Petition — Lake Livingston Washateria, Inc. v. Hasty

Supreme Court brief1978

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HAEL RODAK, JR., CLERK |

Supreme Court of the Rutted States

OCTOBER TERM, 1977

NO. @7-1235

LAKE LIVINGSTON WASHATERIA, INC., AND

LAKE LIVINGSTON WASHATERIA, ELIJAH W.

RATCLIFF, PROPRIETOR,

Petitioners

versus

ED HASTY AND METALLIC BUILDING

COMPANY,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

ELIJAH W. RATCLIFF

P.O. Box 862

Livingston, Texas 77351

Phone: 713 327-4948

~

a ee

A 8 Letter Service, inc., 327 Chertres St., New Orleans, Le. (504) 581-5555

INDEX

PAGE NO.

Is 6 dS doNeeeneedseeubedes ees iii

Ns ois ae eee we ae wean Cees 1

Ph inka Oeeedenk eddwneedseesedauecds 2

FOOT TT TTT TTT TET Tee 3

Constitutional and Statutory Provisions

EE cab ue eee aed 640 bsek se bas anbeeees 4

I 60 0's unk 0 0bb0 04:600460060500% 5

Grounds Sustaining Federal Questions:

Summary of Argument...............-+0005: 1]

Discussion of Facts and Authorities] ........... 11

Discussion of Facts and Authorities I]........... 13

Discussion of Facts and Authorities III.......... 15

Discussion of Facts and Authorities IV.......... 17

Discussion of Facts and Authorities V........... 18

Discussion of Facts and Authorities VI.......... 19

ii

IN DE X (Continued)

PAGE NO.

Discussion of Facts and Authorities VII ......... 21

Discussion of Facts and Authorities VIII......... 23

daa Dies are acer a ae nna ere ea 24

Ne ee ee eeu 25

APPENDICES:

ie. co oe ee eh Se eehueees bi aeka et A-l

Sc oc) cen dausduchessaveseees A-1

Memorandum and Recommendation............ A-2

Order of the United States Court of Appeals...... A-5

6c. ois con Ghee caer ee asians ee A-6

United States Constitutional Provisions.......... A-6

United States Code Statutory Provisions......... A-9

Federal Rules of Civil Procedure............... A-23

Federal Rules of Evidence.................... A-40

Texas Constitutional Provisions................ A-41

Texas Statutory Provisions ....... 2. cccccccces A-45

| PRERES ye oe ey Peery eae et Pn A-47

Certificate of Admission to State Bar........... A-A47

Certificate of Admission to a Federal Court Bar... A-48

American Judicature Society Certificate......... A-49

State Bar Enrollment Card for 1972-1973....... A-50

TABLE OF CITATIONS

PAGE NO.

SOURCE:

Cases Cited:

Ackerman v United States,

oo, ee 22

Beckman v Walter Kidde & Company,

316 F.Supp. 1321 (1970) ............. 7,8,10,15,24

Butler v Crockett Production Credit Association,

POP 23

Christensen v Foster, 297 S.W. 657 (1927)......... 22

Clausen & Sons, Inc., v Theo Hamm Brewing

aig SO ee Ie EM cw eee cccsccccevceces 12

Collins v. Maryland, 139 F.2d 877 (1974). .........

Conley v Gibson, 35 U.S. 41 (1957) .............. 10,11

Deras v Myers, 535 F.2d 541 (1975). ............. 14

Dewell v Lawson, 489 F.2d 877 (1974) ........... 12

Draper v Robinson, 106 S.W. 2d 825 (1937)........ 19

Eisler v Stritzler, 535 F.2d 148 (1976)............ 8,24

Englander v Kennedy, 424 S.W. 2d 505 (1968) ..... 16

iv

TABLE OF CITATIONS (Continued)

PAGE NO.

Fidelity Savings & Loan Association of Port

Arthur v Baldwin, 416 S.W. 2d 482 (1967)....... 17

Flaks v Koegal, 504 F.2d 702 (1974) ............. 8

Fleming v Simon, 397 F.Supp. 1202 (1975)........ 14,24

Galigher v Jones, 129 U.S. 193 (1899) ............ 9

Gilbert v General Motor Corporation,

RSS FBS FOF CADSR. 5 oc vccceeccccccchecsver 6

Gonzales v Southern Methodist University,

SSG FBad 16713 CIGISED. oso oe vec vesdevcsvens 14,24

Graff v Nieberg, 233 F.2d 860 (1956)............. 12

Helmers v Anderson, 156 F.2d 47 (1946).......... 10,11

Henry Newton,Inc., v H. Richards Oil Company,

SOS S.W. 2d SOS (19GB)... ccc rccsecces ree 18

Hollifield v Hilton, 515 S.W.2d 717 (1974). ........ 16

Homsby v Allen, 326 F.2d 605 (1964).......... 5

Houston Lumber Company v Wockenfuss,

TOG B.W. 2B TED CRGGS) « oc cccceccccccesscuus 20

Vv

TABLE OF CITATIONS (Continued)

PAGE NO

Huffman v Love, 494 S.W. 2d 591 (1973).......... 16

Jordan v Cartwright, 347 S.W. 2d 799 (1961) ...... 19

Kopka v Bell Telephone Co. of Pennsylvania,

ET TE ETE ETT TEE 9

Lefton v Hattiesburg, 333 F.2d 280 (1964) ........ 22

Lewis v Kugler, 446 F.2d 1343 (1971)............ 22

Lowe v McDonald, 221 F.2d 228 (1955) .......... 22

Martin v Duffie, 463 F.2d 464 (1972)............. 22

Manning v Ketchum, 58 F.2d 948 (1932).......... 22

Michigan Window Cleaning Co. v Martino,

a ecb cusccesccccccces 78

Mitchell v Texas Gulf Sulphur Co.,

ES £0 cd cu cescsccecccecess 9,24

Monroe v Pope, 365 U.S. 167 (1961) ............. 12

McFaddin v Cecil Ruby Company,

SS UE GOUIPED coccccccccccccccccces 15

McKelroy v Hamilton, 130 S.W. 2d 1114 (1939) .... 15

SS

vi vii

TABLE OF CITATIONS (Continued) TABLE OF CITATIONS (Continued)

PAGE NO. PAGE NO.

Nagler v Admiral Corporation, 248 F.2d 319 (1957). —:12 Westlake v Lucas, 537 F.2d 857 (1976) ........... 11,24

Reed v Siler, 439 S.W. 2d 466 (1969). ............ 9 Williamson v Kelley, 444 S.W. 2d 311 (1969)....... 16,18

Renwar Oil Company v Lancaster, Wisco Leasing, Inc., v Keller, 490 F.2d 545 (1974)... ll

ot Rk) PET TTT TT Te Te 22 ~e

SOURCE:

Sams v New York State Board of Parole, Statutes Cited:

ee ee, PE s- 6 6 06-00 ce te ctccaueuss 14

Title 28, United States Code, Section 242.......... 21

Sanders v Russell, 401 F.2d 224 (1968) ........... 22

Title 28, United States Code, Section 1254......... 2

Smith v Schlesinger, 513 F.2d 462 (1975) ......... 13

Title 28, United States Code, Section 1343....... 2,6,17,23

Southeastern Chemical & Gas Corp. v. South-

eastern Pipe Line Co., 369 S.W.2d 489 (1963) .... 19 Title 28, United States Code, Section 1443...... 2,5,6,17,23

Stringer v Ditzer, 313 F.2d 541 (1963)............ 5 Title 28, United States Code, Section 1446......... 2,5

Tolg v Grimes, 355 F.2d 96 (1966). ......... 065. 6 Title 28, United States Code, Section 1447....... 2,5,6,23

United States v Oregon State Medical Society, Title 28, United States Code, Section 1449......... 9

DP is Es bo cov bccersecccescunuens 12

Title 28, United States Code, Section 1651......... 2

United States v Price, .

383 U.S. 787 (1966)........... 10,20,21,23 Title 28, United States Code, Section 1652. ... 2,3,14,15,17

United States v Waddell, 112 U.S. 76 (1884) ....... 20 Title 25, United States Code, Section 2072. ........ -

West v Austin Netional Bank, Title 28, United States Code, Section 2101......... 2

ey es EP SPEED 6k bcccccccsceevuseets 15,16

TABLE OF CITATIONS (Continued)

PAGE NO.

Title 42, United States Code, Section 1981. . ., 2,3,5,9,14,18

19,21,22,23

Title 42, United States Code, Section 1982. 3,5,9,14,17,

18,19,21,22,23

Title 42, United States Code, Section 1983...., 3,5,9,12,14

17,18,19,21,22,23

Title 42, United States Code,

od et bebe eee es 6eNeu « 5,23

DEM. Bt, BCE oc cksccccccesscccen 59,19

Vernon’s Ann. Civ. St., Art. 1995 (14)............ 22

Vernon’s Ann. Civ. St., Art. 3833... ..... 3,5,9,16,17,19

Vernon’s Ann. Civ. St., Art. 3835....... 3,5,9,16,17,19,20

Vernon’s Ann. Civ. St., Art. 3836 ....... 3,5,9,16,17,19,20

Vernon’s Ann. Civ. St., Art.5452................ 19,20

Vernon’s Ann. Civ. St., Art.5453................ 19,20

Vernon's Ann. Civ. St., Art. 5469................ 19,20

Vernon’s Ann. Civ. St., Art. 6627................ 21

ix

TABLE OF CITATIONS (Continued)

PAGE NO.

U.S. Sup. Ce. Rule 19,28 U.S.C... 2... cece cence 10

Federal Rules Civ. Proc., Rule 4,28 U.S.C.......... 7

Federal Rules Civ. Proc., Rule 8, 28 U.S.C........ 10,12,23

Federal Rules Civ. Proc., Rule 12, 28 U.S.C......... 5,10,15

Federal Rules Civ. Proc., Rule 19, 28 U.S.C......... 8,10

Federal Rules Civ. Proc., Rule 24, 28 U.S.C......... 8

Federal Rules Civ. Proc ., Rule 33, 28 U.S.C... . 5,8,13,14,15

Federal Rules Civ. Proc., Rule 36, 28 U.S.C... . 5,6,7,8,13,15

20,21

Federal Rules Civ. Proc., Rule 37, 28 U.S.C... 5,7,8,13,15,21

Federal Rules Civ. Proc., Rule 55, 28 U.S.C... . 5,7,8,10, 11

13,15

Federal Rules Civ. Proc., Rule 56, 28 U.S.C..... . 5,7,8,10,11

13,15,23

Federal Rules Evid. Rule 201,28 U.S.C............ 22

Vernon’s Ann. Rules Civ.Proc., Rule 166-A......... 15

Vernon's Ann. Rules Civ. Proc., Rule 168........ 7,8,14,15

a a A

x

TABLE OF CITATIONS (Continued)

PAGE NO.

Vernon’s Ann. Rules Civ. Proc., Rule 169 ....... 6,7,8,15

Vernon’s Ann. Rules Civ. Proc., Rule215 ....... 7,8,14, 15

Vernon’s Ann. Rules Civ. Proc., Rule 239........ 14

Constitutional Provisions Cited:

United States Code, Const. Amend. V..... 25,9,17,18,19,23

United States Code, Const. Amend. VIII......... 2,5,23

United States Code, Const. Amend. XIII...... 2,5,17,18,19

United States Code, Const. Amend. XIV..... 2,5,9,17,18,19,

20,21,23

United States Code, Const. Amend.XV............ 2,5

Vernon’s Ann St. Const., Art. XVI, §50..... . 3,4,5,9,17

Vernon’s Ann. St. Const., Art. XVI, §51..... 3,4,5,9,16,17

Textual and Other Authorities Cited:

Fuller, Basic Contract Law, West Publishing

Company, St. Paul, Minn. (1947) .............. 19

Lavine and Horning, Manual of Federal

Practice, McGraw-Hill Book Company (1967)... .12,13,14

xi

TABLE OF CITATIONS (Continued)

PAGE NO.

Smith and Prosser, Cases and Materials on Torts,

The Foundation Press, Inc., Brooklyn (1957)... .. 8

oe ee re 22

RE a i a ah Ne Coe 9,22

Tree 9

BR Se I BE a no ov vdicccucccccccstecs 9

re 9

Er Ce SS 05065b04edsneaebeeeernds 11,19

Sr MENS 5 6¢-cdecduwas sonwesecenased 11,19

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1977

NO.

LAKE LIVINGSTON WASHATERIA, INC.,

AND LAKE LIVINGSTON WASHATERIA,

ELIJAH W. RATCLIFF, PROPRIETOR,

Petitioners

versus

ED HASTY AND METALLIC BUILDING COMPANY,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE WARREN E. BURGER, CHIEF

JUSTICE, AND THE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

OPINIONS BELOW

The United States District Court for the Southern Dis-

trict of Texas, Houston Division, under CA No. 73-H-875,

entered a Memorandum and Order on the 27th day of July,

A.D., 1977, and a Final Judgment on the 29th day of July,

A.D., 1977, dismissing the cause of action upon which this

review is based. Both plaintiffs, Complainant and Intervenor,

in such action properly appealed against both defendants,

Respondents, to the United States Court of Appeals for the

Fifth Circuit which Court of Appeals affirmed the United

States District Court on the 29th day of December, A.D.,

1977, under docket No. 77-2769.

ee

2

The decisions of the lower courts are not reported, but

copies of the Memorandum and Recommendation and the

Final Judgment of the United States District Court as well as

the Order of the United States Court of Appeals are attached

hereto as Appendix A.

JURISDICTION

The United States District Court judgment was in the form

of a Memorandum and Recommendation rendered and filed

on the 27th day of July, A.D., 1977, and a Final Judgment

rendered and filed on the 29th day of July, A.D., 1977, by

Judge John V. Singleton, Jr., adopting such Memorandum

and Recommendation.

The Final Judgment of the United States District Court

was affirmed by an unpublished Order of the United States

Court of Appeals for the Fifth Circuit on the 29th day of

December, A.D., 1977.

No motion for rehearing or extension of time prerequisite

to this Petition for Writ of Certiorari have been presented.

Authority for the Supreme Court of the United States to

grant the relief sought hereby derives through Title 28,

United States Code, Section 1254(1) and consistent with

Title 28, United States Code, Section 2101(c). Such juris-

diction is supported by Title 28, United States Code, Sec-

tions 1343, 1443, 1446, 1447(d), 1651, 1652 and 2072, as

well as Title 42, United States Code, Sections 1981-1995,

inclusive, and United States Code, Const. Amend. V, VIII,

XIII, XIV and XV.

3

The proceeding is a civil rights action in nature arising out

of conduct by Respondents through violence and threats of

violence in trespassing upon and fostering trespasses upon

premises belonging to Petitioners at Onalaska, Polk County,

Texas which held homestead status under the Constitution

and laws of the State of Texas. Vernon’s Ann. Civ. St.,

Art. 3833, 3835 and 3836, Vernon’s Ann. St. Const., Art.

XVI, §§50 and 51; Title 28, United States Code, Section

1652; Title 42, United States Code, Sections 1981, 1982 and

1983.

QUESTIONS PRESENTED

1. Whether the Complaint and the First Amended Com-

plaint by Intervention filed in the subject action stated a

cause of action upon which relief may be granted.

2. Whether default judgment against Respondent Ed

Hasty was the proper sanction for his refusal to honor pro-

cedural prescriptions of the State and Federal rules of pro-

cedure over a period of time exceeding three years.

3. Whether the subject premises at Onalaska, Polk County,

Texas occupied homstead status in favor of the agent for

Lake Livingston Washateria, Inc., or another holder of a

possessory interest with such Respondent Corporation.

4. Whether the subject premises were exempt from fore-

closure or judicial sale in the absence of an agreement in

writing signed by Petitioners as its owners to pay for alleged

improvements on such premises.

5. Whether the actions of Respondent Ed Hasty and his

4

employees in trespassing on Petitioners’ premises at Onalaska,

Polk County, Texas while threatening harm to the occupants

with deadly weapons comprised a violation of such Petition-

ers’ civil rights.

6. Whether Petitioners have now or at any time material

to the instant litigation possessed a remedy which could be

rationally and reasonably enforced through the State courts

of Texas.

7. Whether summary judgment should have been granted

in favor of one or both Petitioners against Respondent Ed

Hasty because no genuine issue as to any material facts was

presented with respect to the United States District Court.

8. Whether the failure of Respondent Metallic Building

Company to comply within a reasonable time with its con-

tract to properly construct a washateria building for Petition-

ers’ predecessors entitled Petitioners to damages against such

Respondents.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Constitutional bases upon which Petitioners rely in

substance are United States Code, Const. Amend. V, VIII,

XIII, XIV and XV which collectively are space consuming so

their complete text is limited to the contents of Appendix B

2 to 4.

Underlying the Constitutional claim is Vernon’s Ann. St.

Const., Art. XVI, §§ 50 and 51, and related enabling statutes

which control homestead status of realty in the State of

5

Texas, the text of which is similarly limited to Appendix B

39 to 40 and B 41 to 44. Vernon’s Ann. Civ. St., Art. 3833,

3835 and 3936; Vernon’s Ann. St. Const., Art. XVI, §%0

and 51.

The Federal jurisdictional claim asserted by Petitioners is

set forth by Title 28, United States Code, Sections 1343,

1443, 1446, 1447(d), 1449 and 1652 and Title 42, United

States Code, Sections 1981-1995, inclusive, in addition to

Federal Rules Civ. Proc., Rules 8(a), 12(c), 12(e), 33, 36 and

37(d); 55 and 56, 28 U.S.C., each of which is set forth ver-

batim at Appendix B. 5 to 38.

Standards of conduct related to other Texas statutory laws

are non-jurisdictional and ancillary to this proceeding, and

verbatim revitation of their contents appears inappropriate

for this Petition. However, V.T.C.A., Bus. & C., $26.01, in-

cludes certain controlling standards applicable to the facts so

its contents are included verbatim at Appendix B. 44 to 45.

STATEMENT OF CASE

The instant litigation arises out of civil rights violations

engaged by Respondent Ed Hasty of Conroe, Montgomery

County, Texas entering upon realty owned by Petitioners at

Onalaska, Polk County, Texas under color of authority of

State law inconsistent with Petitioners. rights to receive and

hold realty assured and granted by Title 42, United States

Code, Sections 1981-1995, inclusive, and United States Code,

Const. Amend. V, VIII, XIII, XIV and XV.

The cause of action is permitted by Title 28, United States

Code, Sections 1343 and 1443, and it is supported proxi-

mately by Title 28, United States Code, Sections 1446,

1447(d), 1651 and 1652, in addition to the relevant proce-

dural authorities under Section 2072 of such Title. Stringer v

Ditzer, 313 F.2d 541 (1963); Hornsby v Allen, 326 F.2d 605

(1964).

The action was filed in the United States District Court

6

for the Southern District of Texas as a removal action and

docketed as CA No. 72-H-1221 on the 8th day of September,

A.D., 1972, at which point Respondent Metallic Building

Company was not a party. Title 28, United States Code,

Section 1443. The United States District Court refused to

exercise jurisdiction of the removal proceeding, and a remand

order was entered by Judge Carl O. Bue, Jr., on the 8th day

of November, A.D., 1972.

It appears from the constructive admissions of Respondent

Ed Hasty that the pending jurisdiction of the United States

District Court was disregarded, and he proceeded on his

design to deprive Petitioners of their realty previously re-

ferred to (Tr. Items 17 and 17b). Vernon’s Ann. Rules Civ.

Proc., Rule 169; Federal Rules Civ. Proc., Rule 36, 28 U.S.

C.; Gilbert v General Motors Corporation, 133 F.2d 997

(1943), cert. den. 319 U.S. 743, 87 L.Ed. 1700.

Without knowledge of the specific activities and intentions

of Respondents regarding the legal controversy, Petitioners

contemplated that further interference with their property

rights would be attempted. Therefore, injunctive relief

was sought from the United States District Court for the

Southern District of Texas, CA No 73-H-875, without join-

ing Respondent Metallic Building Company as an initial party

(Tr. Item 1). Title 28, United States Code, Sections 1343

and 1447(d); Tolg v Grimes, 355 F.2d 92 (1966), cert. den.

384 U.S. 988, 16 L.Ed. 2d 1005.

A delay of two months occurred between the date the

Complaint was presented in April, 1973, until it was filed

for processing on June 25, 1973, while the United States

District Court considered the merits of filing it, in spite of

7

the fact Counsel for such Petitioner-Complainant was an at-

torney in good standing with the State Bar of Texas who had

been admitted to practice before the subject United States

District Court on the 23rd day of June, A.D., 1966 (See

Appendix C). Federal Rules Civ. Proc., Rule 4, 28 U.S.C.

Petitioner Lake Livingston Washateria, Inc., served inter-

rogatories on Respondent Ed Hasty on the 12th day of

July, A.D., 1973, and served a Request for Admissions on

such Respondent on the 10th day of November, A.D., 1973,

but the subject Respondent defaulted with respect to the

Request for Admissions and refused to answer the interroga-

tories over a period of time exceeding three years (Tr. Items

4 and 17a; and 17 and 17b). Vernon’s Ann. Rules Civ. Proc.,

Rules 168 and 169; Federal Rules Civ. Proc., Rules 33, 36

and 37(d), 28 U.S.C.

After filing Affidavits of Homestead by interested citizens

of Onalaska, Polk County, Texas on November 2, 1973,

substantiating certain ones of the same factual elements

covered by the interrogatories and Request for Admissions

to Respondent. Ed Hasty, Petitioner Lake Livingston Washa-

teria, Inc., again sought relief in the form of a Motion for

Summary Judgment with Notice on November 29, 1973

(Tr. Items 7, 10, 11 and 12). Vernon’s Ann. Rules Civ. Proc.,

Rule 215; Federal Rules Civ. Proc., Rules 37(d), 55 and 56,

28 U.S.C.; Michigan Window Cleanin« Co. v Martino, 173 F.

2d 466 (1949); Beckman v Walter Kidde & Company, 316 F.

Supp. 1321 (1970).

On March 16, 1977, after complications appreciated from

the status of Petitioner Lake Livingston Washateria, Inc., as

a franchised entity under the laws of the State of Texas, a

8

Motion for Leave to Appear and First Amended Complaint

by Intervention was filed adding Petitioner Lake Livingston

Washateria, Elijah W. Ratcliff, Proprietor, as a plaintiff (Tr.

Items 15 and 16). Federal Rules Civ. Proc., Rule 24(a), 28

U.S.C.

Such Petitioner-Intervenor proceeded to serve a Request

for Admissions and interrogatories on Respondent Ed Hasty

on March 26, 1977, to which such Respondent again default-

ed and refused to answer as prescribed by the State and

Federal rules of procedure (Tr. Items 17 and 17b). Vernon’s

Ann. Rules Civ. Proc., Rules 168, 169 and 215; Federal Rules

Civ. Proc., Rules 33, 36, 37(d), 55 and 56, 28 U.S.C.; Michi-

gan Window Cleaning Co. v Martino, 173 F.2d 466 (1949);

Beckman v Walter Kidde & Company, 316 F.Supp. 1321

(1970); Flaks v Koegal, 504 F.2d 702 (1974); Eisler v Stritz-

ler, 535 F.2d 148 (1976).

The various interrogatories to Respondent Ed Hasty soli-

cited clarification of the relationship with respect to his

conduct with that of Respondent Metallic Building Company

pertinent to the facts so in the absence of clarification or a

discovery order from the United States District Court, a

Motion for Leave to File Petition to Implead Respondent

and Petition to Implead Respondent were presented to such

United States District Court on the 8th day of June, A.D.,

1977 (Tr. Items 23 and 24). Federal Rules Civ. Proc., Rule

19(a), 28 U.S.C.

The prevailing facts were that Respondent Ed Hasty made

numerous intrusions and trespasses against Petitioners’ pre-

mises at Onalaska, Polk County, Texas (Tr. Item 10). Young

B. Smith, Cases and Materials on Torts, The Foundation

9

Press, Inc., (2d Ed. 1957), pp 75-87; Kopka v Bell Telephone

Co. of Pennsylvania, 371 Pa. 444 (1932), 91 A. 2d 232;

Galigher v Jones, 129 U.S. 193 (1889), 32 L. Ed. 658; Mit-

chell v Texas Gulf Sulphur Company, 446 F.2d 90 (1971).

Such actions were taken under color of authority of State

law while such conduct in fact violated the rights of Petition-

ers to receive and hold realty. Vernon’s Ann. Civ. St., Art.

3833, 3835 and 3836; V.A.T.C., Bus. & C., § 26.01(6);

Vernon’s Ann. St. Const., Art. XVI,§§ 50 and 51; Title 42,

United States Code, Sections 1981, 1982 and 1983; United

States Code, Const. Amend. V and XIV; Reed v Siler, 439

S.W. 2d 466 (1969).

Respondent Ed Hasty accompanied by other parties oper-

ating subordinate to him, the franchised representative of

Respondent Metallic Building Company, ultilized deadly

weapons and threats of violence to force Petitioners’ evacu-

ation of the subject premises (Tr. Items 1, 4, 16, 17, 17a,

and 17b), while influenced by knowledge that Petitioners

possessed no remedy at law which the State courts of Texas

would enforce to protect the vested rights of Petitioners

(Tr. Items 1, 15 and 16). 29 Am Jur 2d § 59; 31 C.J.S.

Evidence § § 10,28 and 30; Title 42, United States Code,

Sections 1981, 1982 and 1983.

Respondent Ed Hasty notoriously maintained his inter-

ference with the subject premises in violation of Petitioners’

civil rights from the initial intrusion during the calendar year

1973 to the present time resulting in indolence and damages

as set forth by Petitioners pleadings (Tr. Items 1, 15, 16, 23

and 24). Vernon’s Ann. Civ. St., Art. 3833, 3835 and 3836;

Vernon’s Ann. St. Const., Art. XVI, § §50 and 51; Title 42,

United States Code, Sections 1981, 1982 and 1983.

10

Federal questions were clearly raised by the pleadings of

Petitioners (Tr. Items 1, 15, 16, 23 and 24), but the United

States District Court erroneously dismissed the action for

failure to state a claim upon which relief could be granted

(Tr. items 37 and 38), and the United States Court of Ap-

peals for the Fifth Circuit affirmed such judgment (Appen-

dix A). Federal Rules Civ. Proc., Rules 8(a), 12(c) and 12(e);

U.S. Sup. Ct. Rule 19(1)(b), 28 U.S.C.; Helmers v Anderson,

156 F.2d 47 (1946), affirmed 331 U.S. 461, 91 L.Ed. 616.

GROUNDS SUBSTANTIATING FEDERAL QUESTIONS

The Final Judgment entered by the United States District

Court represents the precise inverse of indicated justice as

Petitioners were entitled to a default of summary judgment

against Respondent Ed Hasty as a matter of law. Federal

Rules Civ. Proc., Rules 12(c), 55 and 56(a), 28 U.S.C.; Beck-

man v Walter Kidde & Company, 316 F. Supp. 1321 (1970).

Such Respondent presented no evidence controverting the

homestead claim by Petitioners, and the Final Judgment dis-

regards the primary and ultimate Civil Rights evidence, and

issues set forth by Appellants. Federal Rules Civ. Proc..,

Rules 8(a), 12(c), 12(e), 55 and 56(a), 28 U.S.C.; Title 18,

United States Code, Section 242; Vernon’s Ann. St. Constr.,

Art. XVI, §§ 50 and 51; Conley v Gibson, 355 U.S. 41

(1957), 2 L.Ed. 2d 80; United States v Price, 383 U.S. 787

(1966), 16 L.Ed. 2d 267.

While Petitioners pre-trial evidence had not linked Respon-

dent Metallic Building Company concretely to the Civil

Rights conspiracy against them, its liability to Petitioners

under third party beneficiary principals was clearly invoked,

and such Respondent suggested by the tone of its procedures

1]

herein a role it played in the Civil Rights violations contrived

by Respondent Ed Hasty. 17 Tex Jur 2d §$54 and 55; Fed-

eral Rules Civ. Proc., Rules 55 and 56, 28 U.S.C.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITEES I

The pleadings of both Petitioners, Lake Livingston Washa-

teria, Inc., and Lake Livingston Washateria, Elijah W. Rat-

cliff, Proprietor, set forth a cause of action against Respon-

dents upon which relief may properly be granted, in accor-

dance with Rules 8(a), 12(c) and 12(e), 55 and 56 Federal

Rules of Civil Procedure. Conley v Gibson, 355 U.S. 41

(1957), 2 L.Ed. 2d 80; Wisco Leasing, Inc., v Keller, 490 F.

2d 545 (1974); Westlake v Lucas, 537 F.2d 857 (1976).

Jurisdiction of the United States District Court is based

upon Title 28, United States Code, Sections 1343 and 1443,

as the latter section is supported by the provisions of Title

28 United States Code, Section 1447(d), making Civil Rights

removal actions reviewable by appeal or otherwise, and the

cause of action alleged relied upon Title 42, United States

Code, Section 1981-1994, inclusive, and United States Code,

Const. Amend. V, VIII, XIII, XIV and XV, for its substance.

Helmers v Anderson, 156 F.2d 47 (1946), affirmed 331 U.S.

461, 91 L.Ed. 616.

The evidence obtained and accumulated through pre-trial

procedures was not as detailed and repetitious as trial would

have produced, and the record as a whole depicts the prelim-

inary and continuous lack of cooperation on the part of Res-

pondent Ed Hasty with respect to Procedural and discovery

efforts or otherwise facilitating a prompt disposition of the

litigation.

12

Rule 8(a), Federal Rules of Civil Procedure, requires that

a claim for relief shall contain a short and plain statement of

the grounds upon which the Court’s jurisdiction depends; a

short and plain statement of the claim showing that the plea-

der is entitled to relief; and a demand for judgment including

the relief to which he deems himself entitled (Tr. Items 1 and

16). These requirements were satisfied by the pleadings of

both Petitioners. There is no requirement that Federal plea-

dings state facts, ultimate facts or facts sufficient to consti-

tute a cause of action. Federal pleading is ‘‘notice”’ pleading.

A generalized summary of the case that affords fair notice is

all that is required. Lavine and Horning, Manual of Federal

Practice, McGraw Hill Book Company § 3.7 (1967), page

243; Nagler v Admiral Corporation, 248 F.2d 319 (1957).

Title 28, United States Code, Section 1343, expressly

vests the United States District Courts with jurisdiction of

civil actions to redress the deprivation, under color of State

law, statute, ordinance, regulation, custom or usage, of any

right, privilege or immunity secured by the Constitution or

Federal statutes providing for equal rights of citizens or of

all persons within the jurisdiction of the United States,

Title 42, United States Code, Section 1983; Graff v Nieberg,

233 F. 2d 860 (1956); Clausen & Sons, Inc., v Theo Hamm

Brewing Co., 395 F.2d 402 (1968); Dewell v Lawson, 489

F.2d 877 (1974).

Thus, jurisdiction is clearly invoked by the pleadings of

petitioners, and the refusal of the United States District

Court to honor the jurisdiction suggests that it became con-

fused by the dilatory tactics of Respondents throughout the

record. United States v Oregon State Medical Society, 343

U.S. 333 (1951); Monroe v Pope, 365 U.S. 167 (1961).

13

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES Il

Default judgment against Respondent Ed Hasty was the

proper remedy and sanction for his procedural deficiencies

and neglect including his failure to answer interrogatories,

respond to requests for admissions or present objections to

either over an inconceivably unreasonable period of time.

Federal Rules Civ. Proc., Rules 33, 36,37(d) and 55, 28 U.S.

ad

The first phase of this argument summarizes the frame-

work of written interrogatories (Tr. Items 4 and 17a).

Where a party willfully fails to serve answers to interroga-

tories submitted pursuant to Rule 33, Federal Rules of Civil

Procedure, after proper service of such interrogatories, the

Court on motion and notice is authorized to strike out all

or any part of any pleading of such party or enter a judgment

by default against that party. Lavine and Horning, Manual of

Federal Practice, McGraw-Hil Book Company § 5.230

(1967), page 529; Federal Rules Civ. Proc., Rules 37(d) and

55, 28 U.S.C.; Smith v Schlesinger, 513 F.2d 462 (1975).

If a party feels he should not answer interrogatories, he

should take conventional and affirmative steps and not ex-

pose himself to an unintended judgment or order limiting

proof because of his refusal. Collins v Wayland, 139 F.2d

667 (1944).

The second element of discovery which has been engaged

in this proceeding is the request for admissions (Tr. Items 17

and 17b). This element is extremely valuable in preparing

for trial in that it permits withdrawal of issues of fact from

the trial by forcing the other party to admit such facts before

14

trial. A failure to admit or deny within the time prescribed

constitutes an admission. Lavine and Horning, Manual of

Federal Practice, McGraw-Hill Book Company §5.13 (1967),

page 403; Federal Rules Civ. Proc., Rule 36.

Unlike Rule 33, the language of Rule 36 does not require

an order preliminary to legal effectiveness of request for ad-

missions.

It is, furthermore, pertinent that the procedural and dis-

covery inaction of Respondent Ed Hasty is violative of com-

parable State standards which allow a shorter time within

which to demand a response from the party upon whom a

request for admissions is served pursuant to Rule 169, Texas

Rules of Procedure, and interrqgatories are served pursuant

to Rules 168, 215 and 239, Texab Rules of Cwil Procedure.

Title 28, United States Code=eMtion 1652; Sams v New

York State Board of Parole, 352 F.Supp. 296 (1972); Deras v

Myers, 535 F.2d 541 (1975); Title 42. United States Code,

Sections 1981, 1982 and 1983; Fleming v Simon, 397 F.

Supp. 1202 (1975); Gonzales v Southern Methodist Universi-

ty, 536 F.2d 1071 (1976).

Petitioner Lake Livingston Washateria, Inc. served interro-

gatories on Respondent Ed Hasty in compliance with Rule

33, Federal Rules of Civil Procedure, and with Rule 168,

Texas Rules of Civil Procedure, on the 12th day of July, A.

D., 1973 (Tr. Item 4). Such Petitioner, also, served a re-

quest for admissions on Respondent Ed Hasty in compliance

with Rule 36, Federal Rules of Civil Procedure, and “Rule

169, Texas Rules of Civil Procedure, on the 10th day of

November, A.D., 1973 (Tr. Item 17).

Petitioner Lake Livingston Washateria, Elijah W. Ratcliff,

Proprietor, served interrogatories and a request for ad-

15

missions on Respondent Ed Hasty in compliance with Rules

33 and 36, Federal Rules of Civil Procedure and Rules 168

and 169 on the 26th day of March A.D. 1977 (Tr. Items 17a

and 17b).

However, such Respondent refused to answer the describ-

ed interrogatories or respond to the indicated requests for

admissions as prescribed by applicable law and did not speci-

fy any objection to either discovery effort which neglect

warranted default and summary judgment upon the pleadings

(Tr. Items 1, 6, 7, 15, 16 and 30). Federal Rules Civ. Proc.,

Rules 12(c), 33, 36, 37(d), 55 and 56, 28 U.S.C.; Vernon’s

Ann. Rules Civ. Proc., Rules 166-A, 168, 169 and 215;

McFaddin v Cecil Ruby Company, 238 S.W. 2d 847 (1951);

Title 28, United States Code, Section 1652; Beckman v

Walter Kidde & Company, 316 F. Supp. 1321 (1970), af-

firmed 451 F.2d 593, certiorari denied 408 U.S. 922.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES Il

The premises in question which served as the object of

the intrusion by Respondent Ed Hasty held homestead status

which was traced to the calendar year 1942 (Tr Items 1 and

10). McKelroy v Hamilton,130 S.W. 2d 1114 (1939); West v

Austin National Bank, 427 S.W. 2d 906 (1968).

The facts are that the premises obtained homestead sta-

tus immediately following its purchase by J. W. Ratcliff

from George Qualls on the 2nd day of September, A.D.,

1942 (Tr. Item 10).

The premises were assigned to Lorenzo Ratcliff, the

rr reece

16

brother of J.W. Ratcliff, without written agreement as head

of the household including the parents of J.W. Ratcliff fol-

lowing the moving of J.W. Ratcliff and family to Corrigan,

Polk County, Texas, during the calendar year 1950. No

other homestead was elected by J.W. Ratcliff and family,

and homestead status remained attached to the premises

through the data of the intrusion by Respondent Ed Hasty

herein. Vernon’s Ann. Civil St. Art. 3833, 3835, and 3836.

The Texas Constitutional provision applicable to the rural

homestead controlled the subject premises as the tract at

Onalaska, Polk County, Texas was not within a town or city.

Vernon’s Ann. St. Const., Art. XVI, $51. Of ancillary rele-

vance, also, is the fact that the tract purchased by J.W. Rat-

cliff at Corrigan, Texas was not within a city, town or village,

and when combined with the trail, both did not exceed two

hundred (200 ac.) acres. Nor, for academic purposes, did

they exceed the valuation limit defined by Vernon’s Ann.

St. Const., Art. XVI, $51. Huffman v Love, 494 S.W. 2d

591 (1973).

Still further, no other realty acquired by the family of J.

W. Ratcliff served to defeat or supercede the homestead

status of the subject premises at Onalaska, Polk County,

Texas. West v Austin National Bank, 427 S.W. 2d 906

(1968); Hollifield v Hilton, 515 S.W. 2d 717 (1974). Nor did

the conveyance to Petitioner Lake Livingston Washateria,

Elijah W. Ratcliff, Proprietor, on the 6th day of February,

A.D., 1971, defeat or terminate the homestead character,

being the son of J.W. Ratcliff Vernon’s

Englander v Kennedy, 424 S.W. 2d 505 (1968); Williamson

v Kelly, 444 S.W. 2d 311 (1969); Hollifield v Hilton, 515 S.

W. 2d 717 (1974).

17

The premises were utilized for the purpose of a home and

a place to exercise the calling or business of the Head of a

family before and after the conveyance, and since homestead

status was intended in each instance, no differentiation is

applicable. Vernon’s Ann. Civ. St., Art., 3833(a) (2), 3835

and 3836; Title 28, United States Code, Sections 1343, 1443

and 1652; Title 42, United States Code, Sections 1982 and

1983; United States Code, Const. Amend. V, XIII and XIV.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES IV

V.T.C.A., Bus. & C., §26.01(a) and (b)(2), (4) and (6),

expressly requires that contracts affecting real estate for

longer than one year shall be in writing. Yet Respondents

have not suggested an iota of evidence to show an agreement

in writing binding Petitioners Lake Livingston Washateria,

Inc. or Lake Livingston Washateria, Elijah Ratcliff, Proprie-

tor.

Of related materiality hereto are the provisions of Article

XVI, $50 and 51 of the Texas Constitution that except the

homestead from forced sale for the payments of all debts,

except for the purchase money therefor, or a part of such

purchase money; taxes due thereon; or for work and material

used in constructing improvements thereon, when contracted

in writing. Fidelity Savings & Loan Association of Port

Arthur v. Baldwin, 416 S.W. 2d 482 (1967). Vernon's Ann.

Civ. St., Art. 3835 and 3836; Vernon’s Ann. St. Const., Art.

XVI §§50 and 51.

As there was no contract in writing between either of

Petitioners and Respondent Ed Hasty, it is well settled that

eee a ee

18

he could not defeat the homestead status, which had attach-

ed to the premises over a quarter century, and effect a forced

or judicial sale. Williamson v Kelly, 444 S.W. 2d 311 (1969);

Hollifield v Hilton, 515 S.W. 2d 717 (1974); Title 42. United

States Code, Sections 1981, 1982 and 1983; United States

Code, Const. Amend. V, XIII and XIV.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES V

A written contract form was in fact executed and signed

by Respondent Ed Hasty as ‘‘salesman”’ and “‘representative”’

for Metcon Commercial Builders, Inc., the frenchised dealer

for Respondent Metallic Building Company, binding James

A. Stevens of Livingston, Texas, who was the predecessor of

Appellant Lake Livingston Washateria, Inc., on the 25th day

of February, A.D., 1971 (Tr. Items 4, 17, 17a and 17b). No

steps were taken in performance of this agreement, and the

original principal discontinued the venture. Henry Newton,

Inc., v H. Richards Company, 385 S.W. 2d 893 (1965).

It was discovered later that Metcon Commercial Builders,

Inc. had forfeited its corporate franchise and was no longer

functioning. (Tr. Item 4 Paragraph IX, and Item 17, Para-

graphs III, IV, V, VI, VII, VIII, IX and X).

Several months after the time had lapsed for initiating con-

struction as contemplated by the agreement of February 25,

1971, Respondent Ed Hasty initiated construction of a build-

ing on the gubject premises without seeking or obtaining the

approval of anyone connected with ownership of the pre-

mises and proceeded to lay a crumbly slab and construct a

building with a roof which leaked (Tr. Item 17, Paragraphs

19

IX, X, and XI).

It is noteworthy that no demand was ever made on Peti-

tioners or any of their authorized representatives, to pay any

construction costs, but Respondent Metallic Building Com-

pany refused Petitioner’s request for an adjustment of con-

tractual and construction framework, and Respondent Ed

Hasty proceeded to intrude upon the premises in violation of

the homestead sanctity and Civil Rights of Petitioners (Tr.

Item 17, Paragraphs XI, XII, XVIII, XIX, XXI, and XXII).

Vernon’s Ann. St., Art. 3833, 3835, and 3836; Vernon’s

Ann. St. Const., Art. XVI $850 and 51; Vernon’s Ann. Civ.

St., Art. 5452, 5453, and 5469; V.T.C.A., Bus. & C.,§ 26.01;

Title 42, United States Code, Sections 1981, 1982, and 1983;

United States Code, Const. Amend. V, XIII and XIV.

It is beyond dispute that Respondent Metallic Building

Company was the supplier of building material for Metcon

Commercial Builders, Inc., and Petitioners maintain that such

Respondent is liable to Petitioners for damages to the extent

of its participation in joint neglect to provide supplies result-

ing in damages to Petitioners. Fuller, Basic Contract Law,

West Publishing Co., St. Paul, Minn. (1947), page 555; 17

Tax Jur 2d §§54 and 55; Draper v Robinson, 106 S.W. 2d

825 (1937); Jordan v Cartwright, 347 S.W. 2d 799 (1966);

Southeastern Chemical & Gas Corp. v Southeastern Pipe Line

Co., 369 S.W. 2d 489 (1963).

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES VI

As though blinded by a passion, Respondent Ed Hasty

embarked upon a plan to deprive Petitioners of the subject

20

premises at Onalaska, Polk County, Texas consisting of the

Southwestern one-half (%) of a three (3 ac.) acre tract of

land originally conveyed by George Qualls of Onalaska, Polk

County, Texas to J. W. Ratcliff, then of Onalaska, Polk

County, Texas, as recorded at Volume 257, page 92, of the

Polk County, Texas Deed Records (Tr. Item 1). Houston

Lumber Company v Wockenfuss, 386 S.W. 2d 330 (1965).

Such Respondent did not furnish Petitioners any kind of

constitutional notice of his intention to claim title to the

subject premises, but entered thereon through threats of vio-

lence while displaying firearms and other deadly weapons

during April of 1973. WVernon’s Ann. Civ. St., Art. 3833,

3835, 3836, 5452, 5453 and 5469; Title 42, United States

Code, Const.,Amend XIV; United States v Waddell, 112 U.S.

76 (1884); 28 L.Ed. 673; United States v Price, 383 U.S.

787 (1966) 16 L.Ed. 2d 267.

The admissions of Respondent Ed Hasty show that Pe-

titioners were conveyed the subject premises by deed from

J.W. and Clairette W. Ratcliff of Livingston, Polk County,

Texas which is recorded at Volume 257, page 92, of the Polk

County, Texas Deed Records (Tr. Items 17 and 17b); that

the homestead character of the subject realty is reflected by

the Records of the Tax Assessor-Collector of Polk County,

Texas, Account No. 847-00-00800; and that Appellee Ed

Hasty has never entered into an agreement of any kind with

Appellants (Tr. Item 4 and 17, Paragraph I, II, V, VIII, [xX

and XVII), Federal Rules Civ. Procedure, Rule 36, 28 U.S.

C,

The admissions of Respondent Ed Hasty show further that

he has prevented the operation of Petitioner Lake Livingston

21

Washateria, Inc. since the month of May, 1973, to the pre-

sent time, while he has never performed any service at the

written or oral request of Petitioners. (Tr. Item 17, Para-

graphs XIV and XVIII), Federal Rules Civ. Procedure 36, 28

U.S.C.

Also, such Respondent’s admissions show that Petitioner

Lake Livingston Washateria, Inc. was not in existence at the

time the agreement such Respondent relies upon was execu-

ted, for such Petitioner was not incorporated or operating

prior to the 6th day of May, A.D., 1971 (Tr. Item 17 and

17b, Paragraphs XV, XVI and XVII), Federal Rules Civil

Procedure Rule 36, 28 U.S.C.

Respondent Ed Hasty has utilized counsel at all stages of

the instant litigation, even through his procedural tactic do

not reflect such, and the clear-cut objective of his conduct,

whether upon advise of counsel or his own reactions, was to

contravene the Civil Rights of Petitioners and deprive them

of vested interests in realty (Tr. Item 1). Vernon’s Ann. Civ.

St., Art. 6627; Title 18, United States Code, §242; Title 42,

United States Code, Sections 1981, 1982 and 1983; United

States Code, Const. Amend. XIV; United States v. Price, 383

U.S. 787 (1966), 16 L.Ed. 2d 267.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES Vil

Petitioner-Intervenor requested the United States District

Court in a Motion for Leave to Appear to take judicial notice

of its own docket and particularly Civil Action No. 75-H-

1945, wherein Petitioner-Intervenor personally was petition-

ers, to clarify that Petitioners did not have a remedy, legal

or equitable through the State courts of Texas (Tr. Items 15

22

and 16). 29 Am Jur 2d §§ 57 and 59; 31 C.J.S. Evidence

§10; Ackerman v United States 178 F.2d 983 (1949), af-

firmed 340 U.S. 193, 95 L.Ed. 2d 207; Lowe v McDonald,

221 F.2d 228 (1955); Fed. Rules Eud. Rule 201(a), 28

U.S.C.

The relevant State judiciary was adverse towards Petition-

ers to a degree that efforts to remove previous litigation in

the applicable judicial district were initiated by Petitioner-

Intervenor (See Ratcliff v Texas, Cr. No. 71-H-228, US DC

SD TX, No. 9432, District Court of Polk County, Texas:

No. 11,064, District Court of Montgomery County, Texas;

No. 72-3127, U. S. Court of Appeals, Fifth Circuit No.

74-5595 and No. 75-208 U. S. Supreme Court. But of

greater notoriety is the fact that the instant litigation involves

a suit raising the issue of title to land which is required under

State Law to be filed in the county where the land is situat-

ed. Vernon’s Ann. Civ. St., Art. 1995(14); Christensen v

Foster, 297 S.W. 657 (1927); Renwar Oil Company v Lan-

caster, 276 S.W. 2d 774 (1955); Title 42, United States

Code, Sections 1981, 1982 and 1983.

In addition to the element of a fair trial, the hostility of

the judiciary was sufficiently overt that the probabilities were

great Petitioners’ witnesses and personnel would not be safe

during litigation in the applicable judicial district nor would

the law be fairly applied. Title 28, United States Code, Sec-

tions 1443 and 1447(d); Lefton v Hattiesburg, 333 F.2d

280 (1964); Manning v Ketchum, 58 F.2d 948 (1932);

Sanders v Russel, 401 F.2d 224 (1968); Lewis v Kugler, 446

F.2d 1343 (1971); Martin v Duffie, 463 F.2d 464 (1972).

Further evidence would have been available during the

23

course of the trial from witnesses if it appeared the records

judicially noted were not adequate to establish the unavail-

ability of a legal or equitable remedy in the State courts of

Texas for Petitioners. Federal Rules Civ. Procedure Rule

8(a), 28 U.S.C.; Title 28, United States Code, Sections 1343,

1443 and 1447(d); Title 42, United States Code, Sections

1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989,

1990, 1991, 1992, 1994 and 1995; United States Code,

Const. Amend. V, VIII, XIV and XV; United States v Price,

383 U. S. 787 (1966), 16 L.Ed. 2d 267.

ARGUMENT - DISCUSSION OF FACTS AND

AUTHORITIES VIII

No genuine issue as to any material fact was presented by

Respondent Ed Hasty controverting the pleadings (Tr. Items

1 and 16), admissions (Tr. Items 17 and 17b) and sworn

statements (Tr. Items 7, 10 and excluded entry between

Items 10 and 11 consisting of motion for summary judgment

with the dated 11/10/73), in behalf of Petitioners, and such

Petitioners who moved for summary judgment (Tr. Items 7,

excluded entry between Items 10 and 11, 19 and 20), were

entitled to default of judgment as a matter of law. Federal

Rules Civ. Proc., Rules 12(c), 55 and 56, 28 U.S.C.; Butler v

Crockett Production Credit Association, 303 S.W. 2d 464

(1957).

Rule 56(a), Federal Rules of Civil Procedure, provides

that a party seeking to recover upon a claim may move with

or without supporting affidavits for a summary judgment in

his favor upon all or any part thereof. Section (c) of Rule 56

provides that the judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to interrogatories

24

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law, and each of the designated conditions Petition-

ers under the prevailing facts. Beckman v Walter Kidde &

Company, 316 F.Supp. 1321 (1970), affirmed 451 F.2d 593

certiorari denied 408 U.S. 922; Fleming v Simon, 397

F.Supp.1202(1975); Gonzales v Southern Methodist Univer-

sity, 536 F.2d 1071 (1976); Westlake v Lucas, 537 F.2d 857

(1976).

CONCLUSION

The mandate herein of the Supreme Court of the United

States should reverse the order of the United States Court of

Appeals for the Fifth Circuit affirming the Final Judgment of

the United States District Court and render judgment as a

matter of law against Respondents and in favor of Petitioner

Lake Livingston Washateria, Inc. for possession of the sub-

ject premises at Onalaska, Polk County, Texas; it should

render judgment in favor of Petitioner-Intervenor for title

to the subject premises as recorded at Volume 257, page 92,

of the Polk County, Texas Deed Records as against all parties

to the litigation; and it should direct the United States Court

of Appeals for the Fifth Circuit to remand the proceeding to

the United States District Court for the Southern District of

Texas, Houston Division, for a hearing to determine the

amount of damages to which Petitioners are entitled against

Respondents jointly or severally. Mitchell v Texas Gulf

Sulphur Company, 446 F.2d 90 (1971); Fisler v Stritzler,

535 F.2d 148 (1976).

February 28, 1978.

25

COUNSEL FOR APPELLANTS

Elijah W. Ratcliff

P.O. Box 862

Livingston, Texas 77351

Ph. 713-327-4948

CERTIFICATE OF SERVICE

Counsel for Petitioners certifies that triplicate copies of

the foregoing Petition for Writ of Certiorari were served this

28th day of February, A.D., 1978, on the Attorneys of

Record for Respondents by first class United States Mail ad-

dressed to Hon. Albert D. Downer, Attorney at Law, 2210

FM 1960 East, P.O. Box 90324, Houston, Texas 77090 and

to Hon. Max Hendrick, III, Attorney at Law, 2100 First City

National Bank Building, Houston, Texas 77002.

COUNSEL FOR PETITIONERS

A-l

APPENDIX A

Final Judgment

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAKE LIVINGSTON WASHATERIA, INC.

ET AL.

v. CIVIL ACTION NO. 73-H-875

ED HASTY, ET AL.

FILED: Jul 29, 1977

FINAL JUDGMENT

For reasons set forth in the United States Magistrate’s

Memorandum and Recommendation, signed on July 27,

1977, it is ORDERED that said Recommendation be and the

same is hereby adopted as the Court’s Memorandum and

Order.

It is therefore ORDERED, ADJUDGED and DECREED

that Plaintiffs’ action be DISMISSED.

The Clerk will enter this Final Judgment and provide coun-

sel for all parties with true copies.

Done at Houston, Texas, this 29th day of July, 1977.

s/ John V. Singleton, Jr.

UNITED STATES DISTRICT JUDGE

A-2

Memorandum and Recommendation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAKE LIVINGSTON WASHATERIA,

INC., ET AL.

v. CIVIL ACTION NO. 73-H-875

ED HASTY, ET AL. Judge John V. Singleton, Jr.

FILED: Jul 27, 1977

Memorandum and Recommendation:

Plaintiffs have brought this action pursuant to 42 USC

§1981, $1983, $1985 and $1988. The parties Defendant in

this action are Ed Hasty and the Metallic Building Company.

The pleadings on file are extensive; however, their entire

reconstruction will not be necessary in order to grasp the

points at issue. It will be sufficient to elicit those facts

material to the resolution of this recommendation.

In brief, the Plaintiffs in this action allege that the Defen-

dant Ed Hasty has unlawfully interfered with Plaintiff's

peaceable possession of his premises by engaging in continu-

ous acts of trespass, spawning a correlative issue concerning

title to the property. Plaintiffs allege that the above conduct

was pursued under a pretense of authority, i.e., pursuant to

an unlawful judgment in state court foreclosing a lien, with

A-3

Defendant Ed Hasty obtaining title through sale by sheriff.

[For a delineation of actions taken on the property, see ex-

hibits attached to Defendant’s ‘“‘Answer to Intervention and

Amended Original Answer’’, filed on June 1, 1977, instru-

ment#21.]

In Copeland v. First Federal Savings and Loan Associa-

tion of Lake County, 414 F.2d 274 (Sth Cir. 1969), on facts

similar to the present case, the Court stated:

“Beyond vague references to the equal protection

and due process clause, the complaint states no

basis for federal jurisdiction or any cognizable

grounds upon which relief sought might be grant-

ed.”

Upon a review of the record, it is apparent that the trespass

complained of is in actuality a complaint regarding the en-

forcement of a decree pursuant to a state court judgment.

To allow Plaintiffs to prosecute this action would be to ren-

der this Court an appeals court for all displeased with a state

trial court decree, without appellate review in the state.

With respect to Defendant Metallic Building Company, it

is alleged that Metallic failed to comply with its obligation

under a contract providing for the construction of a building

on the property in question. With regard to this complaint,

it is sufficient to state that no facts have been presented upon

which relief can be granted under §1981, et seq.

Various motions have been filed by the Defendants in this

action; however, in view of the foregoing, their determination

need not be pursued.

A-4

Accordingly, it is RECOMMENDED that Plaintiffs’ action

be DISMISSED for failure to state a claim upon which relief

can be granted.

DONE at Houston, Texas, this 27th day of July, 1977.

s/ (Signature Illegible)

UNITED STATES MAGISTRATE

A-5

Order of the United States Court of Appeals

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77 - 2769

Summary Calendar*

LAKE LIVINGSTON WASHATERIA, INC., ET AL.,

Plaintiff-Appellant

versus

ED HASTY,

Defendant-Appellee.

METALLIC BUILDING COMPANY,

Intervenor-Appellee

Appeal from the United States District Court for the

Southern District of Texas

(December 29, 1977)

BEFORE AINSWORTH, MORGAN and GEE, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21!

*Rule 18, 5 Cir., see Isbell! Enterprises, Inc. ¥. Citizens Casuaity Cc. of

New York, et al., 5 Cir., 1970, 431 F.2d 409.

1. See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.,

1970, 430 F.2d 966.

A+4

APPENDIX B

United States Constitutional Provisions

UNITED STATES CODE, CONST. AMEND. V

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment

of a grand jury, except in cases arising in the land or naval

forces, or in the malitia, when in actual service in time of war

or public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against

himself nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use without just compensation.

UNITED STATES CODE, CONST. AMEND. VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual purnishments inflicted.

UNITED STATES CODE, CONST. AMEND. XIII

1. Neither slavery nor involitary servitude, except as purn-

ishment for crime whereof the party shall have been duly

convicted, shall exist within the United States, or any place

subject to their jurisdiction.

2. Congress shall have authority to enforce this article by

appropriate legislation

A-7

UNITED STATES CODE, CONST. AMEND. XIV

1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the priv-

ileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or proper-

ty, without due process of law, nor deny to any person with-

in its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several

States according to their respective numbers, counting the

whole number of persons in each State, excluding Indians not

taxed. But when the right to vote at any election for the

choice of electors for the President and Vice-President of

the United States, Representatives in Congress, the executive

and judicial officers of a State, or the members of the legis-

lature thereof, is denied to any of the male inhabitants of

such State, being twenty-one years of age, and citizens of

the United States, or in any way abridged, except for partici-

pation in rebellion or other crime, the basis of representation

therein shall be reduced in the proportion which the number

of such male citizens shall bear to the whole number of male

citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Con-

gress, or elector of President and Vice-president, or hold any

office, civil or military, under the United States, or under any

State. who having previously taken an oath as a member of

Congress, or as an officer of the United States, or as a mem-

ber of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the Unit-

AS

ed States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may, by a vote of two thirds of each

house, remove such disability.

4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrec-

tion or rebellion, shall not be questioned. But neither the

United States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion against

the United States, or any claim for the loss or empancipation

of any slave; but all such debts, obligations, and claims shall

be held illegal and void.

5. The Congress shall have power to enforce, by appro-

priate legislation, the provisions of this article.

UNITED STATES CODE, CONST. AMEND. XV

1. The right of citizens of the United States to vote shall

not be denied or abridged by the United States or by any

State on account of race, color, or previous condition of

servitude.

2. The Congress shall have power to enforce this article

by appropriate legislation.

AY

United States Code Statutory Provisions

TITLE 28, UNITED STATES CODE, SECTION 1343

Civil rights and elective franchise

The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

(1) To recover damages for the injury to his person or

property, or because of the deprivation of any right or priv-

ilege of a citizen of the United States, by any act done in

furtherance of any conspiracy mentioned in Section 1985

of Title 42;

(2) To recover damages from any person who fails to pre-

vent or to aid in preventing any wrongs mentioned in Section

1985 of Title 42 which he had knowledge were about to

occur and power to prevent;

(3) To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage, of any

right, privilege or immunity secured by the Constitution of

the United States or by any act of Congress providing for

equal rights of citizens or of all persons within the jurisdic-

tion of the United States;

(4) To recover damages or to secure equitable or other re-

lief under any Act of Congress providing for the protection

of civil rights, including the right to vote.

TITLE 28, UNITED STATES CODE, SECTION 1443

Civil rights cases.

Any of the following civil actions or criminal prosecutions,

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commenced in a State court may be removed by the defen-

dant to the district court of the United States for the dis-

trict and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce

in the courts of such State a right under any law providing

for the equal civil rights of citizens of the United States, or

of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any

law providing for eaual rights, or for refusing to do any act

on the grounds that it would be inconsistent with such law.

TITLE 28, UNITED STATES CODE, SECTION 1446

Procedure for removal

(a) A defendant or defendants desiring to remove any

civil action or criminal prosecution from a State court shall

file in the district court of the United States for the district

and division within which such action is pending a verified

petition containing a short and plain statement of the facts

which entitle him or them to removal together with a copy of

all process, pleadings and orders served upon him or them in

such action.

(b) The petition for removal of a civil action or proceed-

ing shall be filed within thirty days after the service of sum-

mons upon the defendant if such initial pleading has then

been filed in court and is not required to be served on the

defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable

a petition for removal may be filed within thirty days after

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receipt by the defendant, through service or otherwise, of a

copy of an amended pleading, motion, order, or other paper

from which it may first be ascertained that the case is one

which is or has become removable.

(c) The petition for removal of a criminal prosecution

may be filed at any time before trial.

(d) Each petition for removal of a civil action or proceed-

ing, except a petition in behalf of the United States, shall be

accompanied by a bond with good and sufficient surety con-

ditioned that the defendant will pay all costs and disburse-

ments incurred by reason of the removal proceedings should

it be determined that the case was not removable or was im-

properly removed.

(e) Promptly after the filing of such petition and bond the

defendant or defendants shall give written notice thereof to

all adverse parties and shall file a copy of the petition with

the clerk of such State court, which shall effect the removal

and the State court shall proceed no further unless and until

the case is remanded.

(f) If the defendant or defendants are in actual custody on

process issued by the State court, the district court shall

issue its writ of habeas corpus, and the marshall shall there-

upon take such defendant or defendants into his custody and

deliver a copy of the writ to the clerk of such State court.

TITLE 28, UNITED STATES CODE, SECTION 1447

Procedure after removal generally

(a) In any case removed from a State court, the district

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court may issue all necessary orders and process to bring be-

fore it all proper parties whether served by process issued by

the State court or otherwise.

(b) It may require the petitioner to file with its clerk

copies of all records and proceedings in such State court or

may cause the same to be brought before it by writ of cer-

tiorari issued to such State court.

(c) If at any time before final judgment it appears that the

case was removed improvidently and without jurisdiction,

the district court shall remand the case, and may order the

payment of just costs. A certified copy of the order of re-

mand shall be mailed by its clerk to the clerk of the State

court. The State court may thereupon proceed with such

case.

(d) An order remanding a case to the State court from

which it was removed is not reviewable on appeal or other-

wise, except that an order remanding a case to the State

court from which it was removed pursuant to Section 1443

of this Title shall be reviewable by appeal or otherwise.

TITLE 28, UNITED STATES CODE, SECTION 1449,

State court record supplied

Where a party is entitled to copies of the records and pro-

ceedings in any suit or prosecution in a State court, to be

used in any district court of the United States, and the clerk

of such State court upon demand, and the payment or ten-

der of the legal fees, fails to deliver certified copies, the dis-

trict court may, on affidavit reciting such facts, direct such

record to be supplied by affidavit or otherwise. Thereupon

such proceedings, trial, and judgment may be had in such

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district court, and all such process awarded, as if certified

copies had been filed in the district court.

TITLE 42, UNITED STATES CODE, SECTION 1981

Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make

and enforce contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings for

the security of parties.

TITLE 42, UNITED STATES CODE, SECTION 1982

Property rights of citizens

All citizens of the United States shall have the same right,

in every State and Territory, as is enjoyed by white citizens

thereof to inherit, purchase, lease, sell, hold, and convey

real and personal property.

TITLE 42, UNITED STATES CODE, SECTION 1983

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress. (R.S. Sec. 1979).

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TITLE 42, UNITED STATES CODE, SECTION 1984

Same; review of proceedings

All cases arising under the provisions of this Act in the

courts of the United States shall be reviewable by the Sup-

reme Court of the United States, without regard to the sum

in controversy, under the same provisions and regulations as

are provided by law for the review of other causes in said

court.

TITLE 42, UNITED STATES CODE, SECTION 1985

Conspiracy to interfere with civil rights

(1) Preventing officer from performing duties. If two or

more persons in any State or Territory conspire to prevent,

by force, intimidation, or threat, any person from accepting

or holding any office, trust, or place of confidence under the

United States, or from discharging any duties thereof; or to

induce by like means any officer of the United States to leave

any State, district, or place, where his duties as an officer are

required to be performed, or to injure him in his person or

property on account of his lawful discharge thereof, or to

injure his property so as to molest, interrupt, hinder, or im-

pede him in the discharge of his official duties;

(2) Obstructing justice; intimidating party, witness, or

juror. If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat, any party

or witness in any court of the United States from attending

such court or from testifying to any matter pending therein

freely, fully, and in any such court, or to injure such party

or witness in his person or property on account of any ver-

dict, presentment, or indictment lawfully assented to by him,

or of his being or having been such juror; or if two or more

et ll

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persons conspire for the purpose of impeding, hindering, ob-

structing, or defeating, in any manner, the due course of jus-

tice in any State or Territory, with intent to deny to any

citizen the equal protection of the laws, or to injure him or

his property for lawfully enforcing, or attempting to enforce,

the right of any person, or class of persons, to the equal pro-

tection of the law;

(3) Depriving persons of rights or privileges. If two or

more persons in any State or Territory conspire or go in dis-

guise on the highway or on the premises of another, for the

purpose of depriving, either directly or indirectly, any per-

son or class of persons of the equal protection of the laws,

or of equal privileges and immunities under the laws; or for

the purpose of preventing or hindering the constituted

authorities of any State or Territory from giving or securing

to all persons within such State or Territory the equal protec-

tion of the laws; or if two or more persons conspire to pre-

vent by force, intimidation, or threat, any citizen who is

lawfully entitled to vote, from giving his support or advocacy

in a legal manner, toward or in favor of the election of any

lawfully qualified person as an elector for President or Vice-

President, or as a Member of Congress of the United States;

or to injure any citizen in person or property on account of

such support or advocacy; in any case of conspiracy set forth

in this section, if one or more persons engaged therein do, or

cause to be done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his person or

property, or deprivedof having and exercising any right or

privilege, of a citizen of the United States, the party so in-

jured or deprived may have an action for the recovery of

damages, occasioned by such injury or deprivation, against

any one or more of the conspirators. (R.S. Sec. 1980).

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TITLE 42, UNITED STATES CODE, SECTION 1986

Same; action for neglect to prevent

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in Section 1985

of this Title, are about to be committed, and having power to

prevent or aid in preventing the commission of the same,

neglects or refuses so to do, if such wrongful act be com-

mitted, shall be liable to the party injured, or his legal repre-

sentative, for all damages caused by such wrongful act, which

such person by reasonable diligence could have prevented:

and any number of persons guilty of such wrongful neglect

or refusal may be joined as defendants in the action; and if

deceased shali have such action therefor, and may recover not

exceeding $5,000 damages therein, for the benefit of the

widow of the deceased, if there be one, and if there be no

widow then for the benefit of the next of kin of the de-

ceased. But no action under the provisions of this section

shal] be sustained which is not commenced within one year

after the cause of action accrued. (R.S., Sec. 1981).

TITLE 42, UNITED STATES CODE, SECTION 1987

Prosecution of violation of certain laws

The United States attorneys, marshals, the commissioners

appointed by the district and territorial courts, with power to

arrest, imprison or bail offenders, and every other officer

who is especially empowered by the President, are authorized

and required at the expense of the United States to institute

prosecutions against all persons violating any of the provi-

sions of Section 1990 of this Title or of Sections 5506 to

5516 and 5518 to 5532 of the Revised Statutes, and to cause

such persons to be arrested, and imprisoned or bailed for trial

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before the court of the United States or the territorial court

having cognizance of the offense. (R.S. Sec. 1982).

TITLE 42, UNITED STATES CODE, SECTION 1988

Proceedings in vindication of civil rights

The jurisdiction in civil and criminal matters conferred on

the district courts by the provisions of this chapter and Title

18, for the protection of all persons in the United States in

their civil rights and for vindication, shall be exercised and

enforced in accordance with the laws of the United States so

long as such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish suitable

remedies and purnish offenses against law, the common law,

as modified and changed by the constitution of the State

wherein the court having jurisdiction of such civil or criminal

cause is held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be extended

to and govern the said courts in the trial and disposition of

the cause, and, if it is of a criminal nature, in the infliction of

purnishment on the party found guilty. (R.S. Sec. 722).

TITLE 42, UNITED STATES CODE, SECTION 1989

Commissioners; appointment of persons to execute warrants

The district courts of the United States and the district

courts of the Territories, from time to time, shall increase the

number of commissioners, so as to afford a speedy and con-

venient means for the arrest and examination of persons

charged with crimes referred to in Section 1987 of this Title;

and such commissioners are authorized and required to exer-

cise all the powers and duties conferred on them herein with

:

.

3

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regard to such offenses in like manner as they are authorized

by law to exercise with regard to other offenses against the

laws of the United States. Said commissioners are empower-

ed, within their respective counties, to appoint, in writing,

under their hands, one or more suitable persons, from time to

time, who shall execute all such warrants or other processas

the commissioners may issue in the lawful performance of

their duties, and the persons so appointed shall have authori-

ty to summon and call to their aid the bystanders or posse

comitatus of the proper county, or such portion of the land

or naval forces of the United States, or the militia, as may be

necessary to the performance of the duty with which they

are charged; and such warrants shall run and be executed any-

where in the State or Territory within which they are issued.

(R.S. Sec. 1983, 1984).

TITLE 42, UNITED STATES CODE, SECTION 1990

Marshall to obey precepts; refusing to receive or execute

process

Every marshall and deputy marshall shall obey and execute

all warrants or other process, when directed to him issued

under the provisions of Section 1989 of this Title. Every

marshal and deputy marshal who refuses to receive any war-

rant or other process when tendered to him, issued in pur-

suance of the provisions of this section, or refuses or neglects

to use all proper means diligently to execute the same, shall

be liable to a fine in the sum of $1,000, for the benefit of the

party aggrieved thereby. (R.S. Sec. 1985, 5517).

TITLE 42, UNITED STATES CODE, SECTION 1991

Fees; persons appointed to execute process

Every person appointed to execute process under Section

PCa a AR the he on

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1989 of this Title shall be entitled to a fee of $5 for each

party he may arrest and take before any commissioner with

such other fees as may be deemed reasonable by the com-

missioner for any additional services necessarily performed

by him, such as attending at the examination, keeping the

prisoner in custody, and providing him with food and lodg-

ing during his detention, and until the final determination by

the commissioner; such fees to be made up in conformity

with the fees usually charged by the officers of the courts of

justice within the proper district or county, as near as may be

practicable, and paid out of the Treasury of the United States

on the certificate of the judge of the district within which the

arrest is made, and to be recoverable from the defendant as

part of the judgment in case of conviction. (R.S. Sec. 1987).

TITLE 42, UNITED STATES CODE, SECTION 1992

Speedy trial

Whenever the President has reason to believe that offenses

have been, or are likely to be committed against the pro-

visions of Section 1990 of this Title or of Section 5506 to

5516 and 5518 to 5532 of the Revised Statutes, within any

judicial district, it shall be lawful for him, in his discretion,

to direct the judge, marshal, and United States attorney of

such district to attend at such place within the district, and

for such time as he may designate, for the purpose of the

more speedy arrest and trial of persons so charged, and it

shall be the duty of every judge or other officer, when any

such requisition is received by him to attend at the place and

for the time therein designated. (R.S. Section 1988).

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TITLE 42, UNITED STATES CODE, SECTION 1993

(Repealed Sept. 9, 1957)

TITLE 42, UNITED STATES CODE, SECTION 1994

Peonage abolished

The holding of any person to service or labor under the

system known as peonage is abolished and forever prohibited

in any Territory or State of the United States; and all acts.

laws, resolutions, orders, regulations, or usages of any Terri-

tory or State, which have heretofore established, maintained,

or enforced, or by virtue of which any attempt shall here-

after be made to establish, maintain, or enforce, directly or

indirectly, the voluntary or involuntary service or labor of

any person as peons, in liquidation of any debt or obligation,

or otherwise, are declared null and void. (R.S. Section

1990).

TITLE 42, UNITED STATES CODE,SECTION 1995

Criminal contempt proceedings; penalties; trial by jury

In all cases of criminal contempt arising under the pro-

visions of this Act, the accused, upon conviction, shall be

purnished by fine or imprisonment or both; Provided how-

ever, That in case the accused is a natural person the fine to

be paid shall not exceed the term of six months: Provided

further, That in any such proceeding for criminal contempt,

at the discretion of the judge, the accused may be tried with

or without a jury: Provided further, however, That in the

event such proceeding for criminal contempt be tried before

a judge without a jury and the sentence of the court upon

conviction is a fine in excess of the sum of $300 or imprison-

ment in excess of forty-five days, the accused in said proceed-

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ing, upon demand therefor, shall be entitled to a trial de novo

before a jury, which shall conform as near as may be to the

practice in other criminal cases.

This section shall not apply to contempts committed in

the presence of the court or so near thereto as to interfere

directly with the administration of justice nor to the mis-

behavior, misconduct, or disobedience, of any officer of the

court in respect to the writs, orders, or process of the court.

Nor shall anything herein or in any other provision of law

be construed to deprive courts of their power, by civil con-

tempt proceedings, without a jury, to secure compliance with

or to prevent obstruction of, as distinguished from purnish-

ment for violations of, any lawful writ, process, order, rule,

decree, or command of the court in accordance with the pre-

vailing usages of law and equity, including the power of de-

tention.

FEDERAL RULES CIV. PROC., RULE 8

General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim

for relief, whether an original claim, counterclaim, cross-

claim, or third-party claim, shall contain (1) a short and plain

statement of the grounds upon which the court’s jurisdiction

depends, unless the court already has jurisdiction and the

claim needs no new grounds of jurisdiction to support it,

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief, and (3) a demand for judgment

for the relief to which he deems himself entitled. Relief in

the alternative or of several different types may be demand-

ed.

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(b) Defenses; Form of Denials. A party shall state in short

and plain terms his defenses to each claim asserted and shall

admit or deny the averments upon which the adverse party

relies. If he is without knowledge or information sufficient

to form a belief as to the truth of an averment, he shall so

state and this has the effect of a denial. Denials shall fairly

meet the substance of the averments denied. When a pleader

intends in good faith to deny only a part or a qualification of

an averment, he shall specify so much of it as is true and

material and shall deny only the remainder. Unless the plead-

er intends in good faith to controvert all the averments of the

preceeding pleading, he may make his denials as specific

denials of designated averments except such designated aver-

ments or paragraphs as he expressly admits; but, when he

does so intend to controvert all its averments, including

averments of the grounds upon which the court’s jurisdiction

depends, he may do so by general denial subject to the obli-

gations set forth in Rule 11.

(c) Affirmative Defenses. In pleading to a preceeding

pleading, a party shall set forth affirmatively accord and satis-

faction, arbitration and award, assumption of risk, contribu-

tory negligence, discharge in bankruptcy, duress, estoppel,

failure of consideration, fraud, illegality, injury by fellow

servant, laches, license, payment, release, res judicata, statute

of frauds, statute of limitations, waiver, and any other matter

constituting an avoidance or affirmative defense. When a

party has mistakenly designated a defense as a counterclaim

or a counterclaim as a defense, the court on terms, if justice

so requires, shall treat the pleading as if there had been a

proper designation.

(d) Effect of Failure to Deny. Averments in a pleading

AN we NS bE ice) Latent oe ei

Reet PRI: hd. Ee. Nome ih bed le a tha me

a.

ee

A-23

to which a responsive pleading is required, other than those

as to the amount of damage, are admitted when not denied in

the responsive pleading. Averments in a pleading to which no

responsive pleading is required or permitted shall be taken as

denied or avoided.

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, con-

cise, and direct. No technical forms of pleading or motions

are required.

(2) A party may set forth two or more statements of

a claim or defense alternately or hypothetically, either in

one count or defense or in separate counts or defenses. When

two or more statements are made in the alternative and one

of them if made independently would be sufficient, the

pleading is not made insufficient by the insufficiency of one

or more of the alternative statements. A party may also

state as many separate claims or defenses as he has regardless

of consistency and whether based on legal, equitable, or mari-

time grounds. All statements shall be made subject to the

obligations set forth in Rule 11.

(f) Construction of Pleadings. All pleadings shall be so

construed as to do substantial justice.

FEDERAL RULES CIV. PROC., RULE 12

Defenses and Objections-When and How Presented - By

Pleading or Motion-Motion for Judgment on Pleadings

(a) When Presented. A defendant shall serve his answer

within 20 days after the service of the summons and com-

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plaint upon him, except when service is made under Rule

4(e) and a different time is prescribed in the order of the

court under the statute of the United States or in the statute

or rule of court of the state. A party served with a pleading

stating a cross-claim against him shall serve an answer thereto

within 20 days after the service upon him. The plaintiff shall

serve his reply to a counterclaim in the answer within 20 days

after service of the answer or, if a reply is ordered by the

court, within 20 days after service of the order, unless the

order otherwise directs. The United States or an officer or

agency thereof shall serve an answer to the complaint or to a

cross-claim, or a reply to a counterclaim, within 60 days after

the service upon the United States attorney of the pleading in

which the claim is asserted. The service of a motion per-

mitted under this rule alters these periods of time as follows,

unless a different time is fixed by order of the court: (1) if

the court denies the motion or postpones its disposition

until the trial on the merits, the responsive pleading shall be

served within 10 days after notice of the court’s action;

(2) if the court grants a motion for a more definite state-

ment the responsive pleading shall be served with 10 days

after the service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a

claim for relief in any pleading, whether a claim, counter-

claim, cross-claim, or third-party claim, shall be asserted in

the responsive pleading thereto if one is required, except that

the following defenses may at the option of the pleader be

made by motion: (1) lack of jurisdiction over the subject

matter; (2) lack of jurisdiction over the person, (3) improper

venue,(4) insufficiency of process, (5) insufficiency of service

of process, (6) failure to state a claim upon which relief can

be granted, (7) failure to join a party under Rule 19. A

Sis ee beet veil

A-25

motion making any of these defenses shall be made before

pleading if a further pleading is permitted. No defense or

objection is waived by being joined with one or more other

defenses or objections in a responsive pleading or motion. If

a pleading sets forth a claim for relief to which the adverse

party is not required to serve a responsive pleading, he may

assert at the trial any defense in law or fact to that claim for

relief. If, on a motion asserting the defense numbered (6)

to dismiss for failure of the pleading to state a claim upon

which relief can be granted, matters outside the pleading are

presented to and not excluded by the court, the motion shall

be treated as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given reasonable

opportunity to present all material made pertinent to such

motion by Rule 56.

(c) Motion for Judgment on the Pleadings. After the

pleadings are closed but within such time as not to delay

trial, any party may move for judgment on the pleadings. If,

on a motion for judgment on the pleadings, matters outside

the pleadings are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment and

disposed of as provided in Rule 56, and all parties shall be

given reasonable opportunity to present all material made

pertinent to such motion by Rule 56.

(d) Preliminary Hearings. The defenses specifically enum-

erated (1)-(7) in subdivision (b) of this rule, whether made in

a pleading or by motion, and the motion for judgment men-

tioned in subdivision (c) of this rule shall be heard and deter-

mined before trial on application of any party, unless the

court orders that the hearing and determination thereof be

deferred until the trial.

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(e) Motion for More Definite Statement. If a pleading to

which a responsive pleading is permitted is so vague or am-

biguous that a party cannot reasonably be required to frame

a responsive pleading, he may move for a more definite

statement before interposing his responsive pleadings. The

motion shall point out the defects complained of and the

details desired. If a motion is granted and the order of the

court is not obeyed within 10 days after notice of the order

or within such other time as the court may fix, the court may

strike the pleading to which the motion was directed or make

such order as it deems just.

(f) Motion to Strike. Upon motion made by a party be-

fore responding to a pleading or, if no responsive pleading is

permitted by these rules, upon motion made by a party with-

in twenty days after the service of the pleading upon him or

upon the court’s own initiative at any time, the court may

order stricken from any pleading any insufficient defense or

any redundant, immaterial, impertinent, or scandalous

matter.

(g) Consolidation of Defenses in Motion. A party who

makes a motion under this rule may join with it any other

motions herein provided for and then available to him. If

a party makes a motion under this rule but omits therefrom

any defense or objection then available to him which this

rule permits to be raised by motion, he shall not thereafter

make a motion based on the defense or objection so omitted,

except a motion as provided in subdivision (h)(2) hereof

on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, im-

A-27

proper venue, insufficiency of process, or insufficiency of

service of process is waived (A) if omitted from a motion in

the circumstances described in subdivision (g), or (B) if it is

neither made by motion under this rule nor included in a

responsive pleading or an amendment thereof permitted by

Rule 15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief

can be granted, a defense of failure to join a party indispen-

sable under Rule 19, and an objection of failure to state a

legal defense to a claim may be made in any pleading per-

mitted or ordered under Rule 7(a), or by motion for judg-

ment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.

FEDERAL RULES CIV. PROC., RULE 33

Interrogatories to Parties

(a) Availability; Procedures for Use. Any party may

serve upon any other party written interrogatories to be

answered by the party served or, if the party served is a pub-

lic or private corporation or a partnership or association or

governmental agency, by any officer or agent, who shall

furnish such information as is available to the party. Inter-

rogatories may, without leave of court, be served upon the

plaintiff after commencement of the action and upon any

other party with or after service of the summons and com-

plaint upon that party.

Each interrogatory shall be answered separately and fully

a

A-28

in writing under oath, unless it is objected to, in which event

the reasons for objection shall be stated in lieu of an answer.

The answers are to be signed by the person making them, and

the objections signed by the attorney making them. The

party upon whom the interrogatories have been served shall

serve a copy of the answers, and objections if any, within 30

days after the service of the interrogatories, except that a

defendant may serve answers or objections within 45 days

after service of the summons and complaint upon that defen-

dant. The court may allow a shorter or longer time. The

party submitting the interrogatories may move for an order

under Rule 37(a) with respect to any objection to or other

failure to answer an interrogatory.

(b) Scope; Use at Trial. Interrogatories may relate to any

matters which can be inquired into under Rule 26(b), and the

answers may be used to the extent permitted by the rules of

evidence.

An interrogatory otherwise proper is not necessarily ob-

jectionable merely because an answer to the interrogatory

involves an opinion or contention that relates to fact or the

application of law to fact, but the court may order that such

an interrogatory need not be answered until after designated

discovery has been completed or until a pre-trial conference

or other later time.

(c) Option to Produce Business Records. Where the

answers to an interrogatory may be derived or ascertained

from the business records of the party upon whom the in-

terrogatory has been served or from an examination audit

or inspection of such business records, or from a compila-

tion, abstract or summary based thereon, and the burden of

ir sctanblinth ra ein aaiaiaiill

A-29

deriving or ascertaining the answer the answer is substantially

the same for the party serving the interrogatory as for the

party served, it is a sufficient answer to such interrogatory to

specify the records from which the answer may be derived

or ascertained and to afford to the party serving the inter-

rogatory reasonable opportunity to examine, audit or inspect

such records and to make copies, compilations, abstracts or

summaries.

FEDERAL RULES CIV. PROC., RULE 36

Requests for Admissions

(a) Request for Admission. A party may serve upon any

other party a written request for admissions, for the purposes

of the pending action only, of the truth of any matters with-

in the scope of Rule 26(b) set forth in the request that re-

late to statements or opinions of fact or of the application

of law to fact including the genuiness of any documents

described in the request. Copies of the document shall be

served with the request unless they have been or are other-

wise furnished or made available for inspection and copying.

The request may, without leave of court, be served upon the

plaintiff after commencement of the action and upon any

other party with or after service of the summons and com-

plaint upon any other party.

Each matter of which an admission is requested shall be

separately set forth. The matter is admitted unless, within 30

days after service of the request, or within such shorter or

longer time as the court may allow, the party to whom the

request is directed serves upon the party requesting the ad-

mission a written answer or objection addressed to the

matter, signed by the party or by his attorney, but unless the

A-30

court shortens the time, a defendant shall not be required to

serve answers or objections before the expiration of 45 days

after service of the summons and complaint upon him. If

objection is made, the reasons therefor shall be stated. The

answer shall specifically deny the matter or set forth in detail

the reasons why the answering party cannot truthfully admit

or deny the matter. A denial shall fairly meet the substance

of the requested admission, and when good faith requires

that a party qualify his answer or deny only a part of the

matter of which an admission is requested, he shall specify so

much of it as is true and qualify or deny the reaminder. An

answering party may not give lack of information or knowl-

edge as a reason for failure to admit or deny unless he states

that he has made reasonabe inquiry and that the information

known or readily obtainable by him is insufficient to enable

him to admit or deny. A party who considers that a matter

of which an admission has been requested presents a genuine

issue for trial may not, on that ground alone, object to the

request; he may, subject to the provisions of Rule 37(c),

deny the matter or set forth reasons why he cannot admit or

deny it.

The party who has requested the admissions may move to

determine the sufficiency of the answers or objections. Un-

less the court determines that an objection is justified, it

shall order that an answer be served. If the court determines

that an answer does not comply with the requirements of the

rule, it may order either that the matter is admitted or that

an amended answer be served. The court may, in lieu of

these orders, determine that final disposition of the request

be made at a pre-trial conference or at a designated time prior

to trial. The provisions of Rule 37(a)(4) apply to the award

of expenses incurred in relation to the motion.

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A-31

(b) Effect of Admission. Any matter admitted under this

rule is conclusively established unless the court on motion

permits withdrawal or amendment of the admission. Subject

to the provisions of Rule 16 governing admendment of a

pre-trial order, the court may permit withdrawal or amend-

ment when the presentation of the merits of the action will

be subserved thereby and the party who obtained the ad-

mission fails to satisfy the court that withdrawal or amend-

ment will prejudice him in maintaining his action or defense

on the merits. Any admission made by a party under this

rule is for the purpose of the pending action only and is not

an admission by him for any other purpose nor may it be

used against him in any other proceeding.

FEDERAL RULES CIV. PROC., RULE 37

Failure to Make Discovery: Sanctions

(a) Motion for Order Compelling Discovery. A party,

upon reasonable notice to other parties and all persons af-

fected thereby, may apply for an order compelling dis

covery as follows:

(1) Appropriate Court. An application for an order to a

party may be made to the court in which the action is pend-

ing, or, on matters relating to a deposition, to the court in

the district where the deposition is being taken. An applica-

tion for an order to a deponent who is not a party shall be

made to the court in the district where the deposition is

being taken.

(2) Motion. If a deponent fails to answer a question pro-

pounded or submitted under Rules 30 or 31, or a corporation

or other entity fails to make a designation under Rule 30(b)

A-32

(6) or 3l(a), or a party fails to answer an interrogatory sub-

mitted under Rule 33, or if a party, in response to a request

for inspection submitted under Rule 34, fails to respond that

inspection will be permitted as requested or fails to permit

inspection as requested, the discovering party may move for

an order compelling an answer, or a designation, or an

order compelling inspection in accordance with the request.

When taking a deposition on oral examination, the proponent

of the question may complete or adjourn the examination

before he applies for an order.

If the court denies the motion in whole or in part, it may

make such protective order as it would have been empowered

to make on a motion pursuant to Rule 26(c).

(3) Evasive or Incomplete Answer. For purposes of this

subdivision an evasive or incomplete answer is to be treated

as a failure to answer.

(4) Award of Expenses of Motion. If the motion is grant-

ed, the court shall, after opportunity for hearing, require the

party or deponent whose conduct necessitated the motion or

the party or attorney advising such conduct or both of them

to pay to the moving party the reasonable expenses incurred

in obtaining the order, including attorney’s fees, unles the

court finds that the opposition to the motion was substantial-

ly justified or that other circumstances make an award of

expenses unjust.

If a motion is denied, the court shall, after opportunity for

hearing, require the moving party or the attorney advising the

motion or both of them to pay to the party or deponent who

opposed the motion the reasonable expenses incurred in

PS 0 es the Wh, EER ati NT NC Nr ie YT ite walle onthe

A-33

opposing the motion, including attorney’s fees, unless the

court finds that the making of the motion was substantially

justified or that other circumstances make an award of ex-

penses unjust.

If the motion is granted in part and denied in part, the

court may apportion the reasonable expenses incurred in re-

lation to the motion among the parties and persons in a just

manner.

(b) Failure to Comply With Order.

(1) Sanctions by Court in District Where Deposition is

Taken. If a deponent fails to be sworn or to answer a ques-

tion after being directed to do so by the court in the district

in which the deposition is being taken, the failure may be

considered a contempt of that court.

(2) Sanction by Court in Which Action is Pending. If

a party or an officer, director, or managing agent of a party

or person designated under Rule 30(b)(6) or 31(a) to testify

on behalf of a party fails to obey an order to provide or per-

mit discovery, including an order made under subdivision (a)

of this rule or Rule 35, the court in which the action is pend-

ing may make such orders in regard to the failure as are just,

and among others the following:

(A) An order that the matters regarding which the

order was made or any other designated facts shall be taken

to be established for the purposes of the action in accordance

with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient

party to support or oppose designated claims or defenses, or

A-34

prohibiting him from introducing designated matters in evi-

dence;

(C) An order striking out pleadings or parts thereof,

or staying further proceedings until the order is obeyed, or

dismissing the action or proceeding or any part thereof, or

rendering a judgment by default against the disobedient

party;

(D) In lieu of any of the foregoing orders or in ad-

dition thereto, an order treating as a contempt of court the

failure to obey any orders except an order to submit to a

physical or mental examination.

(E) Where a party has failed to comply with an

order under Rule 35(a) requiring him to produce another for

examination, such orders as are listed in paragraphs(A), (B),

and (C) of this subdivision, unless the party failing to comply

shows that he is unable to produce such person for examina-

tion.

In lieu of any of the foregoing orders or in addition there-

to, the court shall require the party failing to obey the order

or the attorney advising him or both to pay the reasonable

expenses, including attorney’s fees, caused by the failure,

unless the court finds that the failure was substantially justi-

fied or that circumstances make an award of expenses unjust.

(c) Expenses on Failure to Admit. If a party fails to ad-

mit the genuiness of any document or the truth of any

matter as requested under Rule 36, and if the party request-

ing the admission thereafter proves the genuiness of the docu-

ment or the truth of the matter, he may apply to the court

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A-35

for an order requiring the other party to pay him the reason-

able expenses incurred in making that proof, including

reasonable attorney's fees. The court shall make the order

unless it finds that (1) the request was held objectionable

pursuant to Rule 36(a), or (2) the admission sought was of

no substantial importance, or (3) the party failing to admit

had reasonable ground to believe that he might prevail on the

matter, or (4) there was other good reason for the failure to

admit.

(d) Failure of Party to Attend at Own Deposition or Serve

Answers to Interrogatories or Respond to Request for In-

spection. If a party or an officer, director, or managing agent

of a party or a person designated under Rule 20(b)(6) or

31(a) to testify on behalf of a party fails (1) to appear before

the officer who is to take his deposition, after being served

with a proper notice, or (2) to serve answers or objections to

interrogatories submitted under Rule 33, after proper service

of the interrogatories, or (3) to serve a written response to a

request for inspection submitted under Rule 34, after proper

service of the request, the court in which the action is pend-

ing on motion may make such orders in regard to the failure

as are just, and among others it may take any action authori-

zed under paragraphs (A), (B), and (C) of subdivision (b)(2)

of this rule. In lieu of any order or in addition thereto, the

court shall require the party failing to act or the attorney ad-

vising him or both to pay the reasonable expenses, including

attorney's fees, caused by the failure, unless the court finds

that the failure was substantially justified or that other cir-

cumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be

excused on the ground that the discovery sought is objection-

A-36

able unless the party failing to act has applied for a protective

order as provided by Rule 26(c).

(e) Subpoena of Persons in Foreign Country. A subpoena

may be issued as provided in Title 28, U.S.C., §1783, under

the circumstances and conditions therein stated.

(f) Expenses Against United States. Except to the extent

permitted by statute, expenses and fees may not be awarded

against the United States under this rule.

FEDERAL RULES CIV. PROC., RULE 55. Default

(a) Entry. When a party against whom a judgment for af-

firmative relief is sought has failed to plead or otherwise

defend as provided by these rules and that fact is made to

appear by affidavit or otherwise, the clerk shall enter his

default.

(b) Judgment. Judgment by default may be entered as

follows:

(1) By the Clerk. When the plaintiff's claim against a

defendant is for a sum certain or for a sum which can by

computation be made certain, the clerk upon request of the

plaintiff and upon affidavit of the amount due shall enter

judgment for that amount and costs against the defendant, if

he has been defaulted for failure to appear and if he is not

an infant or incompetent person.

(2) By the Court. In all other cases the party entitled

to a judgment by default shall apply to the court therefor;

but no judgment by default shall be entered against an infant

A-37

or incompetent person unless represented in the action by a

general guardian, committee, conservator, or other such rep-

resentative who has appeared therein. If the party against

whom judgment by default is sought has appeared in the

action, he (or, if appearing by representative, his representa-

tive) shall be served with written notice of the application for

judgment at least 3 days prior to the hearing on such applica-

tion. If, in order to enable the court to enter judgment or to

carry it into effect, it is necessary to take an account or to

determine the amount of damages or to establish the truth of

any averment by evidence or to make an investigation of any

other matter, the court may conduct such hearings or order

such references as it deems necessary and proper and shall

accord a right of trial by jury to the parties when and as re-

quired by any statute of the United States.

(c) Setting Aside Default. For good cause shown the

court may set aside an entry of default and, if a judgment by

default has been ent. .ed, may likewise set it aside in accor-

dance with Rule 60(b).

(d) Plaintiffs, Counterclaimants, Cross-Claimants. The

provisions of this rule apply whether the party entitled to the

judgment by default is a plaintiff, a third-party plaintiff, or

a party who has pleaded a cross-claim or counter-claim. In

all cases a judgment by default is subject to the limitations of

Rule 54(c).

(e) Judgment Against the United States. No judgment by

default shall be entered against the United States or an

officer or agency thereof unless the claimant establishes his

claim or right to relief by evidence satisfactory to the court.

A-38

FEDERAL RULES CIV. PROC., RULE 56.

Summary Judgment

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declaratory

judgment may, at any time after the expiration of 20 days

from the commencement of the action or after service of a

motion for summary judgment by the adverse party, move

with or without supporting affidavits for a summary judg-

ment in his favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judg-

ment is sought may, at any time, move with or without

supporting affidavits for a summary judgment in his favor as

to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall

be served at least 10 days before the time fixed for the hear-

ing. The adverse party prior to the day of hearing may serve

opposing affidavits. The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law. A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of dam-

ages.

(d) Case not Fully Adjudicated on Motion. If on motion

under this rule judgment is not rendered upon the whole

case or for all the relief asked and a trial is necessary, the

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A-39

court at the hearing of the motion, by examining the plead-

ings and the evidence before it and by interrogating counsel,

shall if practicable ascertain what material facts exist without

substantial controversy and what material facts are actually

and in good faith controverted. It shall thereupon make an

order specifying the facts that appear without substantial

controversy, including the extent to which the amount of

damages or other relief is not in controversy, and directing

such further proceedings in the action as are just. Upon the

trial of the action the facts so specified shall be deemed es-

tablished, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Re-

quired. Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.

Sworn or certified copies of all papers or parts thereof re-

ferred to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be supple-

mented or opposed by depositions, answers to interroga-

tories, or further affidavits. When a motion for summary

judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or

denials of his pleading, but his response, by affidavits or as

otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If he does not

so respond, summary judgment, if appropriate, shall be

entered against him.

(f) When Affidavits are Unavailable. Should it appear

from the affidavits of a party opposing the motion that he

cannot for reasons stated present by affidavit facts essential

A-40

to justify his opposition, the court may refuse the application

for judgment or may order a continuance to permit affidavits

to be obtained or depositions to be taken or discovery to be

had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the

satisfaction of the court at any time that any of the affidavits

presented pursuant to this rule are presented in bad faith or

solely for the purpose of delay, the court shall forthwith

order the party employing them to pay to the other party the

amount of the reasonable expenses which the filing of the

affidavits caused him to incur, including reasonable attor-

ney’s fees, and any offending party or attorney may be ad-

judged guilty of contempt.

FED. RULES EVID. RULE 201, 28 U.S.C.

Judicial Notice of Adjudicative Facts

(a) Scope of rule. This rule governs only judicial notice of

adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one

not subject to reasoriable dispute in that it is either (1) gener-

ally known within the territorial jurisdiction of the trial court

or (2) capable of accurate and ready determination by re-

sort to sources whose accuracy cannot reasonably be ques-

tioned.

(c) When discretionary. A court may take judicial notice,

whether requested or not.

(d) When mandatory. A court shall take judicial notice if

requested by a party and supplied with the necessary infor-

mation.

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A-4l

(e) Opportunity to be heard. A party is entitled upon

timely request to an opportunity to be heard as to the pro-

priety of taking judicial notice and the tenor of the matter

noticed. In the absence of prior notification, the request

may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be taken at

any stage of the proceeding.

(g) Instructing jury. In a civil action or proceeding, the

court shall instruct the jury to accept as conclusive any fact

judicially noticed. In a criminal case, the court shall instruct

the jury that it may, but is not required to, accept as conclu-

sive any fact judicially noticed.

VERNON’S ANN. ST. CONST., ART. XVI, § 50.

The homestead of a family shall be, and is hereby, protect-

ed from forced sale for the payment of all debts, except for

the purchase money thereof, or a part of such purchase

money, the taxes due thereon, or for work and material used

in constructing improvements thereon and in this last case

only when the work and material are contracted for in writ-

ing, with the consent of the wife given in the same manner as

is required in making a sale and conveyance of the home-

stead; nor shall the owner, if a married man, sell the home-

stead with the consent of the wife, given in such manner as

may be prescribed by law. No mortgage, trust deed or other

lien on the homestead shall be valid except for the purchase

money therefor, or improvements made thereon as herein-

before provided, whether such mortgage or trust deed or

other lien shall have been created by the husband alone and

together with his wife, and all pretended sales of the home-

A-42

stead involving conditions of defeasance shall be void.

VERNON'’S ANN. ST. CONST., ART. XVI, § 51

The homestead not in a town or city shall consist of not

more than 200 acres of land which may be in one or more

parcels with the improvements thereon; the homestead in a

city, town or village, shall consist of a lot or lots, not to ex-

ceed in value $10,000 at the time of their designation as

homestead, without reference to the value of any improve-

ments thereon; provided that the same shall be used for the

purpose of a home, or as a place to exercise the calling or

business of the head of the family; provided, also, that any

temporary renting of the homestead shall not change the

character of the same, when no other homestead has been

acquired.

VERNON’S ANN. CIV. ST., ART. 3833 Homestead

(a) If it is used for the purpose of a home, or as a place to

exercise the calling or business to provide for a family or a

single, adult person, not a constituent of a family, the home-

stead of a family or a single, adult person, not a constituent

of a family, shall consist of:

(1) for a family, not more than two hundred acres,

which may be in one or more parcels, with improvements

thereon, if not in a city, town, or village; or

(2) for a single, adult person, not a constituent of a

family, not more than one hundred acres, which may be in

one or more parcels, with the improvements thereon, if not

in a city, town, or village; or

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A-43

(3) for a family or a single, adult person, not a consti-

tuent of a family, a lot or lots not to exceed in value ten

thousand dollars at the time of their designation as a home-

stead, without reference to the value of any improvements

thereon, if in a city, town, or village.

(b) Temporary renting of the homestead shall not change

its homestead character when no other homestead has been

acquired.

VERNON'S ANN. CIV. ST., ART. 3835

Interests in land exempt from satisfaction of liabilities

The homestead of a family or a single, adult person, not a

constituent of a family, and a lot or lots held for the pur-

poses of sepulchre of a family or a single, adult person, not a

constituent of a family, are exempt from attachment, execu-

tion and every type of forced sale for the payment of debts,

except for encumbrances properly fixed thereon.

VERNON’S ANN. CIV. ST., ART 3836

Personal property exempt from satisfaction-of liabilities

(a) Personal property (not to exceed an aggregate fair

market value of $15,000.00 for each single, adult person,

not a constituent of a family, or $30,000.00 for a family)

is exempt from attachment, execution and every type of

seizure for the satisfaction of liabilities, except for encum-

brances properly fixed thereon, if included among the follow-

ing:

(1) furnishings of a home, including family heirlooms,

and provisions for consumption;

A-44

(2) all of the following which are reasonably necessary

for the family or single, adult person, not a constituent of a

family: implements of farming or ranching; tools, equipment,

apparatus (including a boat), and books used in any trade or

profession; wearing apparel; two firearms and athletic and

sporting equipment;

(3) any two of the following categories of means of

travel: two animals from the following kinds with a saddle

and bridle for each: horses, colts, mules, and donkeys; a

bicycle or motorcycle; a wagon, cart, or dray, with harness

reasonably necessary for its use; an automobile or station

wagon; a truck cab; a truck trailer; a camper-truck; a truck;

a pick-up truck;

(4) livestock and fowl not to exceed the following in

number and forage on hand reasonably necessary for their

consumption: 5 cows and their calves, one breeding-age bull,

20 hogs, 20 sheep, 20 goats, 50 chickens, 30 turkeys, 30

ducks, 30 geese, 30 guineas;

(5) adog, cat, and cther household pets;

(6) the cash surrender value of any life insurance

policy in force for more than two years to the extent that a

member or members of the family of the insured person or a

dependent or dependents of a single, adult person, not a con-

stituent of a family, is beneficiary thereof;

(7) current wages for personal services.

(b) The use of any property not exempt from attachment,

execution and every type of forced sale for the payment of

he a

A-45

debts to acquire property described in Subsection (a) of this

article, or any interest therein, to make improvements there-

on, or to pay indebtedness thereon with the intent to de-

fraud, delay or hinder a creditor or other interested person

from obtaining that to which he is or may become entitled

shall not cause the property or interest so acquired, or im-

provements made, to be exempt from seizure for the satis-

faction of liabilities under Subsection (a) of this article.

(c) If any property or any interest therein or improvement

is acquired by discharge of an encumbrance held by another,

a person defrauded, delayed, or hindered by such acquisition

as provided in Subsection (b) of this article is subrogated to

the rights of the prior encumbrancer.

(d) A creditor must assert his claim under Subsection (b)

and (c) of this article within four years of the transaction of

which he complains. A person with an unliquidated or con-

tingent demand must assert his claim under Subsection (b)

and (c) of this article within one year after his demand is

reduced to judgment.

V.A.T.C., Bus. & C., § 26.01

(a) A promise or agreement described in Subsection (b)

of this section is not enforceable unless the promise or agree-

ment, or a memorandum of it, is

(1) in writing; and

(2) signed by the person to be charged with the

promise agreement or by someone alwfully authorized to

sign for him.

A-46

as eacececnncnetl

(b) Subsection (a) of this section applies to

(1) A promise by an executor or administrator to

answer out of his own estate for any debt or damage due

from his testator or intestate.

(2) A promise by one person to answer for the debt,

default, or miscarriage of another person.

(3) An agreement made on consideration of marriage.

(4) Acontract for the sale of real estate.

(5) A lease of real estate for a term longer than one

year.

7 A 42.

(6) An agreement which is not to be performed within

one year from the date of making the agreement. (R.S. Art.

3995)

Slay 3

(7) A promise or agreement to pay a commission for

the sale or purchase of

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(A) an oil or gas mining lease;

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(B) an oil or gas royalty;

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(C) minerals; or

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(D) a mineral interest.

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THIS IS TO CERTIFY THAT THE ATTONNCY V/HOSE NAME APPEARS ON

SIDF OF THIR CAAD DULY ENROLLED AAR AN AT-

TORNEY i THE SUPREME COURT OF renee oe ANO MAS COMPLIEO WiThH

‘Win onnenewmmea ACT AND IS A MEMBER OF THE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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