court, who, on March 4, 1955 sustained Robinson's motion to dismiss for want of jurisdiction.
Robinson's prime complaint is that Neal removed him from the District of Columbia to Pennsylvania at a time when the order dismissing his habeas corpus petition was not final because an appeal from that order had been filed. The affidavits strongly contradict this assertion in Robinson's complaint, but for the purposes of this motion it is accepted as true.
In the District of Columbia the Chief Judge of the District Court is charged with the performance of the executive duties involved in a requisition proceeding and may assign the matter to another judge of that court, D.C.Code Ann. §§ 23-401, 402. Judge Kirkland's order to the marshal to deliver Robinson into Neal's custody was executive, rather than judicial. It was comparable to the exercise of similar executive authority by a State governor in requisition proceedings. By statute Judge Kirkland was obliged to allow Robinson a reasonable time to apply for a writ of habeas corpus if he desired to test the legality of his arrest. D.C.Code Ann. § 23-401(c).
At the time Robinson was refused the writ he was in the custody of the marshal. Supreme Court Rule 45, 28 U.S.C.A. (then in effect) provided:
'1. Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed.'
Robinson's attorney, while failing to call this rule to Judge McGuire's attention, did request an order directing the marshall to retain custody of Robinson pending an appeal. Judge McGuire denied this request but made no order disturbing Robinson's custody. When the appeal was filed, therefore, the marshal lacked authority to release Robinson to Neal.
The statute relating to habeas corpus provides:
'A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained * * * by or under the authority of any State for any matter involved in the habeas corpus proceeding.
'* * * If no stay is granted, any such proceeding shall be as valid as if no habeas corpus proceedings or appeal were pending.' 62 Stat. 966, 58 U.S.C.A. § 2251.
No stay of proceeding was ever requested by Robinson or granted by any justice or judge. The Pennsylvania requisition proceeding, in which Neal was the State's agent, was not stayed, except to the collateral extent that, as a consequence of the appeal, the marshal was not authorized to deliver Robinson; but, no order prevented Neal from receiving Robinson and conveying him to Pennsylvania in conformity with the requisition proceeding which had not been stayed and which was, by the provisions of the statute, as valid as if no habeas corpus proceedings or appeal were pending.
Where, as here, Neal received custody of Robinson from the marshal in good faith, without knowledge or notice of the appeal, without Knowledge of the marshal's mistake and without connivance with the marshal, Neal is protected by his executive warrant and the executive order of Judge Kirkland which he was obliged to obey in the absence of any order or stay which restrained him from or relieved him of the necessity of so doing. Under the facts of this case the receipt and conveyance of Robinson to Pennsylvania by Neal impose upon Neal no liability for false imprisonment. Ravenscroft v. Casey, 2 Cir., 139 F.2d 776.
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