Prologue — Brady v. Beams

: Office - Supreme Gourt, U. 3.

APR 19 1943

CHARLES ELmede cue |

No.868 __

AMUN UTR

In the

Suprome(ourtofthe United States

October Term 1942

DORA BRADY AND LUCINDA WATASHE, Petitioners,

VERSUS

ANNIE BEAMS, ET AL., Respondents.

Answer to Petition for Writ of Certiorari.

JOSEPH C. STONE, D. A. RICHARDSON,

W. T. ANGLIN, L. O. LYTLE,

ALFRED STEVENSON, GEORGE JENNINGS,

DICK JONES, HERBERT G. HOUSE,

E. W. SMITH, ROSCOE S. CATE,

CHARLES A, MOON, HARRY B. PARRIS,

FRANCIS STEWART, WILBUR J. HOLLEMAN,

LEON C. PHILLIPS, J. GARFIELD BUELL,

HOWELL PARKS,

Attorneys for Respondents.

AAMT

SUBJECT INDEX.

SS EG ASR EE EEN ER Ey rie eee Te PERO

Brief and argument:

Ze

Respondents contend that the petition for writ of

certiorari and supporting brief should be treated as self-

denying for failure to comply with Rule 38, paragraph 2,

which requires clarity and brevity.............+.4- nine

II.

The petition for writ of certiorari does not state any

suflicient ground for issuance of the writ..............

III.

The district court did not err in taking judicial no-

tice of its own records in the original case. But had it

erred, the error would have no importance here, because

the appellate court had its own records before it, which

were the same as those of the trial court.............-.

avs

The complaint presents a mere (fatally defective)

bill of review or pretended action of that nature.

It was necessary to procure leave of the United

States Cireuit Court of Appeals before filing in the dis-

triet court.

Bills of review, particularly those upon the ground

of newly discovered evidence, are not favored by the

courts. Their allowance rests upon sound judicial dis-

cretion, to be exercised cautiously and sparingly.

The motion to dismiss or to strike was a proper

Ne ee err rr re lr er eer ry.

6

PES, PM GS EMR Te

PRR RGSS ILE ERM RL IES

INDEX—ContTInvueEp.

PAGE

Vv

It is respectfully submitted that speedy end should

be made to the false, scandalous and contemptuous

charges against the district court and the judge thereof,

and appropriate discipline of appellants and their coun-

sel of record seems to be required............-2 00.05. 10

AUTHORITIES.

Alexander v. Hillman, 296 U.S. 222, 80 L. ed. 192....... 3

Brady v. Beams, 132 F’. (2d) 965... 1... ccc sce cccesens 1,2

Continental Oil Co. v. Osage Oil & Refining Co. (10th

eS se: | eer oy eee mere 9

Continental Oil Co. v. Osage Oil & Refining Co. (10th

oo Re fe. SE Pe Pprerecrrrrc rrr er fore 9

De Bearnv. Safe Deposit & Trust Co., 233 U.S. 24, 58 L.

nr Aenea ate earene ur ann tng nt eM a lee SED 7

Divide Creek Irrigation Dist. v. Hollingsworth (10th

CD, Fas Cee Se a aden Kibo hea Sock Ke RE 7

Durant v. Storrow, 11 Otto 555, 25 L. ed. 961........... 9

Freshman v. Atkins, 269 U. 8. 121, 46 S. Ct. 41, 70 L. ed.

ree ae ay area et ety Warner ee Fee oh 7

Hagerott v. Adams (8th Cir.), 61 F. (2d) 35............ 9

Hanna vy. Brictson Mfg. Co., 62 F. (2d) 189............. 3

In re: Gamewell Telephone Co. (Ast Cir.), 73 Fed. 908... 9

Irvin v. Buick Motor Co. (8th Cir.), 88 F. (2d) 947...... H)

John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 66 L.

BE Sao aR ce Kan Ado Rewnve ke beueek ouee 9

Kithcart v. Metropolitan Life Ins. Co. (8th Cir.), 88 F

(2d) 407, and cases there cited...............005. 7

Morse v. Lewis (4th Cir.), 54 F. (2d) 1027............. 7

National Brake Co. v. Christensen, 254 U. S. 425, 65 L.

SS SA OURS eas knees hdc ade eee eee 9

INDEX—Concuunep.

PAGE

National Fire Ins. Co. vy. Thompson, 281 U. §. 331, 74 L.

WE Se etaccived eda cies 7

Obear-Nester Glass Co. y. Hartford-Empire Co. (8th

sits Se fate nce: Be ee 9

Scott v. Beams, (10 Cir.), 122 F. (2d) 777, certiorari de-

nied, 315 U. S. 809, 62 S. Ct. 795, 86 L. ed. 1209, re-

hearing denied 315 U. S. 830, 62 S. Ct. 912, 86 L. ed.

hgh UGE EE oe ERE a oe nen 1,2

Simonds v. Norwich Union Indemnity Co. (8th Cir.), 73

F. (2d) 412

Society of Shakers y. Watson (6th Cir.), 77 Fed. 512.... 9

Southard v. Russell, 16 How. O47, 14 L. ed. 1052........ 9

POA Mem AE len Se 9,10

Suren v. Oceanic 8. §. Co. (9th Cir.), 85 F. (2d) 324..... 7

Toledo Scale Co. v. Computing Scale Co., 261 U. 8. 399,

Wierse v. United States, 252 Fed. 435

_— REECE ER ASG RNS Mae 2 NOEL SE OME AT

In the Suprome Court of the United States

No. 868 — October Term, 1942.

DORA BRADY AND LUCINDA WATASHE, Petitioners,

vs.

ANNIE BEAMS, ET AL., Respondents.

ANSWER BRIEF TO THE PETITION FOR WRIT OF

CERTIORARI.

Statement.

‘“‘This case is an epilogue to Scott v. Beams, 10

Cir., 122 F. 2d 777, certiorari denied, 315 U. S. 809, 62

S. Ct. 795, 86 L. ed. 1209, rehearing denied, 315 U. S.

830, 62 S. Ct. 912, 86 L. ed. 1224.’’ (Excerpt from opin-

ion in Brady v. Beams, 132 F. (2d) 985.)

For the true facts please see the decisions of the United

States Cireuit Court of Appeals for the Tenth Circuit in

Scott v. Beams, and in Brady v. Beams. The facts here com-

plained about were at issue in Scott v. Beams and were there

determined in favor of the Respondents and against the

Petitioners. The substance of petitioners’ attack is found

in the charge that the trial judge in the original case, to-

gether with Annie Beams, et al., the successful parties, and

their attorneys of record, and C. W. Miller, Assistant U. 8.

Attorney for the Eastern District of Oklahoma, had an un-

derstanding before the trial whereby it was agreed that if

the Secretary of the Interior approved the Family Settle-

Proms

“ Brapy, ET AL. v. BEAMS, ET AL.

ment Agreement entered into by Annie Beams and others,

judgment would be rendered, regardless of what might be

shown at the trial, in favor of the parties to the settlement

and against all other claimants to the large estate involved,

in number about eight hundred. And it is claimed that judg-

ment was entered in accordance with said alleged under-

standing.

The only evidence invoked in support of this charge

was the following: Whilst considering the Family Settle-

ment Agreement the Secretary of the Interior sought the

advice of the Attorney General, who then requested C. W.

Miller to inquire of the trial judge as to whether or not he

would regard the approval of the settlement agreement as

contemptuous. The trial judge answered this query in the

negative. Thereupon Mr. Miller reported to the Attorney

General by letter.

All these matters were pleaded, heard and determined

in the original case. All the pleadings and all the evidence

with respect to these matters were considered and deter-

mined against petitioners in Scott v. Beams, and again in

Brady v. Beams. The decisions of the Cireuit Court of Ap-

peals with reference to these points appear in the main in

Scott v. Beams, 122 F. (2d) at pages 788, 789, and in Brady

v. Beams, 132 F. (2d) at page 988.

Petitioners made the same contentions in the Supreme

Court in their petition for writ of certiorari and supporting

brief in Dora Brady, et al. v. Annie Beams, et al., No. 829,

October Term, 1941. When this Court denied the petition

for the writ, petitioners again made the same contentions in

their petition for rehearing.

This case, No. 782-Civil, was commenced and has been

prosecuted as a continuation of the original case No, 4556-

Equity in the United States District Court for the Eastern

oa, — AROSE +A BCA NS RUBRAS EO

passa

ANSWER TO Petition For Writ or Cerrrorart. 3

District of Oklahoma, which was an action primarily for the

purpose of determining the heirs of Jackson Barnett, de-

ceased, who was a restricted Creek Indian. Instead of serv-

ice in ordinary manner, notice was served upon some of the

attorneys for respondents, which notice recited that the

procedure was under the authority of Hanna y. Brictson

Mfg. Co., 62 F. (2d) 139, and the cases there cited. The

Hanna case holds, as announced in the 12th paragraph of its

head notes:

‘*Cause of action to set aside decree held continu-

ation of original suit in which decree was entered,

therefore service of subpoena within state on parties

to original suit was not necessary.’”’

In this connection respondents call attenion to Alexander y.

Hillman, 296 U.S. 222, 80 L. ed. 192, where it was said:

‘The ancillary bill is not an original bill for the

commencement of a suit. That it was not so intended

is shown by the fact that process was not prayed or

issued.”’

Petitioners contend that cause No. 782-Civil is a new

independent action upon the ground of extrinsie fraud dis-

covered after their appeal in Scott v. Beams ras lodged in

the appellate court. Respondents moved to dismiss, or in

the alternative to strike, petitioners’ complaint in the new

case. (Petitioners’ appendix, Case No. 868, pp. 19, 20.) The

grounds alleged in support of the motion to dismiss in brief

ire these: (7) The complaint presents only a pretended bill

of review or a pretended action in the nature of a bill of

review, and same was filed without leave of the appellate

court whose judgment is under attack; (2) The complaint

is inexcusably scandalous, scurrilous, and clearly vexatious,

and constitutes contempt of court; (3) The complaint does

lot state any claim against the defendants upon which any

4

et

:

4

PRATT eA EE NNN OME LD OE SMELT INS ND AG III I ab IY SPE! GO EIRENE Soa

4 Brapy, ET AL. v. BEAMS, ET AL.

relief can be granted; (4) Inexcusable delay and laches are

shown; (5) The complaint affirmatively shows upon its face

that all the matters and things sought to be presented again

were fully and finally adjudicated against Dora Brady and

Lucinda Watashe in the original case.

Respondents presented to the district court the entire

record in the original case, and the trial court took notice of

these records. In fact this entire record in the original case

went to the Circuit Court of Appeals, and from there to the

Supreme Court, with the petition of Dora Brady and Lau-

cinda Watashe for writ of certiorari. The records of which

the district court took judicial notice were precisely the

same as the records which went to the Circuit Court of Ap-

peals and to the Supreme Court.

Respondents contend that the plea of former adjudica-

tion goes only to the petitioners’ want of right to maintain

the new action, and supports respondents’ claim that the

new bill was properly dismissed because it presents only a

pretended bill of review or pretended action in the nature

of a bill of review. The district court considered the first

and fifth grounds for dismissal together, rather than sepa-

rately, and so recited in its judgment of dismissal. The dis-

missal was upon the theory that the court should protect the

successful parties from a re-trial of the issues already tried

and determined, and arrest in limine the attempt to cireum-

vent its own judgment, affirmed by the Circuit Court of Ap-

peals. The decision of the Cireuit Court of Appeals in

Brady v. Beams is upon the same theory.

The bill of complaint in the new ease and the petition

for writ of certiorari and supporting brief abound in mis-

statements of fact such as the following: It is falsely al-

leged that Dora Brady and Lucinda Watashe and their

counsel did not discover the facts about the conference

ANSWER T0 Petition For Writ or Cerriorart. 5

which Mr. Miller had with the trial judge, or the Miller

letter to the Attorney General, until after petitioners had

lodged their appeal from the judgment in the original cases,

in the appellate court. In fact the evidence in full with re-

spect to these matters was heard in due course in the district

court trial and made part of the record which was taken to

the Circuit Court of Appeals. If there is any difference be-

tween petitioners’ bill in the original case and their bill in

cause No. 868, it consists only in this false statement, which

respondents contend should be disregarded.

The Cireuit Court of Appeals did not hold, as claimed

by petitioners, that the district court erred in taking judicial

notice of its own records. It is not true, as asserted by pe-

titioners, that the Cireuit Court of Appeals held that the

new bill does not present a bill of review or action of that

nature. It is not true, as asserted by petitioners, that the

Cireuit Court of Appeals held the judgment of dismissal

erroneous. In fact, there was no holding by the appellate

court that the district court erred in any respect. It is true

that the appellate court turned its decision largely upon the

proposition that all the matters sought to be tried again

were fully heard and adjudicated in the original ease.

It is not true, as contended by petitioners, that the re-

spondents orally or otherwise abandoned parts of their con-

tentions.

HCN 1

Ms Bem TELE ETS

6 Brapy, ET AL. v. BEAMS, ET AL.

BRIEF and ARGUMENT.

\

Respondents contend that the petition for writ of cer-

tiorari and supporting brief should be treated as self-deny-

ing for failure to comply with Rule 38, paragraph 2, which

requires clarity and brevity.

The petition for the writ consists of 53 long typewritten

pages. The appendix, made a part of the petition, consists

of 114 long typewritten pages, making a total of 167 pages.

Bs

The petition for writ of certiorari does not state any

sufficient ground for issuance of the writ.

There is no constitutional question involved or other

matter presented on account of which the writ of certiorari

should issue.

Ifl.

The district court did not err in taking judicial notice of

its own records in the original case. But had it erred, the

error would have no importance here, because the appellate

court had its own records before it, which were the same as

those of the trial court.

The district court judgment of dismissal was not upon

the merits of petitioners’ claims. It was merely upon the

procedural grounds that the bill was filed without leave of

the Cireuit Court of Appeals, whose judgment was under

attack; that it was necessary for the court’s own protection

to dismiss and thereby defeat the flagrant attempt to cir-

cumvent the judgments of the district court and the judg-

ment of the appellate court, and that it was necessary to

protect the suecessful parties from a retrial of the same

ANSWER TO Petition FOR Writ or CERTIORARI, 7

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matters finally determined. In short, the district court

merely determined that Dora Brady and Lucinda Watashe

had no right to maintain their pretended suit in that court.

It may be admitted that in course of a trial upon the

merits, ordinarily a trial court will not take judicial notice

of its records in other cases. This rule, applicable to cases

on trial upon their merits, is upon the ground that every

litigant whose case is on trial upon the merits has the right

to have such record as will enable the appellate courts to

review the judgment upon the merits. But this rule has no

application where the only question presented for decision

is, May the complainant maintain the action? In the cireum-

stances presented the motion to dismiss was nothing more

than a proper challenge of petitioners’ claim of right to

maintain the action. Apparently learned opposing counsel

fail to distinguish between these two classes of cases.

As to the right of the district court to take notice of its

own records in this exceptional case, please see:

paar bllt Wings wah Mee

Freshman y. lthins, 269 U.S. 121, 46S. Ct. 41, 70

L.. ed. 193;

Morse vy. Lewis (4th Cir.), 54 F. (2d) 1027;

Kitheart vy. Metropolitan Life Ins. Co. (8th Cir.),

88 F. (2d) 407, and cases there cited;

Suren v. Oceanic S. 8S. Co. (9th Cir.), 85 F. (2d)

324,

The Cireuit Court of Appeals properly took judicial

hotice of its own records.

—National Fire Ins. Co. Vv. Thompson, 281 U. 8. 331,

74 L. ed. 881 ;

De Bearn y. Safe Deposit & Trust Co., 233 U.S.

24, 58 L. ed. 833 ;

Divide Creek Irrigation Dist. y. Hollingsworth

(10th Cir.), 72 FP. (2d) 859,

> NRE HRY.

8 Brapy, ET AL. v. BEAMS, ET AL,

The ease last above cited was upon appeal from a trial

on the merits. It was held that the material parts of the

record of the former proceeding there in question had to be

in evidence in order that a record might be made upon which

a review could be had, and hence that in that case it was not

proper for the trial court to take judicial notice of the pro-

ceedings in another action without making same a part of

the trial record. When the reason for a rule fails the rule no

longer applies.

The bill of complaint in the new case sets forth the pro-

ceedings in the original case, including the final judgment

of the Circuit Court of Appeals. It seeks to set aside, avoid

and vacate the judgment of the trial court. It seeks a re-

trial of the same issues that were tried below in the original

ease. It shows affirmatively that the matters presented

again were tried and adjudicated in the original ease. It

seeks to enjoin the respondents from executing the original

judgment. Hence petitioners cannot be heard to say that

the district court could not take judicial notice of its own

records.

ONT AAD ME ANE OT RIEU RIS Kea seroont

IV.

The complaint presents a mere ( fatally defective) bill

of review or pretended action of that nature.

It was necessary to procure leave of the United States

Circuit Court of Appeals before filing in the district court.

Bills of review, Particularly those upon the ground of

newly discovered evidence, are not favored by the courts,

Their allowance rests upon sound judicial discretion, to be

exercised cautiously and sparingly,

The motion to dismiss or to strike was a Proper chal-

lenge.

—Southard y. Russell, 16 How. 047, 14 L. ed. 1052;

Durant y. Storrow, 11 Otto 999, 25 L. ed. 96] :

National Brake Co. v. Christensen, 254 U.S. 425,

69 L. ed. 341 :

John Simmons Co. v. Grier Bros. Co., 258 U.S. 82,

66 L. ed. 475;

Toledo Scale Co. v. Computing Scale Co., 26] DD.

399, 67 L. ed. 719;

Continental Oil Co. v. Osage Oil & Refining Co.

(10th Cir.), 57 F. (2d) 527;

Continental Qil Co. v. Osage Oil ¢& Refining Co,

(10th Cir.), 69 F. (2d) 19;

In re: Gamewell Telephone Co. (Ist Cir.), 73 Fed.

908 ;

Society of Shakers y. Watson (6th Cir.), 77 Fed.

512;

Obear-Nester Glass Co. v. Hartford-Empire Co.

(Sth Cir.), 61 F. (2d) 31;

Hagerott y. Adams (Sth Cir.), 61 FP. (2d) 35;

Simonds vy. Norwich Union Indemnity Co, (Sth

Cir.), 73 F. (2d) 412;

Irvin vy. Buick Motor Co. (8th Cir.), 88 F. (2d) 947,

OLE INNER NOE ACORN RE ENS

ANSWER TO Prrition ror Writ or CERTIORARI. 9

— fee |

10 Brapy, ET AL. v. BEAMS, ET AL,

V.

It is respectfully submitted that speedy end should be

made to the false, scandalous and contemptuous charges

against the district court and the judge thereof, and appro-

priate discipline of appellants and their counsel of record

seems to be required.

—Toledo Scale Co. v. Computing Scale Co., 261 U.S,

399, 67 L. ed. 719;

Wierse v. United States, 252 Fed. 435.

The petition for writ of certiorari should be denied.

Respectfully submitted,

JOSEPH C, STONE, D. A. Ricuarpson, |

W. T. Anew, L. O. LytLe,

ALFRED STEVENSON, GEORGE JENNINGS,

Dick JoNEs, Hersert G. House,

EK. W. Smirn, Roscog 8S. Carr,

Cuares A. Moon, Harry B. Parris,

FRANCIS STEWART, Wixsvur J. Houteman,

Leon C. PHILLIPs, J. GARFIELD BUELL,

Howe. Parks,

Attorneys for Respondents.