Petitioners Brief — Bennett v. De Geeter

D e Court, U. 8.

FIL ID

AUG 27 1943

IN THE CHARLES ELMORE CROPLEY

7, CLERK

Supreme Court of the United States

OCTOBER TERM, 1943.

No. 268.

=

—

GEORGE C. BENNETT,

Petitioner,

V.

JULIUS DE GEETER,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

ELLWOOD THOMAS,

Counsel for Petitioner,

No. 52 William Street,

New York City.

Enovarp L. Dunne,

Solicitor for Petitioner.

Tue Court PRESS, N. . c.

INDEX.

PAGE

Opinions of the Court Below ............. . 1

Constitutional Provisions Involved ..... . 2

Z . 3

Specification of Errors to Be Urgeqdq—— .. 3

Point I—Having determined that the relationship of

the parties was legal and not equitable and having

denied petitioner equitable relief, the Court of

Chancery of New Jersey was without jurisdiction,

under the New Jersey State Constitution, to con—

tinue the cause or to determine petitioner’s legal

rights, and its decree and the affirmance thereof

by the New Jersey Court of Errors and Appeals

constitute a denial of due process of law and the

equal protection of the laws ......... 5

Pont II The adjudication by the Court of Chancery

of petitioner’s legal rights being void as consti-

tutionally beyond its jurisdiction, its decree per-

manently restraining the trial of those rights in a

law court of competent jurisdiction deprived peti-

tioner of his rights without due process of law

and denied him the equal protection of the laws.. 11

Post III— Petition Made No Election of Remedies.. 14

EE are

il

Inn or Cases Crirep:

PAGE

Ash Sheep Co. v. L. S., 252 U. S. 159 99. 16

Barton v. Silver, 107 N. J. Eq. 314. eee eee 16

Boro of West Long roch v. Hoch, 99 N. J. Eq. 356... 15

Clark v. Kirby, 243 N. V. 29ũ.5 7 t.. ees 16

Collier v. Collier (N. J. Ch.), 33 Atl. 193 (not officially

FOPOTtOd) ô2v!ru : 7, 13

Dickson v. Patterson, 160 U. S. 58 —- «„ „ 16

Dowell v. Mitchell, 105 U. 8. !!. ese 14

Kirkpatrick v. McElroy, 41 N. J. Hig. 5311. 13

Koloduy v. Quality Bilt Furniture Co. Ine. 131

N. J. t ũʃ 8

Logan v. Flattau, 73 N. J. Eq. 222ę½): 7

Louisville Trust Co. v. Comingor, 184 U. S. 18....10, 16

J. G. ck L. M. Railway Co. v. Swan, 111 U. 8. .

Old Wayne Life Association v. McDonough, 204 U.8.8 9

Pennoyer v. Neff, 95 U. S. 714. 9

Phillips v. Pullen, 45 N. J. Eq. 15ũ̃˖) 0.2 see e econ: 7

Poindester v. Greenlow, 238 OU. Hi FIO. 3. ives iwnsess 14

Reynes v. Dumont, 130 U. 8. WW ˙ eens 10

Richman v. Schwartz, 130 N. J. ioe . 3,15

San Giacomo v. Oraton Inv. Co., 103 N. J. Eq. 273. .3, 6, 15

Schenk v. State Line Telephone Co., 238 N. V. 308... 16

Scott v. McNeal, 154 U. ww ͤ ( 9

Soper v. Conly, 107 N. J. Eq. 53777. 6,8

Stein v. Elizabeth Trust Co., 126 N. J. Eq. 399 ..... 9

Trotter v. Hecksler, 40 N. J. Eq. 6122. 7

Twining v. New Jersey, 211 U. 8. A 2,9

U. S. Oregon Lumber 5 260 U. S. 200. 16

Welsh v. Bayaud, 21 N. J. Eq. 4 rrr 7,8

iil

Orner AuTHORITIES CITED:

Constitution of the State of New Jersey, Article VI...

Freeman on Judgments, 5th Edition, Vol. 2, page

1252

e x / ORS CS BS SY MS See Boe 2

tm. A, (. B.) OGG, Note 1D 2. ccc ccc ceree neces

United States Code, Section 344, Title 28 (Judicial

Code Section 237 as Amended——U—-

U.S. Constitution, 14th Amendment ———— ..

Yoline’s Federal Appellate Jurisdiction and Procedure,

Rights and Forms, Third Edition:

ia ] ͤ5W8Wm ͥ 0 dh es ben eeaes a

ES ⁵ ,ꝗ %. eee ere ee se a ee

19 Am. Jur.:

—AH„ eer ere TS rere te eee eee

)! ˖⸗c ͤ; 0

30 Corpus Juris Secundum at page 427

PAC i E.

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10

13

IN THE

Supreme Cnurt of the United States

OCTOBER TERM, 1943.

No. 268.

1

ae

Gronda C. BENNETT,

Petitioner,

v.

Jones De GEETER,

Respondent.

*

*

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

Opinions of the Court Below.

The opinion of the New Jersey Court of Errors and

Appeals, filed May 24, 1943, is reported in 133 N. J. Eq.

349 and appears in the record, page 449. The opinion

of the New Jersey Court of Chancery is not officially

reported but is printed in the record, page 11.

Jurisdiction.

The petition for Certiorari was filed August 17, 1943;

it invokes the jurisdiction of this Court under Section 344

of title 28 of United States Code (Judicial Code Section

237 as amended).

The decision of the Court of Errors and Appeals of

New Jersey was rendered on May 18, 1943 and the final

decree of that court was filed on May 24, 1943. Further

jurisdictional facts are stated in the petition (pp. 4, 5).

—

Constitutional Provisions Involved.

The 14th Amendment of the U. S. Constitution, pro—

vides:

“Nor shall any State deprive any person of life,

liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws”.

In Twining Y. New Jersey, 211 U. S. 78, this Court

said at page 110:

“Due process requires that the court which assumes

to determine the rights of parties shall have juris—

diction, Pennoyer v. Neff, 95 U. S. 714, 733; Scott

v. McNeal, 154 U. S. 34; Old Wayne Life Association

v. McDonough, 204 U. S. 8.“

The Constitution of the State of New Jersey, Article VI,

provides:

“The Judicial power shall be vested in a Court of

Errors and Appeals in the last resort in all causes

as heretofore; a Court for the trial of impeachments;

a Court of Chancery; a Prerogative Court; a Supreme

Court; Cireuit Courts, and such Inferior Courts as

now exist, and as may be hereafter ordained and

established by law; which Inferior Courts the Legis-

lature may alter or abolish as the publie good shall

require.“

The Court of Errors and Appeals of New Jersey has

held that

“By the system of courts set up in New Jersey

under the constitution, article 6, section 1, the juris-

diction of the equity and common law courts is sep-

arate and distinct. The common law courts have

exclusive jurisdiction to hear and determine contro-

# NS

ae

3

versies resting upon a purely legal basis and deter-

mined by the principles of the common law such as

a money claim or a simple debt and the like, whether

due or not.

The jurisdiction of equity courts cannot be con—

ferred over this class of subjects, by consent of

counsel or acquiescence of a Vice-Chancellor. The

Court of Chancery was not competent to adjudicate

the claim.”

San Giacomo . Oraton Ine. Co., 103 N. J. Ea. 273.

See also

Richman v. Schwartz, 130 N. J. Ng. 495,

The question of the constitutional limitation of the juris-

diction of the Court of Chancery of New Jersey is more

fully discussed hereinafter,

Statement.

A statement of the case is contained in the petition

(pp. 1-4).

Specification of Errors to Be Urged.

1. The New Jersey Court of Errors and Appeals has

deprived petitioner of due process and the equal protec-

tion of the laws in that it affirmed the decree of the

Court which determined petitioner's legal rights and en-

joined the prosecution of petitioner's prior action at law,

notwithstanding that

(a) The Court of Chancery, by its conclusion that

petitioner was a mere employee, divested itself of the

power to determine the legal issues raised in peti-

tioner’s prior pending action in the Supreme Court,

4

(bp) The Court of Chancery exceeded its jurisdie—

tion in assuming to determine the legal rights of the

petitioner and its adjudication as to petitioner's legal

rights is void as being beyond the power of the Court

of Chancery to make, and is not due process,

(c) The jurisdiction of the Court of Chancery was

limited to a determination of the relationship of the

parties and the enforcement of petitioner’s equitable

rights, if any; Chancery’s determination that the re-

lationship was legal and the denial of equitable relief

‘annot estop petitioner from prosecuting his action

at law wherein he seeks legal relief.

2. The New Jersey Court of Errors and Appeals erred

in holding that petitioner is barred from proceeding at

law by reason of an election of remedies.

3. The affirmance by the Court of Errors and Appeals

of the injunction against the action at law is indubitably

a violation of due process and a deprivation of the equal

protection of the laws since it prevents petitioner from

recovering the reasonable value of. his services upon

quantum meruit, which legal right was asserted in the

prior pending action at law and the issues therennder

were not raised in Chancery.

The errors urged by petitioner before the Court of

Errors and Appeals of New Jersey are set forth in the

Petition of Appeal (R., pp. 2-7).

The questions presented upon this application are

stated in the Petition, page 5. The grounds relied on for

the granting of the writ of certiorari are set forth in the

Petition, pages 5, 6.

POINT I.

Having determined that the relationship of the par-

ties was legal and not equitable and having denied

petitioner equitable relief, the Court of Chancery of

New Jersey was without jurisdiction, under the New

Jersey State Constitution, to continue the cause or

to determine petitioner’s legal rights, and its decree

and the affirmance thereof by the New Jersey Court

of Errors and Appeals constitute a denial of due

process of law and the equal protection of the laws.

The issues in the action in the New Jersey Supreme

Court, the trial of which has been enjoined by the decree

complained of, are purely legal issues, namely, for dam-

ages for breach of contract and for the reasonable value

of petitioner’s services (R., p. 39). No legal relief was

sought by either party in the Court of Chancery. That

court in determining that the relationship between the

parties was that of employer and employee thereby held

that the issue of what, if anything, was owing to the

petitioner for his services, was a purely legal issue.

The Supreme Court of New Jersey wherein petitioner's

prior action was pending at the time the action in Chan-

cery was brought by respondent was competent under the

New Jersey State Constitution to determine the legal

issues.

Accordingly, it is clear that petitioner sought the proper

remedy in the first place. His rights were legal and not

equitable. The issues raised by his action at law were

cognizable by the law courts. Chancery had no juris-

diction under respondent’s bill and Chancery’s jurisdiction

under petitioner’s counterclaim was wholly dependent

upon a determination that the relationship between the

parties was equitable and not legal.

When the Court of Chancery determined that the rela-

tionship was legal and not equitable and denied equitable

—

6

relief, it was wholly without jurisdiction and power to

determine the legal rights of the petitioner as asserted

in the prior pending action at law.

The exclusive jurisdiction over legal issues of courts of

law as opposed to the Court of Chancery over equitable

issues in New Jersey has been defined by the Court of

Errors and Appeals of New Jersey in the case of San

Giacomo v. Oraton Inv. Co., supra, which was a suit for

an accounting. The Court held that the jurisdiction of

the equity courts does not exist and cannot be conferred

over money claims or simple debts whether due or not

due and that the Court of Chancery was not competent

to adjudicate the claim. The Court said at page 274:

“We think the bill should have been dismissed on

the ground that the Court of Chancery had no juris-

diction over the subject matter. It could not hear

and determine a pure legal question cognizable by

the common law courts. The appropriate remedy is

by a suit at law.

* * *

The first requisite to constitute jurisdiction is that

the Court must have cognizance of the class of cases

to which the one to be adjudged belongs.

This principle is elementary and needs no citation

of cases.”

The denial by the Vice Chancellor to the petitioner of

equitable relief, terminated the right of the Court of

Chancery to proceed further. Since the Vice Chancellor

found that the relationship of the petitioner was that of

an employee and not a partner, and denied him relief in

equity, the Court of Chancery was wholly without juris-

diction to further restrain the action at law and, equally

without power and jurisdiction to determine the legal

rights of the parties. The New Jersey Court of Errors

and Appeals in the case of Soper v. Conly, 107 N. J. Eg.

537, and the New Jersey Court of Chancery in the ease of

7

Collier v. Collier (N. J. Ch.), 33 Atl. 193 (not officially

reported) firmly establish the rule that upon a denial of

equitable relief the Court of Chancery is without juris-

diction to decide legal issues which under the Constitu-

tion of the State of New Jersey are solely cognizable in

the law courts of that State.

See also—

Trotter v. Heckscher, 40 N. J. Eq. 612;

Phillips v. Pullen, 45 XN. J. Eq. 157;

Logan v. Flattau, 73 N. J. Eq. 222, citing Welsh

v. Bayaud, 21 N. J. Eq. 186;

30 Corpus Juris Secundum, at page 427;

Freeman on Judgments, 5th Edition, Vol. 2, page

1252.

For extensive correlation of authorities see Note 19

L. R. A. (N. S.) 1064; at page 1065 the note states:

“Although a few cases are found which can be

characterized only as variants from the general rule,

the preponderance of opinion in relation to the sub-

ject under consideration clearly seems to be that

where a case for relief in equity fails, a court of

equity is without jurisdiction to award other relief

hy way of disposing of the entire controversy; unless,

indeed, it appears that the remedy at law will be

inadequate. Otherwise, as the courts have frequently

pointed out, a litigant, by a pretended claim for

equitable relief, might deprive his opponent of ad-

vantages incident to an action at law.”

In 19 Am. Jur. page 132, it is stated:

“If the facts which are relied on to sustain equity

jurisdiction fail of establishment, the court may not

retain the case for the purpose of administering legal

relief.”

—

8

In the case of Welsh v. Bayaud, 21 N. J. Eq. 186, the

court said of the complainant’s request that a decree be

made that the defendant repay money paid on account of

a contract the specific performance of which was sought

(p. 187):

“The Complainant may have the right to recover

this money, but his remedy is at law, not in equity.

* * * The complainant having failed on his only

ground for equitable relief, cannot have his suit re—

tained for granting a relief to which he is only

entitled at law.“

In Soper v. Conly, supra, the Court of Errors and

Appeals of New Jersey stated at page 538;

“To give and continue in the court below, juris-

diction, it was necessary that the fraud alleged should

be established. Appellants having failed in this

direction the court of chancery was without juris-

diction to proceed further and the bill of complaint

should then have been dismissed. Notwithstanding

this the learned vice chancellor proceeded to hear

and pass upon the question of the title to the lands

contracted to be conveyed. While we do not stand

in disagreement with him, upon the proofs, as to

the result reached in this respect, nevertheless, under

the cireumstances, he exceeded the jurisdiction of the

court in which he was sitting.“

A recent authority in support of the proposition that

Chancery will not take jurisdiction where there is an

adequate remedy at law is Kolodny v. Quality Bilt Furni-

ture Co. Ind., 131 N. J. Eq. 248, wherein it is stated of the

defendant’s claim, on page 249:

“Essentially his claim, if established, would be

nothing more than an action for damages and breach

of contract * * *”

9

His remedy, if any, is at law on the con—

tract.”

The Court of Errors and Appeals of New Jersey in

Stein v. Elizabeth Trust Co., 126 N. J. Eq. 399, said in

part (p. 403):

“The action, simply stated, was for the recovery

of a judgment based upon a debt arising by implica-

tion of law * * *. The relation of a bank to a trustee-

depositor is that of creditor and debtor. New

Amsterdam Casualty Co. v. National Newark and

Essex Banking Co., 117 N. J. Eq. 264, 271; affirmed,

119 N. J. Eq. 540, and this relationship, per se, gives

rise to no equitable consideration.” (Italies mine.)

Due process of law has been defined by this Court as

requiring “That the court which assumes to determine

the rights of parties shall have jurisdiction”. Twining

v. New Jersey, 211 U. S. 78, 110; Pennoyer v. Neff, 95 U. S.

714, 733; Scott v. McNeal, 154 U. S. 34; Old Wayne Life

Association v. McDonough, 204 U. S. 8.

In Scott v. McNeal, 154 U. S. 34 at page 46, this Court

said :

“No judgment of a court is due process of law, if

rendered without jurisdiction in the court, or without

notice to the party.

The words, ‘due process of law’, when applied to

judicial proceedings, as was said by Mr. Justice Field,

speaking for this court, ‘mean a course of legal pro-

ceedings according to those rules and principles which

have been established in our systems of jurisprudence

for the protection and enforcement of private rights.

To give such proceedings any validity, there must

be a tribunal competent by its constitution—that is,

by the law of its creation—to pass upon the subject

matter of the suit; and, if that involves merely a

—

10

determination of the personal liability of the defend-

ant, he must be brought within its jurisdiction by

service of process within the State, or his voluntary

appearance.” Pennoyer v. Neff, 95 U. S. 714, 733.”

In Zoline’s Federal Appellate Jurisdiction and Pro-

cedure. Rights and Forms. Third Edition. Page 168,

Section 298 it is stated:

“Due Process” applied to judicial proceedings.

“The system ‘due process of law,’ when applied to

judicial proceedings mean a course of legal proceed-

ines according to those rules and principles which have

heen established in our system of jurisprudence for

the protection and enforcement of private rights.

To give such proceedings any validity, there must

be a tribunal competent by its Constitution—that is,

by the law of its creation—to pass upon the subject-

matter of the suit; and if that involves merely a

determination of the personal liability of the defend-

ant, he must be brought within the jurisdiction by

service of process within the State, or his voluntary

appearance.”

In Reynes v. Dumont, 130 U. S. 354, this court said at

page 395:

“It was held in Lewis v. Cocks, 23 Wall. 466, that

if the court, upon looking at the proofs, found none

at all of the matters which would make an appro-

priate case for equity, it would be the duty of the

court to recognize the fact and give it effect, though

not raised by the pleadings nor suggested by counsel.

To the same effect is Oelrichs v. Spain, 15 Wall. 211.”

In Louisville Trust Co. v. Comingor, 184 U. S. 18 at

page 25, this court said:

“Jurisdiction as to the subject-matter may be

limited in various ways, as to civil and criminal cases;

11

cases at common law or in equity or in admiralty;

probate cases, or cases under special statutes; to

particular classes of persons; to proceedings in par-

ticular modes; and so on. In many cases jurisdiction

may depend on the ascertainment of facts involving

the merits, and in that sense the Court exercises juris-

diction in disposing of the preliminary inquiry, al-

though the result may be that it finds that it cannot

go farther. And where in a case like that before us,

the court erroneously retains jurisdiction to adjudi-

cate the merits, its action can be corrected on review.”

(Italies mine.)

POINT II.

The adjudication by the Court of Chancery of peti-

tioner’s legal rights being void as constitutionally

beyond its jurisdiction, its decree permanently re-

straining the trial of those rights in a law court of

competent jurisdiction deprived petitioner of his

rights without due process of law and denied him the

equal protection of the laws.

By reason of the injunction of the Court of Chancery

which has been affirmed by the Court of Last Resort of

the State of New Jersey, petitioner is deprived of his

day in a court of competent jurisdiction. Petitioner hav-

ing failed to establish his right to equitable relief, the

Court of Chancery was without jurisdiction to determine

petitioner’s legal rights. Chancery’s assumption of such

jurisdiction was unconstitutional and its determination

is therefore a nullity and of no effect.

The injunction prevents a determination in a court of

competent jurisdiction of petitioner’s legal rights. Peti—

tioner originally sought relief at law (R., p. 39). In the

law action he asserted legal rights and asked for legal

relief (R., pp. 46, 47). The Court of Chancery decided

that petitioner’s rights, if any, were of a legal nature.

The law is settled that when the Court of Chancery denied

equitable relief, that court was without jurisdiction to

determine the legal rights of the petitioner.

Only in the event that the Court of Chancery found

that a partnership or joint adventure, in fact, existed,

would it have had the power and jurisdiction to determine

“how much, if anything” was due petitioner from respond-

ent. In other words, there was no prayer for general

relief in petitioner's counterclaim (R., P. 83, par. 7) nor

was there any issue raised thereunder as to “how much,

if anything, was due” except in the event a partnership or

joint adventure was found, by the Court of Chancery, to

have existed between the parties.

Once the Court of Chancery determined the petitioner

was a mere employee, the Chancellor, under the New

Jersey State Constitution and under the decisions of the

Court of Chancery and the Court of Errors and Appeals

of New Jersey, was wholly without power and jurisdic-

tion to retain the cause and determine the purely legal

issue, as to an employee’s right to compensation for

services, Furthermore, there was no proof before the

Court of Chancery as to petitioner’s legal right to dan-

ages for breach of contract nor as to the re easonable value

of his services nor could such proof have been properly

offered before that Court.

Even if the determination by the Vice Chancellor that

there was no express contract as claimed by petitioner

were conclusive, nevertheless, in any event the petitioner

‘annot be deprived of his right to enforce his claim for

the reasonable value of his services. Such a claim was

included in his prior pending action at law. The second

count in the complaint therein is upon quantum meruit,

The issues under the second count for quantum meruit

in the action at law were not raised in Chancery and it

would have been improper so to raise them. No proot

was before the Vice Chancellor as to the value of peti-

tioner’s services.

13

An action on quantum meruit is different and distinct

from an action for breach of an express agreement.

Kirkpatrick v. McElroy, 41 N. J. Eq. 531, see also Free-

man on Judgments, Sth Ed., Section 736:

“Failure to recover in an action on an express con-

tract does not bar an action on an implied contract

arising from the transaction.”

The exclusive jurisdiction of the New Jersey Supreme

Court to determine all legal issues raised under peti-

tioner’s action at law is established by the decisions of the

New Jersey courts relied on and referred to under Point J.

THE PETITIONER CANNOT BE DENIED RELIEF IN CHANCERY

AND AT THE SAME TIME ENJOINED FROM PROCEEDING AT LAW.

In Collier v. Collier (N. J. Chan.), not officially reported,

33 At. Rep. 193, at page 193, it is said:

“When an action at law is sought to be restrained

by suit in equity, and part of the grounds upon which

the bill rests are purely of equitable cognizance, and

part, when considered separately, are strictly of legal

cognizance, and the proofs do not establish the allega-

tions which are of purely equitable cognizance, a

court of equity has not jurisdiction to further restrain

the action at law, and proceed to determine the legal

rights of the parties. * * *”

“A moment’s reflection will satisfy every one that

nothing could be more mischievous than the adoption

of the principle contended for by the complainant.

In such case it would only be necessary for the de-

fendant in an action at law to make some pretense

of claim against the plaintiff in such action of fraud,

mistake, aecident, or right to an account, in order to

change the forum of litigation, and to compel the de-

termination of questions purely legal in a court of

equity” (p. 194).

14

In Dowell v. Mitchell, 105 U. S. 430 at page 432, this

Court stated:

“The rule is that where a cause of action cognizable

at law is entertained in equity on the ground of some

equitable relief sought by the bill, which it turns out

cannot, for defect of proof or other reason, be granted,

the court is without jurisdiction to proceed further,

and should have dismissed the bill without prejudice,”

(Citing cases.)

The courts of New Jersey cannot take away all remedy

for the enforcement of petitioner’s right to compensation

for his services. “To take away all remedy for the en-

forcement of a right is to take away the right itself,

Poindexter v. Greenhow, 114 U. S8. 270, 303.

It follows therefore that since the Court of Chancery

ras without jurisdiction to determine the issues raised

under petitioner’s action at law, its decree preventing

a determination of petitioner’s legal rights by the Supreme

Court, which under the New Jersey State Constitution is

exclusively vested with such jurisdiction, is violative of

the Fourteenth Amendment of the Constitution of the

United States in that such injunction deprives the peti-

tioner of the equal protection of the laws and of the

right to due process of law.

POINT III.

Petitioner Made No Election of Remedies.

The New Jersey Court of Errors and Appeals, in its

majority opinion held that petitioner had made an elee-

tion of remedies (R., p. 453). This was not so. It cannot

be said that petitioner abandoned his action at law. The

record discloses that he repeatedly raised the jurisdie—

tional question (R., pp. 54, 105, 194, 199, 23) nor can it

be said that the Court of Chancery had jurisdiction by

reason of petitioner’s counterclaim.

15

Petitioner’s counterclaim did not submit petitioner’s

legal rights to the Court of Chancery. It asked that

the Court of Chancery determine whether petitioner's

rights were equitable, and, if it so determined (R., 82,

par. 3) that such equitable rights be enforeed. Neither

by affirmative action nor by consent, nor by acquiescence,

did petitioner attempt to submit his rights, if legal, to the

jurisdiction of that Court. Even if petitioner had done

so, that Court would not have acquired jurisdiction. The

settled rule is that jurisdiction cannot be conferred hy

consent of counsel nor by reason of the acquiescence of a

vice chancellor,

San Giacomo v. Oraton Inv. Co., supra;

Richman v. Schwartz, supra:

. C. d L. M. Railway Co. v. Swan, 111 U. S. 379.

In Boro of West Long Branch v. Hoch, 99 N. J. Eg.

356, the court stated:

“It is enough to say in disposing of the contention

that counsel cannot, by mere silence or by express

consent, confer upon courts of equity the power to

determine litigated matters which, under our judicial

system, must be settled in a court of law; or, stated

in another way, strip the law courts of jurisdiction

conferred upon them under the constitution and

transfer it to courts of equity.”

In 18 Am. Jur. page 152, it is stated that—

“No election of remedies occurs where the equity

suit proves fruitless or unavailable” citing Mills v.

Parkhurst, 126 N. X. 89.

Even if petitioner had himself gone into chancery orig-

inally alleging an equitable relation he would not be

estopped from thereafter instituting an action at law if

Chancery had determined that the relationship was not in

fact equitable.

eee AAA dee -n SUS TOI AT se ot

16

The choice of a fancied remedy and the futile pursuit

of it beeause either the facts turn out to be different

from what the parties supposed them to be or the law

applicable to the faets is found to be other than supposed

and although the first action proceeds to judgment does

not preclude the plaintiff from thereafter invoking the

proper remedy.

Ash Sheep Co. v. UL S., 252 U. S. 159 wherein the Court

said at page 170:

“Rejection of a claim because pursued in an action

in which it cannot be entertained does not constitute

an estoppel against the pursuit of the same right in

an appropriate proceeding.”

In Barton v. Silver, 107 N. J. Eq. 314, it was held that

where remedies in several courts are different, jurisdiction

in one is not effected by proceeding in another.

Mere election of remedies is not an irrevocable choice

between alternative and inconsistent substantive rights

and is not a bar to the later pursuit of the proper

remedy.

Schenk v. State Line Telephone Co., 238 X. X.

308 ;

U. S. v. Oregon Lumber Company, 260 U.S.

290;

Clark v. Kirby, 243 N. V. 295;

Dickson v. Patterson, 160 U. S. 584.

Chancery’s jurisdiction was limited to the original

inquiry as to jurisdiction (Louisville Trust Co. v. Comin—

gor, 184 U. S. 18, 25). When it found no equitable rela—

tionship, the Court of Chancery “cannot go farther.”

Therefore under Chancery’s own finding, there was only

one remedy available to the petitioner, and that was his

action at law which was and is pending in the Supreme

Court.

17

CONCLUSION.

ROD a |

It is clear, therefore, that, under the Constitution of

the State of New Jersey the Court of Chancery was

wholly without jurisdicion and power to determine the

purely legal claim of the petitioner for damages for

breach of contract and for the reasonable value of his

services upon quantum meruit as such rights are legal

and exclusively cognizable by the New Jersey Supreme

Court in which petitioner's prior action is pending and

which petitioner is enjoined from prosecuting be in

junction of the Court of Chancery which has been affirmed

by the New Jersey Court of Errors and Appeals.

It is equally clear that the aflirmance by the New Jersey

Court of Errors and Appeals of the decree of the Court

of Chancery perpetually enjoining and restraining the

prosceution of petitioner's action at jaw deprived peti-

tioner of due process of law and of the equal protection

of the laws in violation of the 14th Amendment of the

Constitution of the United States.

The writ of certiorari should be granted and upon

fnal hearing the final decision and decree of the New

Jersey Court of Errors and Appeals affirming the de-

cree of the Court of Chancery and the decree so af-

firmed should be reversed, set aside and for nothing

holden.

ECC

August 17, 1943.

Respectfully submitted,

ELLWOOD THOMAS,

Of Counsel with Petitioner.

Eoovary L. Dunne,

Solicitor for Petitioner,

NSLS TR LOM:

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