuming arguendo, that it was error to admit them, such error was harmless. These statements, as well as the erroneously admitted statements made to Asdrubale, are exculpatory in nature. These statements may be regarded as a justification or excuse for the stabbing since they expressly negatived that defendant's conduct was accompanied by criminal intent. They amount to an acknowledgment of the stabbing accompanied by a claim that the homicide was committed in self- defense. This is the exact theory upon which defendant based his defense at the trial and upon which he sought to justify the killing when he became a witness in his own behalf. The statements made to Roberts and Asdrubale were reiterative of the claim which defendant persisted in from the time he telephoned to [233 Cal. App. 2d 723] the police, and throughout the trial--a claim voluntarily and spontaneously injected into the case by defendant himself.
These statements, moreover, would tend to overcome any implication that defendant's statements to Driscoll and those made to Roberts at the gas station, which we have held were properly admitted, were confessions. Under the circumstances, therefore, we fail to see that defendant was prejudiced by the admission in evidence of the admissions obtained in violation of the Dorado rule.
Sullivan, P. J., and Bray, J., fn. * concurred.
FN 1. The record does not indicate the contents of the teletype message.
FN 2. Motions to suppress the tape recording and to strike its contents on the respective ground of deprivation of due process and that the "confession" was "illegally obtained," were denied by the trial court after a voir dire relative to the circumstances under which the interrogation was conducted and the statement obtained. The voir dire disclosed that defendant was interrogated after a sleepless night, was given no food, and was not told that the interrogation was being taped. Excepting for the due process implications of the Dorado rule, no issue is raised on this appeal, nor is any claim of error made, as to the manner and method in which the interrogation was conducted.
FN 3. Defendant was shown a knife by Asdrubale which defendant identified as the knife he had obtained in the kitchen.
FN 4. The record discloses that defendant also made a statement to Asdrubale while en route to the Hall of Justice. Asdrubale did not testify as to the nature of the statements, but merely referred to it as a "cursory interrogation" stating "he went through the thing. ... He jumped all over the place. ..."
FN 6. Many of Asdrubale's questions were made in an accusatory manner and on occasion he stated to defendant that he did not believe defendant was telling the truth.
FN 7. It follows from our earlier discussion that since these transcripts were made from a tape recording which was erroneously admitted into evidence under Dorado, they too were improperly put before the jury on this basis. This error, however, is subject to the same prejudicial error rule as is applicable to the admission into evidence of the tape recording itself. Accordingly, the propriety of the use by the jury of the transcripts hinges on our determination of whether under the Watson rule the admission of defendant's statements to Asdrubale constituted harmless or prejudicial error.
FN 8. "Mr. Maurer: [The Prosecutor] Didn't you marry her? The Witness: I think this should be objected to. I am not in on this case. That shouldn't be in here at this time. Mr. Davis: [Counsel for defendant] I object as incompetent and irrelevant at this time. The Court: Objection overruled. Answer the question. The Witness: No, not exactly. ... Q. Didn't you marry her in January of last year? A. Marry her? Q. Yes, sir. A. Not legally; any time you stay with anybody in the State of California more than six months it's married, you know, but it's not legally married. Q. Well, you have children by her? A. Yes, I do. Mr. Davis: I am going to object to this entire line of questioning on the grounds it's beyond the scope of direct examination. The Court: The objection is overruled. I think it has been explored. Mr. Davis: Further on the grounds it's incompetent, irrelevant and immaterial. The Court: Objection is overruled. I think it's been explored sufficiently, Mr. Maurer. Mr. Maurer: All right, Your Honor."
FN 9. In its argument to the jury the prosecution stated: "Now, Mr. Davis, at numerous times in his argument to you kept referring to his home as his castle, that the witnesses who were there, the male witnesses who were there, were trespassers, that he was defending his home. What home? What castle? Mr. Beverly apparently has two castles. Which one was he defending? Was he there where he had no right to be? All of the witnesses testified, when he makes the complaint to his wife, 'Well, you don't live here; you have no right to complain.' Isn't that what the testimony was? He is married to Ann Beverly. He has children by her. He is married to Stephanie Beverly, he has children by her. She lives at 1181 Pierce. She tells Inspector Asdrubale she lives at 2404 Bush, around the corner. He has got three castles."
FN 10. The prosecutor also made reference to the fact that defendant was not supporting his children. Over objection he was permitted to indulge in the following cross-examination: "Q. You are supporting these children that you speak about, Mr. Beverly? A. Yes, I am. Q. They are on Welfare, aren't they? ... The Witness: I did give her the money and she doesn't report it. That's her fault."
FN 11. It should be here pointed out that this error is predicated on the ground of irrelevancy. Although the bigamy evidence was part of a statement which was made under the circumstances proscribed by Dorado, the admission of such evidence was not violative of the Dorado rule because it was not a confession of a crime with which defendant was charged in the instant case, nor an admission of a material fact or facts tending toward proof of the guilt of such crime; rather it was a confession or admission of another offense.
FN 12. Defense counsel asked for a recess in order that he might read the transcript of the tape recording to determine if there were "any conclusions or statements that I feel are objectionable. ..."

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The Supreme Court recently sounded the death knell for patent litigation in the Eastern District of Texas, overruling the Federal Circuit’s interpretation of 28 U.S.C. § 1400(b) and dramatically reducing forum shopping in patent cases. In TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court overturned nearly thirty years of Federal Circuit case law that permitted plaintiffs to file patent lawsuits wherever a defendant would be subject to personal jurisdiction. The Court held that under 28 U.S.C. § 1400(b) “a domestic corporation ‘resides’ only in its State of incorporation.” This will significantly reduce the filings in the Eastern District of Texas but may increase the number of filings in jurisdictions such as California or Delaware, where many corporations are incorporated.
Copyright Venue – § 1400(a). Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found. Patent Venue – § 1400(b). Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.
The logic of the Supreme Court’s restrictive interpretation of the term “resides” in §1400(b) would seem to apply equally to that same term in §1400(a) , although there is room for some argument given the Court’s careful observation that it was simply applying its past precedent and was not asked to reconsider the correctness of that past precedent. Even if the term “resides” is interpreted narrowly, the other provisions of the copyright statute would prevent any dramatic restriction in copyright venue.
Unlike the patent statute, the copyright statute examines the location of both the defendant and its agent, which provides an opportunity for broader venue.
While TC Heartland signals a dramatic shift in venue for patent cases, it does not portend a similarly dramatic shift for copyright cases.


Trimarco v. Data Treasury Corp.
MICHAEL TRIMARCO, Plaintiff, v. DATA TREASURY CORPORATION (an instrumentality under the control and dominion of Shephard Lane); SHEPHARD LANE; JONATHAN BRACKEN; SCOTT MOLLEN; JOHN CIARELLI; RICHARD B. FRIEDMAN; LINDA MARGOLIN; KEITH DELUCIA; CLAUDIO BALLARD; KENNETH BAYNE; SANDY FLIDERMAN; MAURICE FREEDMAN, Agents or Attorneys for Data Treasury Corporation; HON. EMILY PINES, Justice, New York Supreme Court, Suffolk County; MICHAEL KRYSYNSKY, Clerk, New York Supreme Court, Suffolk County; JOHN DOE Professional Liability Insurance Carrier(s) (a), (b), (c), (d) and (e) representing each Attorney Defendant. Defendants.
Plaintiff Michael Trimarco, proceeding pro se, commenced this action on May 22, 2014. Trimarco has paid the requisite filing fee to bring this action. For the reasons that follow, the Court dismisses the claims against Justice Emily Pines and her law clerk, Michael Krysynsky.
Trimarco sued Data Treasury Corporation ("DTC"), Index No. 03/30324, in the Supreme Court of New York, Suffolk County, which resulted in a 41-day trial before Justice Pines. (Compl. ¶¶ 2, 100, 126.) In the state court proceeding, Trimarco brought a breach of contract claim against DTC for DTC's alleged failure to honor his stock option agreement. (Id. ¶ 100.) After trial, Trimarco's claim was dismissed. (Id. ¶ 104.) Trimarco subsequently filed this action, generally alleging that defendants "obtain[ed] a fraudulent verdict in DTC's favor in their defense against Plaintiff Michael Trimarco's prior law suit." (Id. ¶ 2.) Several of the defendants in the instant action were involved in Trimarco's state court action, including DTC, employees of DTC, DTC's attorneys, Justice Pines, and her principal law clerk, Michael Krysynsky. (Id. ¶¶ 22-50.) Trimarco asserts claims under 42 U.S.C. § 1983; the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§1961 et seq.; and N.Y. Judicial Law § 487.
The Court acknowledges that because Trimarco is proceeding pro se, his complaint is held to less stringent standards than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A district court nonetheless has the inherent authority to dismiss a case, sua sponte, if it determines that the action is frivolous or the court lacks jurisdiction over the matter, regardless of whether the plaintiff has paid a filing fee. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000); Fed. R. Civ. P. 12(h)(3). A case is "'frivolous' when 'it is clear that the defendants are immune from suit.'" Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
Trimarco's claims against Justice Pines and her law clerk are frivolous because it is clear that they are immune from suit. It is well settled that judges have absolute immunity for judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 9-11 (1991); Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). This immunity extends to "certain others who perform functions closely associated with the judicial process." Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see Oliva v. Heller, 839 F.2d 37, 40 (2d Cir. 1988) (finding that law clerk "who was clearly assisting the judge in carrying out judicial functions, was covered by the doctrine of absolute immunity"). Notably, judicial immunity cannot be overcome by allegations of bad faith or malice. Tucker v. Outwater, 118 F.3d 930, 932 (2d Cir. 1997). Rather, judicial immunity is "overcome only when (1) the action is nonjudicial, i.e., not taken in the judge's judicial capacity; or (2) the action, although judicial in nature, is performed in the complete absence of any jurisdiction." Miller v. Cnty. of Nassau, 467 F. Supp. 2d 308, 312 (E.D.N.Y. 2006) (citing Mireles, 502 U.S. at 11-12).
Here, Trimarco's allegations against Justice Pines and her law clerk are based solely on acts performed in a judicial capacity in connection with Trimarco's state court action. (See, e.g., Compl. ¶ 47 (alleging that "a number of Justice Pines['] decisions and rulings regarding the Trimarco Options case are suspicious"); id. ¶ 50 (alleging that "[a] number of Defendant Kruzynski's [sic] actions and comments, ex parte communications with opposing counsel, and contributions to Justice Pines' jurisprudence in relation to the Trimarco Options [case] are suspicious").) Even to the extent Trimarco alleges that Justice Pines presided over the trial despite having a conflict of interest, (id. ¶¶ 141-46), this is not sufficient to overcome judicial immunity. See Zahl v. Kosovsky, No. 08-CV-8308 (LTS)(THK), 2011 WL 779784, at *9 (S.D.N.Y. Mar. 3, 2011) (rejecting argument that judge was not entitled to judicial immunity when she failed to recuse herself for an alleged conflict of interest). Accordingly, Trimarco's claims against Justice Pines and her law clerk are foreclosed by absolute judicial immunity.


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The deed of an Indian, who has received a patent of land providing that it should never be sold or conveyed by the patentee or his heirs without the consent of the Secretary of the Interior, is void, and the statutes of limitation do not run against the Indian or his heirs so long as the condition of incompetency remains; but where it appeared that, by treaty subsequent to the deed, all restrictions upon the sales of land by incompetent Indians or their heirs were removed, it was held that from this time, the statute of limitations began to run against the grantor and his heirs.
Even if Indians, while maintaining their tribal relations, are not chargeable with laches or failure to assert their claims within the time prescribed by the statutes, they lose their immunity when their relations with their tribe are dissolved and they are declared to be citizens of the United States.
A deed, valid upon its face, made by one having title to the land and containing the usual covenants of warranty, when received by one purchasing the land in good faith, with no actual notice of a defect in the title of the grantor, constitutes color of title, and in Kansas, possession without a paper title seems to be sufficient to enable the possessor to set up the statute of limitations.
The fact that the Secretary of the Interior might thereafter declare the deed to be void does not ipso facto prevent the statute from running.
This was an action of ejectment brought in the Court of Common Pleas of Wyandotte County, Kansas, by John Schrimpscher and about forty others, heirs of one Carey Rodgers, deceased, a Wyandotte Indian, against John S. Stockton and ten others, to recover a tract of land which had been allotted to certain Wyandotte Indians under the treaty of 1855.
Answers were filed by three of the defendants, containing general denials of the allegations of the petition, and pleas both of a three-year and a fifteen-year state statute of limitations.
To these answers plaintiffs filed a reply to the effect that the ancestor of the plaintiffs, from whom they derived title by descent, was an incompetent Indian, and classed as such under the treaty between the United States and the Wyandotte tribe of Indians, concluded January 31, 1855, and, as such incompetent, was prohibited from alienating any of the lands in controversy, except only the power to lease the same for the term of two years; that defendants and those under whom they claim were bound by the same prohibition, and could have acquired nothing further than such leasehold interest in the land; that defendants occupied such lands in subordination to the rights of plaintiffs' ancestor, and that no notice had ever been brought home to plaintiffs of an adverse claim by defendants.
A jury having been waived and the case submitted to the court, judgment was rendered for the defendants. An appeal was taken to the supreme court of the state, which affirmed the judgment of the lower court. 58 Kan. 758. Whereupon plaintiffs sued out a writ of error from this Court.
This case turns upon the proper construction of article XV of a treaty with a number of tribes of Indians, including "certain Wyandottes," concluded February 23, 1867, and proclaimed October 14, 1868. 15 Stat. 513, 517.
"the said lands shall be subdivided, assigned, and reconveyed by a patent, in fee simple, in the manner hereinafter provided for, to the individuals and members of the Wyandotte Nation, in severalty."
"which lists shall exhibit, separately, first those families, the heads of which the commissioners, after due inquiry and consideration, shall be satisfied are sufficiently intelligent, competent, and prudent to control and manage their affairs and interests, and also all persons without families; second, those families, the heads of which are not competent and proper persons to be entrusted with their shares of the money payable under this agreement; and, third, those who are orphans, idiots, or insane."
"but to those not so competent the patents shall contain an express condition that the lands are not to be sold or alienated for a period of five years, and not then, without the express consent of the President of the United States first being obtained,"
Margaret C. Cherloe was a Wyandotte Indian of the competent class, and as such she was given, under the treaty of 1855, allotment No. 42, to 64 acres of the land originally sued for, and received a patent therefor in fee simple, without restriction as to conveyance. This patent was dated June 1, 1859.
After the issue of such patent, and prior to August 31, 1863, Margaret C. Cherloe died intestate, leaving her grandson, Carey Rodgers, as her only heir at law, and on August 31, 1863, the said Carey Rodgers made a deed in fee simple of the land so inherited to Jesse Cooper and Mary E. Stockton.
"That the said tract shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior for the time being, and with the further and express condition, as specified in the fourth article of the Treaty with the Wyandottes of the 31st of January, 1855, that the lands are not to be sold or alienated for a period of five years."
On November 15, 1864, the said Carey Rodgers executed a deed in fee simple of this last-mentioned land to Jesse Cooper and Mary E. Stockton, covenanting that the was seised in fee simple, and had good right to sell the same.
On February 25, 1869, by a partition of that date by Jesse Cooper and his wife and Mary E. Stockton and her husband, there was conveyed to Mary E. Stockton the lands sued for in this action and described in the petition. Defendants took title from her.
The said Carey Rodgers died intestate in December, 1867 at the age of twenty-one.
had and held open, undisturbed, and adverse possession of all of said lands, claiming title thereto, paid all taxes, cleared the land of timber, and cultivated the same as tenants.
In the years 1891 and 1892, there was a kind of occupancy of part of the land by persons claiming under the plaintiffs, but that does not seem to have been treated as material.
Carey Rodgers thus became possessed of two tracts of land, one of 64 acres as the heir at law of his grandmother Margaret C. Cherloe, and the other of 57 acres as a personal allotment to himself. As plaintiffs state that a settlement of the case has been made so far as relates to the Cherloe tract, we shall dismiss that tract from our opinion. The deed of Carey Rodgers' own allotment of November 15, 1864, was clearly void, since as to this contract, at least, he was incompetent, and took under a patent which provided that the land should never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior. If the case stood upon defendants' rights under this deed alone, there could be no doubt whatever that Rodgers' heirs were entitled to the land.
to all such cases, and upon a full examination of such report, and hearing of the parties interested, the said Secretary may confirm the said sales, or require an additional amount to be paid, or declare such sales entirely void, as the very right of the several cases may require."
1. It removes all restrictions upon the sales of lands patented to incompetent Wyandottes, which should thereafter be made.
2. It provides that no sales of lands theretofore assigned to incompetents shall be made under any legal proceedings, or for taxes, until voluntarily sold by the patentee or his heirs, with the approval of the Secretary of the Interior.
3. That as to lands theretofore sold by incompetents in violation of the treaty of 1855, a thorough examination and report shall be made under the directions of the Secretary of the Interior in order to ascertain the facts relating to such cases, and upon examination of such report and a hearing of the parties, the Secretary may confirm such sales, require an additional amount to be paid, or declare the sales void.
No action was ever taken under the third clause to procure a confirmation by the Secretary of the Interior of the deed by Rodgers of November 15, 1864, so that at the time the treaty of 1868 was ratified, the possession of the lands was in the defendants or their grantors holding adversely to the heirs of Rodgers, but the title still remained in such heirs by reason of the fact that his deed to Cooper and Stockton was void, and no proceeding had been taken under the third clause of article XV to confirm or validate it. But although the treaty of 1855 and the patent to Rodgers had expressly provided that there should be no alienation by the grantee or his heirs, the treaty of 1868, which took effect after his death, removed all restrictions upon alienations which should thereafter be made, either by the incompetent grantee Rodgers or his heirs, who thereafter held an alienable title, and were bound to assert such title within the time specified by the statute of limitations, although no title could be gained by adverse possession so long as the land continued to be inalienable by Rodgers and his heirs. McGannon v. Straightlege, 32 Kan. 524; Sheldon v. Donohue, 40 Kan. 346.
Their disability terminated with the ratification of the treaty of 1868. The heirs might then have executed a valid deed of the land, and possessing, as they did, an unencumbered title in fee simple, they were chargeable with the same diligence in beginning an action for their recovery as other persons having title to lands; in other words, they were bound to assert their claims within the period limited by law. This they did not do under any view of the statute (whether the limitation be three or fifteen years), since it began to run at the date of the treaty, 1868, and the action was not brought until 1894, a period of over twenty years.
Plaintiffs, however, seek to avoid the effect of the statute by insisting, first, that statutes of limitations do not run against Indians; second, that defendants were not in possession under color of title, and therefore the statute is not available to them; third, that no title by limitation could be acquired as against the right of the Secretary of the Interior to investigate and declare the conveyance in question to be void, and hence the statute would not begin to run until after such action by the Secretary.
the said Wyandotte Indians, and each and every of them, except as hereinafter provided, shall be deemed and are hereby declared to be citizens of the United States, to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States and of the Territory of Kansas in the same manner as other citizens of said territory, and the jurisdiction of the United States and of said territory shall be extended over the Wyandotte country in the same manner as over other parts of said territory."
There was an immaterial exception not necessary to be noticed here.
"a portion of the Wyandottes, parties to the treaty of 1885, although taking lands in severalty, have sold said lands, and are still poor, and have not been compelled to become citizens, but have remained without clearly recognized organization, while others who did become citizens are unfitted for the responsibilities of citizenship, and . . . have just claims against the government, which will enable the portion of their people herein referred to to begin a new a tribal existence,"
therefore it was agreed by article thirteen that the United States would set apart for the Wyandottes certain land ceded by the Senecas in order to provide for these Indians, and would make a register of all who declared their desire to be and remain Indians in a tribal condition, who should thereafter constitute the tribe.
It is sufficient to say of this that it could not apply to Carey Rodgers personally, since he died before the treaty was ratified, and there is no evidence that his heirs ever elected to resume their tribal relations and to become again members of the incompetent class. As article XV removed all restrictions upon the sale of lands by incompetents if the heirs of Carey Rodgers took the position that the article did not apply to them, they assumed the burden of proving that fact.
"The courts . . . have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been whether there was an apparent or colorable title, under which an entry or a claim has been made in good faith."
See also Beaver v. Taylor, 1 Wall. 637; Cameron v. United States, 148 U. S. 301, 148 U. S. 307. There was no evidence in this case, except from the patent, that the grantees even knew that Rodgers was an Indian, as was the case in Taylor v. Brown, 5 Dak. 344, much less that he belonged to the incompetent class, and they apparently received the deed, as many people do, without a careful examination of the grantor's title. In Kansas, possession without paper title seems to be sufficient. Gilmore v. Norton, 10 Kan. 491; Anderson v. Burnham, 52 Kan. 454.
the court in this case. Livingston v. Peru Iron Co., 9 Wend. 511.
3. That no title could be acquired against the right of the Secretary to declare the deed void, and hence the statute would not begin to run until after such action by the Secretary of the Interior. The case of Gibson v. Chouteau, 13 Wall. 92, 80 U. S. 99, is relied upon to sustain this proposition. In that case, it was held that the occupation of lands derived from the United States under a new Madrid certificate, before the issue of a patent, for the period prescribed by the state statute of limitations, was not a bar to an action in ejectment for the possession of such lands, founded upon the legal title subsequently conveyed by the patent, nor did such occupation constitute a sufficient equity in favor of the occupant to control the legal title thus subsequently conveyed. Obviously this case has no application to the one under consideration. Here, the United States had issued a patent to Rodgers "and to his heirs and assigns forever," subject to a condition not that the title should ever revert to the United States, but that he should not alienate the lands without the consent of the Secretary of the Interior. The government thus passed all its title to the land in fee simple, and a violation of the condition of the patent would not redound to the benefit of the United States or enable it to repossess the lands, but was simply intended to protect the grantee himself against his own improvident acts, and to declare that the title should remain in him notwithstanding any alienation that he might make.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA dissented.

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