Answer to Petition for Certiorari — Miles v. Tomlinson

| Otfice-Supreme

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-IN THE

S. AUG 16 1063

DAVIS, CLERK ©

Supreme Court of the United Staths—

Octonss Team, 11 1963. -

No. 290

STEWART OIL COMPANY, a Conronattos ; M#CHIGAN

OIL COMPANY, a Corvoration; STEWART PRO-

ca INC., a Corporation; KENNETH PATTER-

_ SON; F. STEWART; W. ROLLAND STEWART;

. FR ANK J. TIERN AN axp MORRIS YARBROVE,

“Plaintiff s-PRe sponde nts,

Us.

SOHIO PETROLEUM COMPANY, . ;

Defendant and Counter Clatmant,

v8.

WALTER’ FE. KLINE; STELLA P. KLINE: R. E.

HAYES; W. T. FREDERKING axp A. P. W AGEM AXN,

Counter De fe ndants- Petitioners,

and

CARL E. MOSES: DAVID R. STEWART asp DONK

BROS. “COAL & COKE COMPANY, :

ANSWER TO PETITION FOR WRIT OF CERTIORARI

. TO THE UNITED. STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT.

C.

RALPH DPD. WALKER, b, 3 CHARLES. WHAM, Ss

WAYNE P. WiLLIAMS, JOHN DP. WHAM,

Watkin & WILLIAMS, , WiamM & WHAM,

- 1S Illinois Aventie, ., viz East Broadway,

East St. Louis, [inois, Centralia, [linois,

Attornena for Counter- :

defendant-Respondent TOM E: GRACE, .

Donk Bros, Coal & Coke ~° 11814 South 17th Street,

‘Company. Mattoon, Illinois...

JOHN J. YELVINGTON, Attorneys. for Plaintiffs-

1161S Broadway, Respondents.

Mattoon, Hlinois, , ;

Attornen for Counterdefend- Be

ants-Respondents Carl E.

Moses and Darid R.,

Stewart. ‘

THES ‘THORP-WARRER PRINTING COMPANY, CHICAGO ’

Counter Defe seated Re -sponde nts. -

Cc

>

INDEX. -

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Opinions Below ........... Ranguxaes parc ee ewe ;

Jurisdiction for Rev iew. Seeeve ns phpnce ae eo Mee eRe

Questions Presented * Soe Pee ret eee eres ee

Grounds in Objection to Review:

1. The Petition Shouid Not Be Entertained. .

II. ‘The Distriet-Court Had Jurisdiction .......

Ill. The Deed Construction is Governed by Ih- ,

nois Law and Has Been in Accordance

A: ; Ge (asc bwiee s whee acne aes

IV. The Findings of Fact Are Supported and

Further Review Is Unwarranted ..%.......

Aipeiitin: A‘*—Statutes and Court Rules lavabeud.

: Cirations.

Adkins v. Adams, 7-Cir., 152 F. 2d 489, 492° (1945)...

Bierman ¥ _ Mareus, 3rd Cir., 246 F.: 2d_ 200, 205,_e¢ ,

de nied 336 U. 9. 93 41957) Be Ag naa Nana ers

Carpenter v. Strange, 141 U. Ss. Si, 105, 106,.11 s. Ct. -

960, 966, 35 L. Ed. 640, 647 (1891) wats ees joaaes

Eichel v. U.S. F:& G. Co., 245 U.S. 102; 104, 62 L. Ed.

ek gs eer ree

Fall v. Eastin, 215 (7S. 1, 8, 30 s. Ct. 3, 6, 54 L. Ed.

65, 69 et seq. (1909) ...... A PEReN eeu ys cavee Ent

Glenn Falls Indemnity Co. v. U. S., Sth Cir., 229 F. 2

BIO, FISSTE- (IBN) «vo oes eck gu ccae eee oer ae

Goodyear Tire & Rubber Co. v. Ray-O-Vae Co., 321

U.S. 279, 278, 88 L. Ed. 421, 724 S. Ct. (1944)...

. oO

R-

a |

oN

qr

Vig. ye ee

Gordon v. Gordon, 1955, 6:IlL. 2d 572, 576-577 .....,..

Graver Tank & Manufacturing Co. v. Linde Air Prod-

” ucts Co., 336 ©. S. 271, 270,98 L. Ed. 676 ery oe

Hardy v. Greathouse, 406 Iil. 365, 373, 94.N EL 2d 134,

BO CE i oles Seeds cows ooo bas Caw eg aed wees

Heleomb v. Aetna Life. Insurance Company, 10th Cir.,

Loa BF. Dd D77, OS2Z (1958), cert. de nied 358 U. S.-879 ©

Jilek v. Chicago, Wilmington ’& Franklin Coal Co., 382

lll. 241, 245; 47 N. E. 2d 96, 98 (1943).....%......

Keen v. Cleveland, C. C. & Si. L. Ry. Co., 392 Ml 362,

71. 64 N. E. 2d 499, 503 (1945) .. 0... oe et Pan

Me Allister v. United States, 348 U. S. 19, 20, 99. L. Ed.

90, Bh, 75. BB. CR. 6 CUBS) 2.5 22s ee Cee ea L aa

Metropolitan Life Ins. Co. v. Mason, 3rd Cir., 98 F.

2d 668: 669'°(1988) .......2..6<. EAs ie: seats .

Muller: v. Dows.94-T) S444, 449, u 1. Ed. 207, 209

(207EE 5. OAs eee lee ad eee eee ea Ce Con ae

Nance v. Donk eee Coal & ies Co., 13 Hl. 2d 399,

407-410, 151 N. Eo 2d 97, 101-103 (1958) Peale ats ,

New York Lite Ins. Co. Vv. Welch, C. A. D. C., 1961, 297

Fr. 3 2d 780, ¢ ON anaes Mn ceaddeuunes

Robe ris v. Dazey, 284 tl. 241, 244, 119'N E. 910, 911

(19S) ...2 eee Leh be tenons bv kaa te kai

Shell Oil Co. vi Dye, 7 Cir, 135 F. 24° 365, 368-369

OMA. e275 ok Soe ae eas a pee

Shell Oil Co. v. Moore, 382 TLL. 556, 565, 48 N. E. 2d

6 06 MON 2 aS eh eee ees

Tope & al. v. Tope et ali 370 MIL. 187, 191, 18 N. E. 2d

ee ee A oe ee ee

U.S. v. Acord, 10th Cir:, 209 Fr. “09, 712 (1954)

.

SE OE Pu aa et ie cee eet oar 6

| Walter Vv. ‘Sohio Petroleum Co., 402 Lil. 33, 4. 83 N. .

Oe ie eas es

Wilson v. Wilson, 268 ll. 2 ), 273, 100 .N. E. 36, 37 :

Pata EM a ee ee Ry ee aC ae by ee OR) ee oe sR a a 8 -

> i.

gee

: < \ ‘ be ov

ry y {

Ws

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; *

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U.S. v. Sentinel Fire Ins. Co.; Sth Ci ir., 178. F. 2d 2 217,

294.995 (1949) o

%

o— frrene Court of the United States _

IN ‘THE

OcToBER TERM, 1963.

STEWART. OIL COMPANY, a Corporation ; MICHIGAN

OIL COMPANY, a. Corporation; STEWART PRO--

ly INC., a Corporation; KENNETH PATTER-

SON; F. STEWART; W. ROLLAND STEW. ART;

PRANK J. TIERN, AN axp MORRIS Y: ARBROVE,

Plaintiffs-Respondents,

Us,

‘*. -s SOHIO PETROLEUM COMPAXY,

‘Defendant and Counter Claimant,

z rs.

WALTER KE. KLINE; STELLA P- KLINE: R. KE.

HAYES; W. T. FREDERKING anp A. PL W. AGEMANN,

‘Counter Defendants-Petitioners,

. and - es =. *

CARL E. MOSES: DAVID. R. STEWART ann DONK

BROS. COAL & COKE COMPANY,

Counter Defendants-Respondents.

| ANSWER TO PETITION FOR WRIT oF CERTIORARI

- TO THE UNITED STATES COURT OF .APPEALS

FOR THE SEVENTH OIRCUIT. oo

—_-

iccoaitias Stewart Oil ‘Denes a Corporatiow,;

Michigan Oil Company, a-C orporation,; Stewart Producers, |

. Tnc., a Corporation; — Patterson, G. F. Stewart,

Se

/ |

i

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W. Rolland-Stewart, Frank J; Tiernan, ,Morris Yarbrove,

Car] E.. ‘Moses, David R. Stewart and Donk Bros. Coal &

‘Coke Company, hereby answer and oppose. the Petition .

for Writ of Certiorari to ‘review the judgment ‘of the

Upited States Cirenit Court of Appeals for the Seventh

€ireud entered on April 10, 1963, in the above entitled

cause, were iere e

OPINIONS-BELOW. .

‘The Court of Appeals Opinion here involved is reported

in 315 F. 2d 759. -As Petitioners state, the District Coyrt

opinions appear in 185 F. Supp. 765 and 202 EF. Supp. 942.

JURISDICTION FOR REVIEW.

The judgment sought to be reviewed was entered’ by

-the Court of Appe als for thé Seventh Cireuit on April : | a

1963.. (See Appe ndix D, page 27a, attached to the petition,

filed herein), and not on April 15, 1963 as Petitioners

state’ on page 2 of their petition. No petition for. rehear-

ing was filed. No extension of ‘time was applied for or

granted within which to file Petition for Writ of Certiora

The petition for Writ of Certiorari was filed herein on

July 19,1963, °- . -. A

Jurisdiction is not properly invoked, as petitioners state,

under Supreme Court: Rule 38-5 (b) as there is no rule

sO: ‘numbered. . :

QUESTIONS PRESEN TED.

1. Shouid ‘this Court entertain a Petition for Certiorari

+ filed more than 90 days after the entryof the judgment of

- the Court of Appeals contrary to 28 USC see. 2101 (@)

and Supreme Court Rule 22(3)—there having ben no.

éxtension, within the 90 days, as Asitas oases by Supreme

Court*Rule 34 (2)? : .

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3

2.. Was the District Court without jurisdiction? ir

_3. Has the deed’ been construed properly under IIHi-

nois Law? clive al . oo

“4. Are thefindihes of fact upon which the District

» . Court denied reformation, which findings were sustained - ,

’ by the Court of Appeals, clearly, erroneous? .

STATUTES AND COURT RULES INVOLVED.

e

"28.U. S. C. see. 1332 (Appendix *A’? herein 12).

28 U.S. C. see. 1335 (Appendix ‘*A”’ herein 2).

- 28-0. S. C. see. 2101 (Appendix ‘*A* herein 11).

28 U.S: C. Rules ‘of Civil Procedure, Rule 13 ( Appe n-

dix ahd iy herein 18). 2

28 U. . Supreme Court Rules, Rule 19 (hnpieniis

“_. tet 12): . oud eth

28 UL S.C. Supreme Court Rules, Ru.. 22 (Appendix

“_ herein 11). we

28 U. S. C.. Supreme Court Rules, Regle 34 (Appendix

—_ herein: 11). =

Illinois: Revised Statutes, 1961, (h. 110, sec. 7 and § ;

(Appendix ‘“A’’ herein 13). - A i

4° -

GROUNDS IN OBJECTION -T) REVIEW.

I.

The Petition Should Not Be Entertained,

This Court ought‘not entertain the petition filed herein

100 days afte? the entry of the Court of Appeals judgment.

The filing of the certified transcript of the record on June.

21; 1963 did not’ comply with Rule 29 (3) which requires

both the transeript and petition to be filed within the ‘pre-

seribed ‘time of 90 days. 28 U. s. [va 2101, {c). The fact.

that. the transcript of record was filed well in advance of

the time limitation demonstrates that the delay was not

caused by the petitioners’ inability to obtain the record.

The delay in filing: the petition is wholly unexplained,

; and petitioners, aware that the time limitation was: expir-

ing; did not, within the time limitation; apply for an_exfen-

sion of time as permitted by: Rules, 22 (4)eand 34 (2).

Perhaps because they knew that sisch applications are’ not

favored, they chose to flout the rule, and file the petition

aftet the time limitation had, expired. Had ‘petitioners

at the time they filed their, petition, filed an application for

an extension of time to file their petition, the Clerk of: this

Court wouid have refpsed the same’ under Rule 34 (2

While the Court’s rffles do not authorize the: clerk to re

- fuse to receive-a petition presented after ‘the time limita- _

tion has-expired, the mandate. of ‘the ‘rules is*certain that

_ the petition must be filed within the time limitation. The

course taken by petitioners here: circumvents the rules

-and should not be tolerated. y

” The District Court Had Jurisdiction.

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‘ 7 . . .

Federal. jurisdict ee stems from the initial actioz.. by_

Plaintiffs, all Michigan residents, to recover payment for. -

‘‘working interest oil’? w hich they had discovered, severed

from the land, possessed as * personal property ‘and mar- .

keted ‘to the Defendant, Sohio bot th Company, an’

Ohio Corporation, pre shad''so- atee pted the of but failed’

to pay for it:

No: other person, firnt or cana: a necessary

party, to this Action and Plaintiffs did not contemplate any

quiet title proceedings or deem them necessary in view

of the’ Tlinois Law with réspéet to.dil and gas ownership

through a ‘eoal ayd offier mineral’? conveyance. Sohio

Petroleum Company , fill: it~ counterclaim. and ‘brought

? the additional parties pursuant toe Rule. T3(h)- of the

Riles of Federal Practice and Preécedure w hich so author-

izes and specifically provides that **their joinderwill not

- deprive the court. of juris liction: ofthe action.’

When a district court, has jurindiovide: of the prineipal

action, tt-also has cognizance of any ancillary proceeding °

therein, regardless of citizenslfip of the parties, the amonnt

in- controversy or any other factor iP would ordinarily.

determing jurisdiction’ Fichel v. U.S. FL & G. Co., 245

U.S. 102, 104-62 L. ed. 177, 197-178 aes ): United States

‘Acord, 10th Cir. 909. F. 2d 709, 712. (1954); Glenn Falls:

nde mnity Co. U.S, 9th Cir..239°F. 2d 370, 378-378

(1955).

Petitioners argue that the. Federal Interpleader Statute -

(see... 18 Title 9 1. S.-C.) dees not provide jurisdic.

tion support, for the Sohio Petroleum Company Counter:

claim. This pAitute merits and receives liberal construe-

tion. It is designed not only to protect stakeholders from.

4

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recs Soe

double or multiple liability but,-also, to protect them from.

_trouble and expense of double or multiple litigation. .Vew

Yor.. Life Ins. Co.v. Welch, C. A.D. C., 1961, 297 F. 2d 787,

799; Metropolitan ei Ins. Co. v. Mason, 3rd Cir. 98 F. 2d

668, 669 (1938) ; U. . Stutinel Fire. Insurance Co., 5th

Cir., 178 F.. 2d 217, (i949); ‘Bierman v. Marcus, 3rd Cir.

246 F. 2d 200, 205; (1957), cert. denied 336 ULS. 98. ‘Pwo or

.

more’ of the *“tadver rse claiman#s"’ were of diverse eitizen-_

ship **as defitte d in-see, 1382 of this title’. 28°U.. S. C..

Section 1335, "Surely, a stakegolder is not deprived

of the statutory protection through the existence of addi-

wees claimants with common state citizenship. Holcomb

*, Aetna Life ‘This. Co., C. A. Oklahoma, 1958, 255 F 2d ot i

589, cert. denied 358 ee S. 879. o

Furthermore, Sohio Petroleum Company, is an, Ohio

Corporation, . whereas ‘the remainifig parties are cithens

of other states. “Consequently, the counterckaim is inde- °

pendently: maintainable (as an Cguitable interpleader

“actioy) under he gener diversity statute. Brisacher w.

- Tracy-Collins Tus C 0, ip 919, 52 oe A: 16, 1960) ;

John Hancock “Mutual ae Insurance Co. v. Kraft ct al.

200 F.2d 952, 953 (C. A. 2, 1953). |

Laat } 7 ’ ? Ly a i) : a

Petit: - rs" concern over the land sitns is of no conse- .

quence, Whe District Court possessed jurisdiction of all

parties having: or claiming any right, title or interest.

It has been long recognized that in these ‘situations a

Federal, Court may ‘effectively settle tifle disputes with

respect to lands situafe outside, its territorial jurisdiction.

Mblier v. Dows, O44 U.S. 444, 449; 24 1, edd. 207, 209 (1876) ?

Carpenter -~. Strange, IAW. S. S87, 105, 106; 11S. Ct. 960,

966, 35.1. ed. 640, 647 (1891): Fall v. Eastin, 215 U.S. 1,8;

30 S.Ct. ®, 6; 54 1. ed. 65, 69 ef seq. (1909), IHinois courts

are Likewise empowered.’ Gordon v. Gordon, 4955/6 Ml. 2d

972, 576-577. * ay nhs

‘ Furthermore, the I!linois Rule that real estate quiet title .

. go

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actions are to be brought in’ the County sia prop- |

erty or ails part of it is situated is only a matter of

venue and not a jurisdictional limitation. This is ev ident :

from a reading of Sections 7 and & (the applieable - provi-.

‘sions) of the [linois Civil Practice ‘Act wherein it is also:

provided that no such action is vojd et of improper

venue and that ‘tall objections of improper venue are:

waived by @ defendant unless a-motion to transfer to

a proper venue ismade hy him on or before the date upon

whch he is required to appear or within any further time

that may be granted him to answer or nfove with respect

to the complamt.“" An action for settlement of Bond

County land Title ‘disputes eould be effectively maintained

in St. Clair County or any-other illinois County subject,

only, to a vere transfer pursuant to timely motion as

provided by the’ Civil Practice Act. Consequently, federal

jurisdiction is also.sustamed by application of the princi.

ple that the law of the forum determines whether an action

ix transitory or strictly loeal. - | .

The District Court, jurisdiction is sustaimable : (a) As

ancillary to the initial actio?: (hb) Unger the federal: inter.

pleader sti atute? (e) Under the dete ie diversity statute ;

Ad) By the Illinois Law with respect to venue ; and (e)

Capacitr to “tally and effectively settle the “controversy

through éxereise of ifs. jurisdiction over all parties having

or clai pe any right, title or interest in the subject

matter. : . aS

fe a bee

The Deed Construction Is Governed by Illinois Law aa

Has Been in Accordance Therewith.

T he decision of the

; trict ‘Court’s action in

‘onrt of Appeals affirming the pis .

onstruing the deed in question, to

yr strict eonformity with the law

- convey oil and: gas is

of Illinois.

.

8

- Under Illinois Law, a conveyance of ‘*all coal and other

_rineral’’ has a settled meaning and includes oil andegas.

Shell Oil €'0. v. Dye, 7 Cir, 185 BF. 2d 365, 368, 369 (1943) ;

« Shell ore Ow. gies 382111. 556, 565, 48 N. EB. 2d 400, 405

7 (1943) ; Jilek v. L, _& F. Coal ( 0. 382 Ili. 241, 245, 47:

N. E. 2d 96, 98 pene ; Walter vy. Sohio Petroleum Co., 402

Ill, 33, 41, 83 N. E. 2d 346, 349 (1948) ; Adkins v. ‘Adams,

7 Cir., 152 F. 2d 489, 492 (1945). cea

The JI linois’ Supreme Court has held that -a- “*eoal and

other -mineral’’ deed identieal in language and content

with the one here involved, except as to parties grantor

cand land description, is unambiguous and conveys oil

and gas as a matter of law. Mate*B. Nance et al. v.‘Donl:

Bros. Cow! and Coke Co. 13 Ul. 2d 399, 407-410; 151 ™ E.

24 97, 101-103 (1958).

Where there is no ambiguity a the terms used in a_

deed or where the language of a deed has a settled legal

meaning, the instrument} itself is the only eriterion of the

intention of the parties and extrinsie evidence is not admis-

sible to aid in its-constrnetion. Wilson v Wilson, 268 Ill.

970, 273: 109 N. BK. 36, 27 (1915): Neen v. Cleveland C. C.

if’ St. lL. Ry. Co, 392 Til. 362, 371; 64 N. E. 2d 499, 503

(1945): and Roberts v..Dazey, 284 TI. 241, 244, 119. N. E.

910, 911" (1918).

It is egident from, the petition filed herein, that peti-

tioners disagree with the local law of-IUinois as inter-

-.eted by its courts. It eannot be seriously urged that the

Courf of Appeals has rende ‘red a decision in conflict with

applicable -local decisions. *. 6

Petitioners’ disagreement with ‘these. decisions eannot

chang: the illinois Law or its application herein. They

were without any legal title to the oil or its proceeds and

could only reeover through a reformation of the deed.

They failed toeprove any right of reformation. Phe evi-

dence and District Court’ s findings réfute the allegation

9

that the parties to the ‘‘coal and other mineral*’ convey- -

ance did not intend to include the oil and gas. Conse-

» quently, evel. ‘though the ‘instrument were take ,

biguous, and subject to ionnsage Avaige 1 the a

- extrinsic evidence, the ambiguity vouid have been

- necessarily be“resolved against the Petitioners.

e ; ° \

: IV. °

The Findings of Fact Are Supported and Further Review

Is Unwarranted. ;

a

Petitioners sought ‘reformation of the deed made on

‘ September 215.1907 because of mutual mistake of the

grantor and srantes, or beeause of the frand of the grantor

and mistake of the grantee. In such y ease. Hlinois law

requires the proof to be strong and convincing. Hardy. v.

Greathouse, 406 Hl. 365, 373, 94 N. E. 2d 134, 138 (19: 50).

A mere preponderance of the sins; mee is nat sufficient.

Tope et al. v. Tope et alt, 370 Ti. 19r, 18 N. E. 2d 209,

231 (1938). .

The District Court en the evidence offered insufficient

- to warrant reformation, and the Court of Appeals affirmed

the findings. When the Court of Appeal= bas aceepted the

District Court’s findings, there must ‘be a strong case to

justify this Court in setting.aside sucli.tindings. Goodyear -

Tired Rubber Co. v. Ray-O-Vac, Co., 321 U.S. 275, 278, 88

‘L. ed. 721, 724 S.Ct. (1944). aise seca d Manufac-«

turing Co. v. Linde Air Products Company, : Job a): eae ee

975, 93 L. ed. G76 St: ( “t. This court \tand~ in the same

position as the Court of Appeals in reviewing the findings °

o” the District Court. McAllister v. United’ States, 348

U.S. 19, 20, 99 L. ed. 20, 24, 75-8. Ct. ok D4). The ttadings

- are clearly erroneous only when the reviewing eourt on

the entire evidence is left with the definite and firm eon

viction that a mistake has been made. .

: \

“10

‘In this case, because of the lapse of time, the evidence in

support of, and in opposition to, the asserted right fo re-.

form an instrument more than fifty years old was at best .

sketchy. There was no direet evidence to prove what tran-. .

spired between the parties at the tire the deed in question

was executed and delivered. . (Appéllants’ Appendix in

Court of Appeals, p. 109.) The evidence offered by all

parties was principally collateral evidence pertaining to

collateral fransactions from which conflicting inferences

might be ‘drawn, ._ cars:

No useful purpose will be served in again reviewing.the

mass of exhibits and testimony to judge the validity of the

inferences drawn and conclusions: reached by the District

Court.

CONCLUSION.

The petition has beén filed after the ‘‘time prescribed by

law”? (28 U.S. C. 2107; (c), and_Rule 22), and ignores the-

guide lines ‘‘governing review on certiorari’? prescribed |

by Rule 19. It is simply a reargument of matters fally

presented to and duly considered by the Courts below.

There is no basis for further review.. :

Respectfully submitted,

RALPH Db. WALKER? CHARL Ey~ WHAM,

WAYNE P. WILLTAMS.

Wayker & Wiiliams.

SIS‘Illinois Avenue, ~

East St. Louis, Illinois, * -

Attorneus <for Respondent

Donk Bros. Coal « Coke

_Companyu. |

JOHN: J) YELVINGTON,

‘1161S Broadway,

Mattoon, Ilineis.

Attorney for’ Respondenta

Carl E. Mowes ond barid

R. Stewart

.

JOH Po WHAM,

Wiam & WiataM,

212 East Broadway,

Centralia AMlinois,

TOM E. GI ACE,

118%, South 17th Street,

Mattoon, Tilineis,

Attorneus for Reapondents

Stewart Oi Company, @

Corporation; Michigan Oil

Companu, @ corporation:

Sterrart Producers, Ine,

a. corporation; Rhenneth

Patterson: GF. Stewart;

Ww. Rolland = Stewart:

Frank J. Tiernan and

Morris Yarhrore-

eo

APPENDIX ‘‘A’’.

‘

STATUTES AND COURT RULES INVOLVED.

28 U.S. C. See. 2101, in pertinént part:

““(¢) Any other appeal or any writ of certiorari

,intended to bring any judgment or decree in a civil

“action, suit or proc eoding before the Supreme | Court for

‘review shail be taken or applied for within ninety days

after the entry of\such judgment or decree. “A justi¢e sql

‘of the Supreme Court, for. good cause shown, may

extend the time for applying for a writ of certiorari

fora es not exceeding sixty days.” “Ne . wis

«

28 U. ", Supreme Court Rules;-Rule 22 in pertinent

part: . , : VR

**Review on-certiorari—time for petitioning.

1. A pefition for writ ef certiorari, to réview the

judgment of a state court of last resort in a criminal

case *-#

‘2.0 A petition for writ of certiorari to review the

judgment of a court of appeals ina criminal case * * *-

3. A petition for writ of certiorari in all ether

* cases shall be deemed in time when it and the certified

‘record required by Ride 21 are filed with the Clerk

within the time prescribed. by law.”’

f° 4, Application for extension of time within Which

to file a petition for writ of certiorari * * * must set

‘forth with. specificity the reasons why the granting

of an extension of time is, deeme d jus stified. gh sfc Sue *h

applications are not favored,’

28 U.S. C. Supreme Court-Rules, Rule 34, paragraph 2:

“Whenever any justice of thix court is empowered

by law or under any provision of these ‘rules to extend

the time within which a party may petitiof for a writ

‘of-certiorari or file-in this court his record on appeal

or any Saints or paper, an application seeking yn

a eee

extension shall be timely if it is presented to the clerk.

‘within the period’ sought fo be extended. The elerk

will refuse to reeeive any application for extension

sought to be presented ufter expiration of such period.”’

ani g

28 U.S. C. Supreme Court Rules, Rule 19 in pertinent

” part: Lge ereg RAO era Paap l coe

AGT “ Coiisiderations governing: review on cortiorari. '

“1. A review on writ of certiorari is not a matter sat

of right, but of sound judicial discretion, and will

be granted only where there are special and important

reasons therefor. The following, while neither eon-

trolling nor fully measuring the court's diseretion,

: indicate the character of reasons which will be con

sidered. : Paps

‘“‘(a) Where a state court has degided a federal

question: of substance not fheretofore determined by

~ this court, or has’ decided it in a way probably not-in

accord with applicable decisions of this court.

‘*(b) Where a court of appeals has rendered a

decision in confliet with the decision of another court

of appeals on the same aatter; or has decided an

important state or territorial question in a way in

conflict with applicable state or territorial law; or has

decided anu important questién of federal law which

has not been, but should be, settled by this court; or

has decided a federal question ina way in-eontliet with

applieable decisions of this court; or has’ so far de-

‘parted from the accepted and halal 4 course of judicial

proceedings, or SB far sanctioned such a departure dy

a lower court, as to eal for an exercise of this court's

| power of ireaculirserecl :

- 98U.S. C. See. 1332, i In pe rtine nt part:

** (a) The district courts shall have original juris.

diction of all civil actions where the matter in coutro-

versy exceeds the sum of 410,000.00, exclusive of inter-

ves est and costs, and is between: ;

(1) Citizens .of different ‘States;

(2) e*ee¢e#

(3) ee ee ee ee

: os

® = ae

28 U.S. C. See. 1335, in pertinent part:

‘*(a) The district courts shall have original juris-

_ dietion of any civil action’ of interpleadgr or in the °

nature of interpleader filed by any person, firm or

corporation, association or society having in bis or

its custody ‘or possession nfoney.or property of the

” Value. of $500.00 or‘more, ae

ey “TWirer. more adverse claimants, of dive

citizenship as defined in seétion T3%2-Hf- this title, are —

-elaiming or may ¢laim to be entitled to such money or

property * *.* and if (2) the plaintiff has deposited:

such money or property * ° ° into the registry of the

court * * .

“(b) Such an‘action may be entertained although

the tithes or claims of the conflicting elaimants do not

have a common origin, or are not. identical, but are

adverse to and indepe indent of one another.”’

parts.

“(hy Additional Parties May Be Brought In. When

the presence of parties other than those to the original

action is required for the granting of complete relief

in the determination of a counterclaim or cross-claim,

‘the court shall order them to be brought in as defend. -

ants as provided in these rules, if jurisdiction of them

can he obtained and their joinder will notedeprive the-

court of jurisdiction of the aetion”

Ilinots Revised Binteten. 1961, Bar Association Editton,

Ch. 110, in pertinent part:

. . Pte °

Arricie If. VENUE.

oe eeo-e

od.

Pa hd * * >

ies;

“7. Venne—Publie corporations—Loeal actions——

Hibel —Insurance, companies, .* * * (1) °° * (2) Any

action to quiet title to real estate, or to partition or

recover possession thereof or to foreclose a mortgage

ISHS, Rules of ¢ iil Procedure, Rule 13 in-pertinent

°

ea

14

or other lien thereon, must be brought i in the comity. it

which: the real estate or some part of it is situated*’

“8 Wrong court or venue—Waiver—Motion to.

transfer. (1) No order, judgment or decree is void

because rendered in the wrong venue, except in case

of judgment by confession as provided in section 50(4)

of this Act. No action shall abate or be dismissed

because commenced in the wrong venue or court if

there is a proper venue or court of competent juris-

diction to which the cause may be transferred,

42) All objections of improper venue are waived

by a defendant ‘unless a motion to transfer to a proper

venue is made by him on or before the date upon which

he is required to appear or within any: further time

that may be granted him to answer or move with re-

is iat

spect to the complaint