Petition for Writ of Certiorari — Davis v. Shell Union Oil Corp.

Y.

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IN THD

Supreme Court of the United States

OcToser TERM, 1943 |

\ No.

a/

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/ ARCHIE C. DAVIS,

Petitioner,

| —against—

SHELL UNION OIL CORPORATION,

ASIATIC PETROLEUM CORPORATION,

Defendants,

—and—

COMPANIA de PETROLEO SHELL de COLOMBIA;

N. V. KONINKLIJKE NEDERLANDSCHE MAATSCHAPPIS TOT

EXPLOITATIE VAN PETROLEUMBRONNEN IN NEDERLANDSCHE-

INDIE (ROYAL DUTCH COMPANY FOR THE WORKING OF PETRO-

LEUM WELLS IN THE NETHERLANDS INDIES);

THE SHELL TRANSPORT & TRADING COMPANY, LTD.;

N. V. de BATAAFSCHE PETROLEUM MAATSCHAPPIJ (THE

BATAVIAN PETROLEUM COMPANY);

THE ANGLO-SAXON PETROLEUM COMPANY, LTD.; and

ASIATIC PETROLEUM COMPANY, LTD.,

Respondents.

PETITION AND BRIEF IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI TO THE UNITED STATES

CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT

SAMUEL B. STEWART, Jp.,

20 Exchange Place,

and

GEORGE C. DIX,

60 Wall Street,

New York City,

Counsel for Petitioner.

Law Brief Press—NYC

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SUBJECT INDEX

PETITION

PAGH

Summary Statement of the Matter Involved ........ 2

Jurindictional Btatememt ....cccccccccccsecpsaceses 3

The Question Presented ..........eccccecsececeoees 4

Reasons Relied on for Allowance of the Writ........ 4

BRIEF

Opinions of Courts Below............see eee ee eeees 6

Jariadiction of This Gourt.......ccccccccscwescccsess 7

Statement of the Case. .......cccccccvccccccsscscces 4

Specification of Errors.........-.eeee sere eee eeeeee 8

ARGUMENT

Point I.

Section 128 of the Judicial Code (28 U. 8. C.

§225) does not call for the narrow interpre-

tation of the requirement of finality placed

upon it by the Second Circuit Court of Appeals,

and that Court’s ruling herein is inconsistent

with the intent of the statute.............- 8

Point ITI.

The District Court judgment, which has fin-

ally determined a controversy distinct from the

general subject-matter of the litigation and

as between all the parties to such controversy,

oe A ee a es ee ne pn ge lee,

Fa et ED IOLA DG DOE EL SL LE LPL SLOT IO OOD

Point IIL.

The cases relied upon by the Cireuit Court

of Appeals below are not applicable to this

a ga eee ee ab CSA DEERE EES SEED TED 14

Point IV.

The existing conflict among the decisions of

the Circuit Courts of Appeals sh “Id be re-

solved by this Court in accordance with the

principles announced in Reeres v. Beardall.. 16

Cec. 5 va skies cde ened eset cestansdany esse see 18

Appendix—Statute PE gcc ncadccccdaeesbesstesveun 19

TABLE OF CASES CITED

ii inka kn ck R ee nes been ena makeennte sseenss 14, 18

Clark v. Williard, 292 U. S. 112......--++++eeee+ 4, 11, 12

Cobbledick v. United States, 309 U. S. OR ic nes sees 9

Collins v. Metro-Goldwyn Pictures Corp., 106 F. (2d)

OS rid a dhnis We S 04d 0d AHR EE SNORE SR oS 008845 17

Curtis v. Connly, 264 Fed. 650, aft’d. 257 U. S. 260 . 15

Heike v. United States, 217 U. S. 423.......++++++- 9

Hill v. Chicago & Evanston Railroad Co., 140 U. 8S.

PPI Orr rrrerr ett Tr Tht rere e 4,12, 14

Hohorst vy. Hamburg-American Packet Co., 148 U. 8.

ON So Seah ad OhSS VOR EEN S484 O0-5% 10, 11, 14, 15, 18

Lamb v. Cramer, 285 U. 8. 217...-.- aed eeresthwans il

PAGE

Moss v. Kansas City Life Ins. Co., 96 F. (2d) 108.. 4,16

Reeves v. Beardall, 316 U. &. 2OS. .... 2... ccccse. 4,11,17

Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516.... 17

Thompson vy. Murphy, 93 F. (2d) 38.............. 4,16

United States v. River Rouge Improvement Co., 269

a SE Abn tenseedeVn cewek beadadaesecueb aes 4,12,13

United States vy. 243.22 Acres of Land, 129 F. (2d) 678 17

Wilson v. Republic Iron & Steel Co., 257 U. S. 92.. 11

STATUTES CITED

Judicial Code, Section 128 (28 U. S. C. §225)....3, 4,8, 19

Judicial Code, Section 240(a) (28 U. S. C. §3847).. 9 3,7

Court RULE CITED

Supreme Court Rule 38, par. 5(b)................ 3, 7

TEXTBOOK AND LAW REVIEW ARTICLES CITED

Crick, The Final Judgment as a Basis for Appeal,

gS er eT eee ree 8

3 Moore’s Federal Practice, pp. 3391-2; 1942 Supp..

POLE Pes TT ECCT ET OPEL ECE TTT eee 8, 9, 17

rr iin weGhak case aunnee we 08 8,17

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Supreme Court of the United States

OcTosEeR TERM, 1943

No.

<=

ARCHIE C. DAVIS,

Petitioner,

—against—

SHELL UNION Or CORPORATION,

ASIATIC PETROLEUM CORPORATION,

Defendants,

—and—

CoMPANIA de PETROLEO SHELL de COLOMBIA;

N. V. KONINKLIJKE NEDERLANDSCHE MAATSCHAPPIJ TOT

EXPLOITATIE VAN PETROLEUMBRONNEN IN NEDER-

LANDSCHE-INDIE (ROYAL DUTCH COMPANY FOR THE

WorKING OF PETROLEUM WELLS IN THE NETHERLANDS

INDIES) ;

Tur SHELL TRANSPORT & TRADING COMPANY, LTD. ;

N. V. de BATAAFSCHE PETROLEUM MAATSCHAPPIS (THB

BATAVIAN PETROLEUM COMPANY) ;

THE ANGLO-SAXON PETROLEUM COMPANY, LTD.; and

ASIATIC PETROLEUM COMPANY, LTD.,

Respondents.

a>

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, The Chief Justice of the United States

and Associate Justices of the Supreme Court of the

United States:

The petition of Archie C. Davis respectfully shows to this

Honorable Court:

“el? , "

33 ——

rae ANITA RE Pear ESSAY

2

Summary Statement of the Matter Involved.

The petitioner brought this action at law in the United

States District Court for the Eastern District of New York

against the six respondents herein and the two other defen-

dant corporations, Shell Union Oil Corporation and Asiatic

Petroleum Corporation, for $380,000. damages on one cause

of action for breach of contract, and for $25,000. damages

on a second cause of action based upon misrepresentation.

The two formal agreements upon which the action is based,

copies of which are annexed to the complaint (R. 12-18 and

20-22), were executed in New York City by respondent

Shell Colombia. That respondent is alleged to have executed

these two contracts both on its own behalf and as the agent

and instrumentality of each of the seven other defendants,

each of which participated in the negotiations leading up

to the execution thereof (R. 8).

Shell Union Oil Corporation and Asiatic Petroleum Cor-

poration, both Delaware corporations, admittedly doing

business in New York, appeared and answered. The re

maining six defendants, the respondents herein, joined in

a motion to vacate the service of process upon them on

the grounds (1) that the Court had no jurisdiction over

their persons, and (2) that the individuals upon whom proc-

ess was served were not agents upon whom service could

validly be made. The District Court (Abruzzo, J.) granted

the motion and wrote a lengthy opinion (R. 34-49), and

on November 20, 1943 an order and judgment (R. 22-24)

was entered vacating the service of the summons and com-

plaint upon the respondents and dismissing the action as

to them for lack of jurisdiction over their persons.

An appeal was taken (R. 25-26) by the petitioner from

the said order and judgment to the United States Circuit

Court of Appeals for the Second Circuit, and the respon-

dents moved to dismiss the said appeal (R. 1-2) upon the

3

ground that the decision of the District Court is not a final

appealable decision within the meaning of the Judicial Code,

Section 128 (28 U. S. C. $225). On February 11, 1944, the

Circuit Court of Appeals (Swan, Chase and Clark, JJ.)

rendered a decision upon this motion as follows (R. 26):

“Motion to dismiss granted on authority Hohorst v.

Hamburg Am. Packet, 148 U. S. 262; Atwater v. No.

Am. Coal Corp., 111 F. (2d) 125 (C. C. A. 2).”

An order of the said Circuit Court of Appeals, dated

March 2, 1944 (R. 49), was filed that day, dismissing the

petitioner’s said appeal. This petition is for writ of cer-

tiorari to review that order.

Jurisdictional Statement.

Jurisdiction is conferred upon this Court to review the

order of the Circuit Court of Appeals, by Section 240 (a)

of the Judicial Code (28 U. 8. C. $347).

The said order has denied petitioner the right to appeal

from the District Court judgment finally dismissing the

action against all but two of eight defendants on the ground

it lacked jurisdiction over their persons. This decision

involves a substantial question, and is in conflict with the

decisions of another Circuit Court of Appeals on the same

matter, and is also probably in conflict with applicable de-

cisions of this Court. Moreover, the decision cannot be

reconciled with the accepted and usual course of judicial

proceedings and therefore calls for an exercise by this Court

of its power of supervision (Supreme Court Rule 38, par.

5 [b]).

4

The Question Presented.

The question presented to this Court is whether an order

and judgment of the District Court, which finally dismissed

this action against six of the eight defendants (the only

six defendants who had made jurisdictional objections) on

the ground that the Court lacked jurisdiction of their re-

spective persons, and thereby finally determined a contro-

versy between the plaintiff and the said defendants which

was wholly separate and apart from the causes of action

asserted against the two remaining defendants, is final and

appealable within the meaning of Section 128 of the Ju-

dicial Code (28 U.S. C. $225).

Reasons Relied on for Allowance of the Writ.

1. The decision of the Circuit Court of Appeals for the

Second Circuit is probably in conflict with the following ap-

plicable decisions of this Court:

Hill v. Chicago & Evanston Railroad Co., 140 U.

§. 52;

Clark v. Williard, 292 U. 8. 112;

United States v. River Rouge Improvement Co.,

269 U. S. 411;

Reeves v. Beardall, 316 U. 8. 288.

29. The decision of the Circuit Court of Appeals for the

Second Circuit is in conflict with the following decisions

of another Circuit Court of Appeals on the same matter:

Thompson v. Murphy, 93 F. (2d) 38 (C. C. A. 8th,

1937) ;

Moss v. Kansas City Life Insurance Co., 96 F. (2d)

108 (C. C. A. 8th, 1938).

8 If this Court should conclude that the decision of the

Circuit Court of Appeals for the Second Circuit does not

5

conflict with the decisions of this Court cited in paragraph

1 above, then the order of which review is sought herein con-

stitutes a decision of an important question of federal ap-

pellate jurisdiction which has not been, but should be, set-

tled by this Court.

4. The Circuit Court of Appeals for the Second Circuit

has decided an important question of federal law regarding

its appellate jurisdiction in a manner which has so far de-

parted from the accepted and usual course of judicial pro-

ceedings as to call for the exercise of this Court’s power of

supervision.

~

5. The Circuit Court of Appeals for the Second Circuit

has so strictly construed the extent of the appealability of

orders of the District Court as to violate the purpose of

appellate courts and the intent of the statute governing

the same, and to deprive the petitioner of a review of an

order of the District Court which involves a very substan-

tial right.

WHEREFORE, your petitioner respectfully prays that a writ

of certiorari issue under the seal of this Honorable Court,

directed to the Cireuit Court of Appeals for the Second

Circuit, commanding that Court to certify and to send to

this Honorable Court for its review and determination, on

a day certain to be therein named, a transcript of the record

and proceedings herein; and that the judgment of the Cir-

cuit Court of Appeals for the Second Circuit be reversed

by this Honorable Court, and your petitioner have such

other and further relief in the premises as to this Honor-

able Court may seem just and proper.

Dated: April 24, 1944.

SAMUEL B. STEWART, JR.,

GEORGE C. DIX,

Counsel for Petitioner.

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