# Petition for a Writ of Certiorari — Denicke v. Anglo California National Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2236%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1944 - **Citation:** 323 U.S. 739 ## Text | “Iu the Supreme Gout —— > OF THE United States '" “ vu Le Jo Rarer ree coment CUARLES § PLE rg ee ee eee — a Octoser Term, 1943 ———_ SISNSE Ie No. iva DE \ : > S N\ | Ernest H. Denicxe and Mary E. Dose, Petitioners, vs. Tue Ancio Cauiroryia Nationat, Bank or San Francisco (a national banking association), Mortimer FrrtsHnacker, Hersert FLrisi- HACKER, Mortimer FLeisHHacker, J R., GEORGE I. Cocuray, Pump S. Baxer, R. D. Bric- HAM, Water E. Buck, Watrer A. Haas, Paut E. Hoover, WruuiaM F. Hompnrey, Samvuet Kann, Vicror Kuinker, Wii1aM B. Reis, Paut Sxour, Leon Stoss, Jr., Lours Surrer, Aurrep B. Swrverron, T. C. TILDEN, JosepH O. Topix, Wuuarp 0. WayYMAN, Trene L. Bere, Executrix of the will of Wil- liam H. Berg, Deceased, R. Stantey Doar and Frank Moss, Respondents. e PETITION FOR WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Ninth Circuit and BRIEF IN SUPPORT OF PETITION. Aaron M. Sarcent, Hobart Building, San Francisco 4, California, Attorney for Petitioners. 4a a eae Subject Index Petition for Writ of Certiorari Page Statement of matter involved... .........ccccscccccvcsnvce 2 Irregular signature clause on opinion................. Court rule governing opinions filed during adjournment 5 Irregular entries in violation of rule.................. 6 Refusal to vacate or reassign. ..................eceee- 6 Pre Or Ik Nia koe ao a oe ees 7 Questions not decided in District Court : Ss ee NE 55-2 bee de ea Re eee eh een Violation of Supreme Court decisions requiring findings Standards governing proceeding under Rule 23(e) ARNIS Mpg aDE ores erat ye ee cnet robo OT AS mee tat Derivative status established by Supreme Court deci- re re PE ye Pet En Pa ee ES gh Local law defining shareholders’ rights............... Cross-examination of bank officers.................... Depositions of Schram and Husbands................. Status of Reconstruction Finance Corp................ Infringement of right to amend and intervene......... Suppression of record on certiorari.................22000- Duty to render opinion disposing of appeal................ i Ee Per yer EOP eee ee re Sn SN 6 5 dis chic ceca vuSe Sp aphccaexeeevans Reasons for granting the writ...............ccccccccccces Brief in Support of Petition Ne: Ole DO Ns cir ot vk ee eae wks hae awad be eae IR, oo arr en ee ee ee bnGeent OF ENG GARG ces. cktcccs cade Gow naw dala g os Rivac chee Proceedings in the District Court..................... Proceedings in Cirenit Court... .........ccsccccccances I CI i ee ru elem paw ab Rk aks Right to vaeate void entries in Cireuit Court.............. Duty to render written opinion, supported by signatures... -! 10 17 18 18 20 20 i Sussect INDEX Page Reversal for failure to make findings.....-..----+-++++++> 53 Duty to reverse because of denial of hearing..........---- 56 Right to vacate decree on ground of mistake.......------- a7 Standards governing approval of a settlement under Rule tly I oo ais cn en ec ee hn eee heaven ens det enneees 58 Right to nonsuit of the petition. ...-.------+es sere erertees 61 Duty to follow local Jaw coneerning derivative status...... 65 1 nial of right to amend and intervene.....-----+++-+25> 68 Cross-examination of bank officers handling the negotiations 69 Right to take depositions of witnesses Schram and Husbands under Rule 26 FRCP. .......------eseee cere ce eeceecee 73 Right to take depositions of federal officials under Rule 31 doy a thaxersceneeencaanpenetasseness ss 74 Privilege of witnesses ......-.--0--eeseerereer reste 82 Question presented by refusal of bank to employ independ- ih ee a chads bh aeameen as Aepeweus ehh snes ss 85 Duty to issue writ to protect right of appeal........-----+-- 87 Denial of due process in the Circuit oka ia hash 89 py PORN I IS EFS Table of Authorities Cited Cases Pages Alford v. United States, 282 US 687 at 692............... 56 Anderson v. Akers, 7 Fed. Supp. 924 at 939............... S4 Arizona v. California, 283 US 423 at 452................-. 81 Aspen Mining & Smelting Co. v. Billings, 150 US 31....... 24 Atherton v. Anderson, 99 Fed. 2d 883 at 889.............- S4 Avery v. Alabama, 308 US 444.............: cee eee ec ee 56 Brassfield v. United States, 272 US 448................65. 56 ee ae a yD rr rrr S4 Bruno v, United States, 308 US 287............ een ercat: 56 California Water Service Co. v. City of Redding, 304 US kee oe ica FA Wolk a he wie aaoniw INS Soa aw aIA eB 8 * 56 Case v. Los Angeles Liunber Products Co., 308 US 106 at eae ee a ae Tee ba dn eas keke aie OUD 11, 12, 26, 59 (Chesbrough v. Woodworth, 244 US 72.............05 0006: 24,3 Chicago & Great Western v. Basham, 249 US 164......... 24 Citizens Bank v. Opperman, 249 US 448................5- 24 Cohen v. Young, 127 Fed. 2d 721 at 725............... 12, 27, 60 Cohens v. Virginia, 19 US (6 Wheat.) 264 at 408.......... 28, 47 Consolidated Rock Products Co. v. DuBois, 312 US 510 at ie eee ee ee OS USS e Ge Kn akewelem 4 11, 54, 60 Cox v. Montague, 78 Fed. 845. 0.0.6.0... cece eee eee S4 Delaware & Hudson Co. v. Albany & Susquehanna RR Co., hi pie wdnakeu ss seco need vss 13, 27, 61, 68 Denicke v. Anglo Bank, 26 Fed, Supp. 240...............- 32, 34 Denicke v. Anglo Bank, 45 Fed. Supp. 524...............- 32 Denicke v. Anglo Bank, 141 Fed. 2d 285................. 32 Doetor v. Harrington, 196 US 579 at 587............ 13, 27, 62, 68 Eggers v. National Radio Co., 208 Cal. 308 at 313, 281 Pace. eh ee eae hie heh PERO LE ORR ON CR EOS 17, 25, 66 Erie RR Co. v. Tompkins, 304 US 64...............45- 17, 25, 67 Federal Deposit Insurance Corp. v. Mason, 115 Fed. 2d 548 = 84 Federal Housing Administration v. Burr, 309 US 242..... 83 Federal Land Bank v. Priddy, 295 US 229.............-4. 83 Fleming v. Bernardi, 1 FRD 624................0 eee eens 84 SDSL EGER LEAL LEAL LL ENTE ERE AGERE SAE STS Be cas e Seaaeets iv TABLE oF AUTHORITIES CITED Pages Giasser v. United States, 315 US 60 at 69-70..........+++- 57 loess v. Ehret, 85 Fed. 2d 109......2---- eee eeee ee ereces 84 Hill v. Texas, 316 US 400.........6 5 cece eee eee ee renee 56 Interstate Cireuit Inc. v. United States, 304 US 55 at 56... .11, 54 In re Culhane, 269 Mich. 68, 256 NW 807........--.++-+: 84 In re French, 315 Mo. 75, 285 SW 513, 47 ALR Backes &4 In re Giannini Ine., 90 Fed. 2d 445. ........ 2-0 eee eens 46 - In re Millspangh, 307 Mo. 185, 270 _, Bi BAe err ers. 84 Johnson v. Zerbst, 304 US 458.......... ee cence eee pies 56 Keifer & Keifer v. Reconstruction Finanee Corp. and Re- vional Agricultural Credit Corp., 306 it” PR 20, 83 Kelley v. Everglades District, 319 US 415 at 420... .10, 11, 54, 60 Klopstoek v. Superior Court, 17 Cal. 2d 15 at 16, 108 Pae. ik sc ink cine nk ea bare neha heer eserhe sees hs 17, 25, 65 Mahnich v. Southern Steamship Co. (Oct. Term, 1943 No. es eee ada n mek REN DEK EMTS eT er AeA Les 55 Mayo y. Canning Co., 309 US Oe Es ree ee 11,54 Morgan v. United States, 304 Ean ere ft 56 National Surety Co. v. Coriell, 289 US 426 at + _ ee gay ee 11, 58 Norris v. Alabama, 294 US 587.......------e eee er erences 56 Pepper v. Litton, 308 US 295.2... +... seers e reer 20, 28, 82 Powell v. Alabama, 287 US 45. ........5- eee cece errr ee eee 56 Reconstruction Finance Corp. v. Menihan Corp. 312 US 81 Rio Grande Irrigation Co. v. Gildersleeve, 174 US 603 at 608 46 Securities and Exchange Commission v, Chenery Corp., 318 Td. & OT Pre rer rn TY ToC e er ae et 10, 54 Securities and Exchange Commission v. United States Realty & Improvement Co., 310 2 AP ys 11, 60 Smith v. O’Grady, 312 US 329........-.- eee cere reece ces 56 Smith v. Texas, 311 US 128......... cece cece cere ee ecees 56 Texas & Pacifie Ry. v. Murphy, 111 US 488. ....------0 +> 24 SARGERAS RE meg SEY tbe TaBLE OF AUTHORITIES CITED Vv Pages Sn NE Ti TI. So ip cas ocin pe dheddass sa chee eeeenene 29, 84 United States v. General Motors Corporation, 2 FRD 528.. 4 Voorhees v. Noye Mfg. Co., 151 US 135................4.. 24 Ward ¥. TORO, BEG Te GGG oss snd 6 oie eed csivicsuvendeecs a6 Weil v, Neary, B70 UG. WOO OF DODD oon 6 cick cccccvcvescines 46 Werner vy. Crippen, 245 App. Div. 363, 282 NY Supp. 722, SF Dy ee SE As cc his ci wee despise sheer sennaeees “4 Whitten v. Dabney, 171 Cal. 621. ........... cece eeeeees 17 Wichita Royalty Co. v. City National Bank of Wichita Pie, SOG TS SOR Oe BI oo hi viii ic ce Sone cnncecsestecs 11, 54 Codes and Statutes Act of Mar. 3, 1891, 26 Stat. 826, Chpt. 517, See. 3.2... .4, 44, 87 California Code of Civ. Proec., See. 2055. ..............46. 82 EE Br nccccawcedew eats ueks owrNapensieueeee as keke 76 ee I ck as eka sehc nes cent adeeshacahvnaeny 14, 81, 82 Se ens ok acd burg eee ee eaNheneN aha 76, 77 I Be gnc vc hee een own ced oe dean ka whe cekeedcsstex 23 We TE vou ct canlia KA a oe OES 4 ENE Res ae ee pn cea eee 23 got | RE arenes erm yey araeny mes pa Ararg 78 Oe Ge NE bigs einen ok sche nee nhes abe Rbaeeiens aha wia ee 84 OE PI ngs xd ch dda eat ¥h4 ced EON EMA CSRS ERE E ETS 78 Pe I SE oes ok Ki ok Sarg ees aaah awed sen ewieuesnure 76 Re See - hivoas Kee ou sc onebeoettaeev eNews ea weneen 23 Re RY, SOE os os he oh D ne ews SOL eke nnnws DekGweenn 76 GSR As nt on os ale ciate wae Side Ot Oe wee yee ei a Cediers 77 Oe Re as inka evened t Ka bod oviee en Caen a cen hanes 83 Be Ry I oer as Rees kee eh Se eS RARER eR 23 Se EE AE EW nen sad eee au odiec ranean snare Ow eee 23 OT Ie avons okarnk ed eek avaden es eee beawencomwan aan 20, 83 Bt of et | ee eae Se rrcrerre rirg rh eC 81 Se oe os Uo reas Cou ha eee eek eae Oran 23 Pi Eine rier erie Crass nee errr 23,47, 51 pe? 3 ere ener errr ery rarer sa ee ee 2, 23, 87 ANAT EK SSR GEER ARYA RE ROIS SR rt IESE SHER a a EU ETE ENTALION NIRIG DD EAE EINE EA CNN vi Tape or AutTHoRITIES CITED # Rules | Supreme Court: Pages i RIN ee PC net ile ites ie cktp loss 32 Of er canine ts 32 i MEE ee Ne Ces se eae GAs a dee ee Ts ee be 32, 52, 87, 89 ; Cireuit Court: Ne ee te SRY we 64s W sede 5s ay a he oe ake hal ghee 66 HEA S 2 bo 24a bh Oe 7 MORE En aecees ott e ees Wh aS Baty CUR SY sine agra Sm gee 24 RRP te nec gcreig a Gs kbc Xa a > o,0o Siva ba Boe 48 Federal Rules of Civil Procedure: Ce ka yy Wie bak ede Khia ad 67 Be vce cucleneaas SiMe oie ea bed passcdnesvacteve 14, 15 Na oo is Gh GS ne we vik Hes 2, 12, 20, 25, 26, 58, 60 RUNNIN ccs che ok 6 Se 4 uk BAe Bw 6.4 9 wr ae 18, 36, 39, 43, 74, 82 sr es oe eels ne bw ROA a halen ee 6 oR 18, 25, 43, 74 Ee kG ai a alg sas RENE SE RASS OEY 82 TR ea aera taal oes ah Waele Ran MOONS 24, 26, 48, 52, 53 TN ook ele ae a bans Cae brk Ue Ae Ae oo Rae 25, 43, 57 Texts and Miscellaneous American Law Institute—Address of Hon. Robert H. Jack- RR arteries ae ToT igihate ciea ee Wa ase A OS MNO ee 56 ae ae eked od eben te 64 asa wee VOdee ew heee bee 71 Democracy and Finanee—William O. Douglas, pp. 56, 234, PR re eee rrr ery Seer rr rrr s Pr reer 64, 72 Diseovery—Against Federal Administrative Agencies—Pike & Fischer (56 Harvard Law Rev. 1125)................. 84 Federal Administrative Procedure Act—proposed by Am. Bar Assn. (Journal issue of Apr. 1944, p. 228)........... 51 Jurisdiction of the Supreme Court of the United States— Robertson & Kirkham, p. 542................cccccceees 88 Law and Its Administration—Harlan F. Stone (Columbia University Press 1924), p. 2138................ cece eee 49 2 SPIT eS ; REAR ee I Bah Ane Re ad » ‘ eT NE ET a Me Lie Boe aR rh AES TABLE OF AUTHORITIES CITED Methods of Reaching and Preparing Appellate Court De- cisions-—published by Judicial Section of Am. Bar Assn. Pe EE iho SOL a ea kau RENE eRe oS eves a eeRs ot Report of Will Shafroth, Chief of Division of Procedural NE SI SIN Sloe cna Sa ci asd Seed eeke pao cae Statement of Hon. Louis D. Brandeis before Commission on Industrial Relations of 64th Congress, Ist Session— Senate Document Vol. XXVI, p. 7661 (1915)........... Supreme Court of the United States—Charles Evans Hughes (Columbia University Press), pp. 64-65......... Testimony of Justice Van Devanter on Senate Bill 2176, 74th Congress, Ist Session in 1935..................... The Business of the Supreme Court—Frankfurter & Landis, eM RENO SES AXEL ares Fan Sead GORY RSE Ls ches The Modern Corporation and Private Property—Berle & Re es DS ahah sul veuiula v ned va Wha tabi eas The Struggle for Judicial Supremacy—Robert H. Jackson (Alfred A. Knopf, 1941), pp. 293-294 Page 50 Sa) to eee eres ene © Hy PE RnR OR Ree BL RSE LENE NR EET Re TERETE PME CI STERN I CMTE Tie ITY an Sle SELLY TY PS BIDS Be LIE Le NT Ernest H. Denicke and Mary E. Doster, In the Supreme Court OF THE United States OctToser Term, 1943 Petitioners, vs. THe Ancio Carivornia Nationa Bank or San Francisco (a national banking association), Mortimer FLemsHHacker, Hersert Firisu- HACKER, Mortimer FLEISHHACKER, JR., GEORGE I. Cocnran, Pumire S. Baker, R. D. Bric- HAM, Water fk. Buck, Watter A. Haas, Paut KE. Hoover, Wittiam F. Humpnrey, SaMvueL Kaun, Victor Kuryxer, WituiaM B. Rets, Paut Suour, Leon Stross, Jr., Louis Sutter, ALrrep B. Swinerton, T. C. Tivven, JosepH QO. Topix, Wittarp ©. WayMan, | Irene L. Bere, Executrix of the will of Wil- liam H. Berg, Deceased, R. Staxuey Dotar and FRANK Moss, ) | | | Respondents. | PETITION FOR WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Ninth Circuit. z Ys 4 * % 3 ; 2 To the Honorable Harlan Fiske Stone, Chief Justice of the United States, and to the Honorable Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jack- son, and Wiley Rutledge, Associate Justices of the Supreme Court of the United States: This is an application under Section 240 of the Judicial Code (28 USCA 347) for a review, on certiorari, of the | following matter, viz: Case No. 10,329 (CCA 9th Cir.) entitled ‘‘ Ernest H. Denicke and Mary E. Doble, Appellants v. The Anglo California National Bank of San Francisco, et al., Appellees.”’ ; SUMMARY STATEMENT OF THE MATTER INVOLVED. We come to this Court with a record disclosing serious misconduct in the Circuit Court of Appeals for the Ninth Cireuit. There has been a miscarriage of justice. Certiorari is necessary to correct that condition. Nature of the Litigation. Petitioners are prosecuting a derivative suit on behalf of The Anglo California National Bank of San Francisco. Respondents are present and former directors charged with violations of Federal Banking Laws. The damages arise from breach of trust. The loss exceeds four million dollars. The District Court approved a settlement without mak- ing the inquiry required by Rule 23(c) FRCP. The bank engineered this proposal. It accepted five percent of the liability, thus obtaining a release for twenty-two of its directors. ® a S * | NE I SST ER of RIOR Nae RE EE OTE 3 Petitioners objected. They were denied a hearing. There were no findings. Judgment was entered without a trial. A motion to vacate was denied. Gross Irregularities in the Circuit Court. The Cireuit Court refused to decide the questions pre- sented. An irregular opinion was filed during adjourn- ment. This document was void, and in violation of Court rules because of the lack of a concurring signature. We present same as,— Petitioners’ Exhibit No. 1. Signature Clause Attached to ‘‘Opinion’’. ‘We need not stop to inquire whether the order denying appellants’ motion to vacate the judgment was appealable, for the opinion already sufficiently indicates our view that appellants had ample time and a reasonable opportunity to present a full show- ing in opposition to the compromise. We find no merit in other points argued. ‘* Affirmed. William Healy, United States Circuit Judges.”’ a 4 This document was prepared for the signatures of three ‘United States Circuit Judges’’. It was signed by one Circuit Judge. It was the act of Cireuit Judge Healy. It was not the act of the Circuit Court of Appeals for the Ninth Circuit. In that Circuit, the power of an individual judge is strietly limited during adjournment. He has no authority to announce a decision. He may join with one or more of his associates and vender a decision by filing signed opinions or other documents of decision with the clerk. There is no other procedure.? Litigants are entitled to documentary evidence, supported by the signatures of at least two Circuit Judges. This practice was established by an amendment of the rules effective November 30, 1936. That amendment was evidenced by a document signed by every member of the Court. We present same as our next exhibit. Werk of CCA refused to print a true copy of the opinion. In spite of our designation (R, 2070, item 8) the irregular sig- nature clause was left out. (R. 1996 at 2004.) The transcript is false in not showing the matter quoted on preceding page. We file, herewith, motion to correct diminution of record. 2Authority to adopt such rule granted by the Act providing for organization of the Cireuit Courts of Appeal. See: ‘Act of Mar. 3, 1891, 26 Stat. 826, Chap. 517, Sec. 2. ‘‘The court shall have power to establish all rules and regula- tions for the conduct of the business of the court within its jurisdiction as conferred by law.”’ Petitioners’ Exhibit No. 2. **Unitep States Circuit Court or APPEALS FOR THE NINTH Circu!r Ix THE MATTER OF THE AMENDMENT or Rue LU or tHe Ruues or PRACTICE OF THIS Court. Ir Is Heresy Orperep that Rule ILL of the Rules of Prac- tice of this Court be amended by the addition of a para- graph number (4) to said rule, as follows: (4) No adjournment in any of the terms of the Court shall be made to the succeeding term save when made on the last day prior to the beginning of such succeeding term. Appeals shall be deemed decided when announced from the bench in a session of the court at the place of the term in which they are submitted, or when the signed opin- ions or other documents evidencing their decision are filed with the Clerk. Dated: Nov. 30, 1936. (Signed) Curtis D. Wilbur Francis .. Garrecht (Endorsed ) William Denman Filed Nov. 30, 1936 Clifton Mathews Paul P. O’Brien, Clerk Bert Emory Haney “nited States Cireuit Judges.’”* 3Clerk of CCA disregarded our designation of this document (R. 2074, Item 8a.) We inelude it in our motion filed herewith to correct the record. The Court had a membership of five when this doeument was filed. Pore * SM AS Tarn as Te pare Fa Sa a Rae BRST poe RRS - ae ADORE TCR RE Paine ani ata In at Ma 6 Clerk’s Entries During Adjournment. The ‘‘opinion’’ was filed March 1, 1944. On the same day, the Clerk made an ‘‘Order’’ and entered a ‘‘ Decree’’. Both were unsigned. The Court was not in session. /t did not make any order. It did not direct the entry of any decrees Refusal to Vacate the ‘‘Decree’’. We moved to set aside these proceedings. (R. 2005.) Cireuit Judge Mathews presided. He was accompanied by Judge Healy—author of the opinion. The third member was absent." These two sat to pass upon their conduct in our case. Argument on the motion was cut short. Judge Mathews made the following statement from the Bench: ‘Rule 3, paragraph 5, is a rule made by this court for the guidance and protection of its clerk. Neither you nor your clients have any interest in enforcing that rule. /t isn’t any of your business whether that is complied with, or not.”’ (R. 2058.) Application for Reassignment in Bank. We sought an immediate reassignment to the Court in bank. By praecipe, the clerk was requested to present such ‘The clerk was involved in four distinct violations of duty on this date. 1. Entry of ‘‘Order Directing Filing of Opinion and Filing and Recording of Deecree’’. (R. 1995.) Court held no session—no signed document was furnished to sustain such entry. There was no transaction to enter. 2. The Healy Opinion was not in due form. The elerk vio- lated his duty to appellants in filing it. 3. Filing of ‘‘Deeree’’. Clerk took a printed form, filled in the blanks with typewriter, and filed it without signature. 4, Entry of ‘‘Decree’’ in Minute Book. (R. 2004.) The same document was then recopied after filing. 44Appeal was argued and submitted to Cireuit Judges Mathews, Stephens and Healy February 15, 1944. (R. 1994.) oe ae hee . . SRE A is Oe ee ee ea ny — ae % § bes e- & a | application to the senior judge for action under Rule 4 of the Cireuit Court. (R. 2014, 2015.) It was ignored. The docket fails to show whether it was presented, or withheld, or considered, or denied.” Denia] of Petition for Rehearing. We petitioned for a rehearing in bank. We asked for consideration of that petition in bank. It does not appear to have been examined by any judge not originally assigned to our case. Circuit Judges Mathews, Stephens and Healy sat to deny rehearing.® We now present the questions which the Cireuit Court refused to decide. Point No. 1. Denial of a Hearing in the District Court. We start with a flagrant violation of the Bill of Rights— the entry of a judgment without trial. The facts do not admit of dispute: "CCA Rule 4 reads,— ‘Assigning of Causes for Hearing. (1) The calendars of the court shall be made up by the clerk under the direction of the senior circuit judge subject to the approval of the majority of the judges. (2) The senior circuit judge after conference with the circuit judges shall designate and assign the judges who are to hear the causes placed upon the ealendars of the court: such designation or assignment may be modified or set aside by a majority of the judges.’’ *We request this Court to read the Petition for Rehearing at R. 2017. This document discloses deliberate failure to decide the questions presented on appeal. In spite of the misearriage of justice disclosed therein, it was impossible to obtain action from any judge who did not sit in the first instanee. Order denying rehearing is at R. 2061. 8 On March 19, 1942 the bank petitioned for approval of a settlement. (R. 314.) An order to show cause issued. (R. 329.) Petitioners objected. (R. 333, 340.) These pleadings raised factual issues requiring a hearing. On March 31, 1942 the bank presented its case on the petition. (R. 1845.) We moved for a nonsuit. (R. 1883.) The Court suggested that counsel submit the entire matter. 7 fas ei eat ‘S: 33 a” “4 i Xs Re en ae A discussion followed. Then the Court acted on its own initiative. It continued the petition until April 21, 1942, for 996 a ‘‘ further hearing b By this order, the petition was put on the calendar. SIR: Thereafter it was kept on the calendar. The Court made five subsequent orders. Kach postponed the date set for Ahad further hearing. The last one provided for a trial on August 18, 1942. Diseovery was conducted to prepare for that hearing. The bank was required to photostat ledger cards. (R. 393.) Petitioners employed an auditor. His report showed a loss 6March 31, 1942 Minute Order at R. 392; same facts are shown by clerk’s worksheet (R. 1937), and by closing entry in reporter's transcript. ( R. 1890.) 7April 13, 1942. ‘Ordered . . . further hearing on the motion to terminate proceedings, be continued from April 21, 1942, to May 5, 1942.’’ (R. 398-399.) May 1, 1942. ‘“ The judges responded by a filing an ex parte order to keep such matter out of the 4 transcript. We present that order as: ¢ Petitioners’ Exhibit No. 3. : “‘OrpER Re PREPARATION OF RECORD FOR CERTIORARI PuRPOSES Mr. Aaron M. Sargent, counsel for appellants, having requested the clerk to prepare a record for use upon peti- tion for writ of certiorari, in the above-entitled case, and to issue as a part of the certified record a photostatie copy of the opinion of this court, it is Ordered that the clerk prepare the record in the usual and customary manner, 5Photostat of entire Opinion, including irregular signature elause (R. 2070, item 8); also photostat of document evidencing amendment of rules signed by entire Court. (R. 2074, item 8a.) ‘FAS 22 Dated: San Francisco, California, April 14, 1944. Ciirton MaTHEws, United States Cireuit Judge. FrLep AvBerT LEE STEPHENS, Apr. 14, 1944 United States Circuit Judge. Paul P. O’Brien, Witiiam Heaty, Clerk. United States Circuit Judge.”’ (R. 2066.) The Clerk was requested to photostat and certify these records as separate documents. He refused.’* An incom- plete record has been transmitted to this Court. The body of the Opinion was printed. The signature clause was left out.'7 The clerk certified that the documents fur- nished were true copies of the originals.'* We then tested our right by motion. Circuit Judges Mathews, Stephens and Healy sat to deny that motion. No argument was permitted. Judge Mathews made the following statement from the bench: ‘‘We have here a so-called motion to obtain certified photostatic copies of designated records, in the case of Denicke and Doble against The Anglo California Na- tional Bank, No. 10329. We have examined this so- called motion. We find that it is simply a request to the Court that the Court require the clerk to do that 16Praecipe requesting such copies filed with clerk May 10, 1944—copy thereof included in motion to correct transcript. 17See IR. 2004 showing omission of signature. clause in print- ing of Opinion. 18(Jerk’s certificate to this Court (R. 2078) is obviously false. It states that the documents included are ‘‘full, true and cor- rect (copies) .. . as the originals thereof remain on file’’. SEPT LIELEL) DELIEND e002: 23 which we have told him not to do. We wont entertain this motion. The motion is denied.’’ We demanded a hearing. ‘““Mr. Sargent. I ask for my constitutional right to argue the motion. Judge Mathews. Motion denied. Court will be ad- journed. Mr. Sargent. / renew my request for my constitu- tional right to argue the motion. Judge Mathews. You have no such right as that. The Court will be adjourned.’ JURISDICTION. This Court has jurisdiction under Section 240 of the Judicial Code as amended by the Act of February 13, 1925. (28 USCA 347.) The Cireuit Court had jurisdiction under Section 128 of said code (28 USCA 225); the District Court had original jurisdiction under Section 24 thereof. (28 USCA 41.) Suit arose under the laws of the United States. It was an action to enforce directors’ liability created by the National Bank Act and Federal Reserve