Petition — Lake Livingston Washateria, Inc. v. Hasty
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
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,
A-10
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
A-11
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
A-12
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
A-13
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).
A-14
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
A-15
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).
A-16
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
A-17
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
A-18
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
A-19
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).
A-20
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-
A-21
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.
A-22
(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-
A-24
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.
A-26
(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.
ed eee
PE en. ee eee
Ce ed
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
a
ee Sewitll . mon PS Miaihg Aaa abet ni, Kalan OX
ie nities
ea arlge iy WS Te SY
a ee ee ee ee) ts eset
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
ia at i Nad atin i adil Lah MAE DR! SRO A LM WMS A OLA iS Wel Aah ills ec a> snl NASB il DOP ens 90 hal AD bar te bas
eesbatins ey ee
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.
Midis agi e tb set el, 26 he al ee
ea nein UY tieik Gna tk in A neni. Sah dale Aiea haku
ae uh
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
ee -
Wal wheat ated teal wd 14s Dutet weenie oath ety
pe a re
ee Pv. ee ee re ey, eee,
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
> €3 €o €o €t #
(A) an oil or gas mining lease;
> €o > €) OF ES
An Bitness Whereof arte at ary herd and ahr Mis seal of the apemme is
Aoutl al Tatlin, thes Me AT ey Saptember
(B) an oil or gas royalty;
«>» €s @€>
aval
-
ae
(C) minerals; or
SN ROTA NE lb PE SO Bag TPB ES RC, Ao Aan P 80D PS MERRY “Sail lM A PSL saa Nae ct eb tap AONE
(D) a mineral interest.
m pr
ated ho
BEST GOPY AVAILABLE
A-49
A-48
TPS tor’
ee ee Me Me A
om Juv Ihe Aprere ppp moma” Mg ™
1
Sy
i ddns pvp Qup
ey DUIS Uddq SDY
i Vim)
3
wupipoid sj y
adqursut Huyoa
732324
PL PERET NEY FLO Ee mayer Ain dae RMT aT Tee erie POR ANTS Or Cae ars ~ i . CNR ARE ALT TN
ser — fo Muy
WILE ‘We, (MV SAS
MY, SNORE
joy byte Myf 111 Uff — : “ikki Ap af fLOO> ,
Ve SVU POUYE)I4Y., — Sera We A f?
vx. ft PU f, :MEIuNes
A-50
dae meceseecee sete rts tae os amen may
{. SU; "has Mi. a Moog Wee base AO |
. ATTORNEY eo tee tte tee oo ae Cantts On wEaS oa i
{1 JUNE le 1972 TO MAY 31e 1973) |
4
ELIJAH W RATCLIFF |
#16559000
5819 oe DR f
ous TX 77033° j
“eA edie A (ty/ 20114 |
GS ae _iP
ae Oo ee eee se ee ee ar eesti
.
;
| BACK OF CARO }
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.