# Petition for Writ of Certiorari — Davis v. McLaughlin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1846%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 833 ## Text we." | Supreme Court of the United Spatesins, asm 1 & ~ FILED IN THE LieRabhy ae * Office Supreme Court, U.S. JUN. 30 1964 October Term, 1964 MarGaArET Davis, et al., Petitioners, US. PauLIneE D. McLAuGHLIN, Administrix de bonis no of the Estate of Ingram M. Stainback, Deceased. Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Court.. Harry B. Dowstnc, Suite 620, 610 South Broadway, Los Angeles, Calif. 90014, _ Attorney for Petitioners. Of Counsel: , LAUREN M. HANDLEY.. Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171. be SUBJECT INDEX | Page NN TNO soi cnisccnnstsnsesnsaninesnsanesenenosnsansne Sessa ae an RS i eascahaentan 2 Statute involved -....--.----cseeseeceteeseeeseeseeseeeeeneenneeneenne 2 Statement OE I a acinccesnhtasnenesavonwinatenstanpbnnnssinonnens 3 Petitioners were unaware of w hat was happening .. 4 Petitioners. can only guess at ‘what Mr. Houston was attempting to accomplish SEE Re a °5 “Additional facts COIN a ascsnsnciseseniensncncinnninoinesannnnsons Reasons for allowance of the Writ .......22..0..--eceeee-- 7 Questions RIE face Sis cies icireinceecc eka tata A Net AN 8 A voluntary dismissal under Rule 41(a)(1) was -PFOPOr 2.2... eeeeeeeeeeeeeees poseseseeseserseesaneesneseseseesseeeceees 2 Argument and. Brief in support of petition for writ of certiorari . Stet i pcanisiaidisha re uxnakeesicaasicatbanecancnageseneehis 10 A. Abuse of discretion NN i Socks cnsscstecincen 10 B. Dismissal with prejudice is a drastic sanction ae, C. Lack of due process appears ............... ae | D. Are these petitioners chargeable with the mis- conduct of their “attorneys ..............2--..-.-.-- ‘14 -E. The law contains built in sate guards .............. 15 UO: SOU IN Mo anc cect caicrnsnsomnies 16 Opinion of the United’ States Court of Appeais for OOF i orcen Mig ge BE RRC, a | \ TABLE OF mpooninns CITED . : y i ? Cus sess Page American Cvanamid Co. v. McGhee. 317 F. 2d 295 a 13 Batber'v. Tuberville. 298 F. 2d 235 ................ ences 13 Bardin-y. Mopdon, 298 Fi 2d 233 oecpeccsceenneen 13 City and = cf San ve nae Leroy. 138 tv U.S. 363. LS. Ct. 364. 34 L. Ed. 109% LEE: |g at v. ee 233 Fed. 721. Ann. Cas. 19I7A 921 pidndversouceesie 08 EBON OA a BO tie 16 De Fillipis v. Chrysler. 116 F. 2d 373 0. cecseeceeeec 10 Gill v. Stolow. 240 F.2d 669 oo..caesccce2eccccccccioce-conessenle 12 Gold v. George T. Moere-Sons. Inc., 3 F. R. D. 201 .-10 Goodwin v. Clement. 277 Fed. 386: 31 App. D.C.:184 14 Independent Productions Corp. v. Loens Inc.. 283° De FO cence ee a 1 hisciie-eniacdennaeipsnioadusesanaeinieied 12 Laird v. Air Carrier Engine. 263 r. 2d 948 ideaacsonean— ae Mott v. Conn, Gen. Lite ins. Co... 2 > F. R. D. 323 ...... 10 Peardon v. Chapman. 1 OF. 2d Rs ee 12 Pearces Metro Petroleum. 138 F. Supp. 791 2200000... 1+ Price.v. McComish.-22 Cal. App. 2d 92. 70 P. 24.972 15 Red Warrier Coal ‘& Mining -. Boron. 194 F. 2d Yann ase TORE RRR NEA LCDS Pees RRL AR aE NOI. HEME NRL A SE 22 Robert R. sizer & Co. « Chiarello Bros.: 32 F. 2d 770? . . “ AE epeceSe PPA TEN, Set Seaulaeba tan adicarg kaanemecescte i lacuatigemtes lo smith v. Jackson. 37 F. 2d 237 cert. den. 20.sec. 321 gat &. S740. 74 1 ed, FAS oe. ae Sole ]= Syracuse Broadcasting Cor, = eek use, 271 F.2d . i Seis eee ee sl Sanat le tS TM icy aa i Abn «ages Sat ae Tavis. Sk & Co 2 POR: Ae 10 a & Page Therrien v. New Eng. Tel. & Tel.. 102 F. Supp. 350 11 United States v. Dickensen, 213 U. S. 92. 53 L. Ed. 2) SG. Ste & S|. purer eter enr een vnnR ES Wane nie CC a Walter v. E. I. DuPont de Nemours & Co.. 1 F. R. D. 321 Gietnlonrich saassnapsiSinceninenitontsonesice nscuavepaneret 12 Wilson v. Folly, 7 F, RD. 649 ooccccccosncnccscsenieechecesyer 10 Pe ~ Rules Rule 23(a)11) Rules or Federal Procedure. ............ & Rule 41 Rules or Federal Procedure ...............0.......... 2 Rule 41(a)’Rules ¢: Federal Procedure -...0000000...... 10 Rule 414a)41) Rules of Federal Procedure . ...... oad eA cane Hea tersnr ax V AERC oe ceca a ee Rule 41¢a):¢2) Rules of Federal Procedure 2.2.6. 8 Tala ek el ice vocanicahice ancien Sieaaiae aoc tuigsagenceeneadieetes 9. 14 sek. Statutes United States Code Annotated. Title 28, See. 1332... 2 «United States Constitution. Fourteenth Amendmen: eicaaenicieoaaes Eee eh HE OMG RM NRE ee TE Textbooks * 5 American Jurisprudence. p. 300 -..00.22.0.2..e cesses: 1: 10 American Jurisprudence. pp. 329. 332 ee. 7 7 Corpus Jers SecmMMBAN. Po BOF anenensnscn see rreevenes. le ae (ols 1 SR IO soc Pee 10 34 Columbia L. Rev. p. 626 .......... Solas edieeinastoaksnicesoase 1] 54 Columbia L. Rev. pp..°624-625 ......::..0.....0001.-. 1] oF Pee CASE TAGS DoF vores ees Genet z 4 IN THE Supreme Court of the United States ‘Octobe? Term. 1964 MARGARE! Davis. ‘ci di.. 2 a { Soe |. Peéttioners. PatLine D. AfcLaccHLun. Administrix de Donuts noi: of the Estate of Ingram -M. Stainback, Deceased. Respendent. Petition for Writ of Certiorari to the United States . Court-of Appeals for the Ninth Circuit Court. To the Honorable Chief Justice and Associate ftistices of the United States Supreme Court: This isian action brought t» entorce a rejected pro- bate credit’ rs Clatth tied against the Estate o: In- _ gram M. Stainback. deceased: Petitioners. the plaistitts and appellants below. re- spectitiliy pray that a Writ of Certiorari. issue to ‘re- r oe 2 9 ~ - e ° view a judgment of the LU. Ss. Court or Appeals ror the Ninth Circuit entered April 2. 19f4. Petition fer Rehearing has been denied. said Judgmen: atfirme a Dismissal of angen action With Prejudice. and was entered by the U. . Distr: ct Court fer the Dis- trict Of Hawatt.on eee D. 1963. a ae Opinion Below. ; The, Opinion of the Circuit Court dated January 22. 1964. is printed in Appendix “4” annexed to this. pe- tition. The Order appealed from is set out in said Opinion. eo : Jurisdictior. ~ Appellee’s “Statement of Fa cts conferring Jurisdic- tion” correctly shows that same is based on diversity of citizenship and.amount in controversy. (28 U.S. C. 7A. Sec. 1332.) [See Compiaint Par. 1, Tr. p. 71 The alignment of the heirs, existifig at the time of the filing of said action | in . United States District Court of Hawaii on December &. 1961. was that-Judge J. Frank McLaughlin., the then administrator. was a resident of the Territory of Hawaii: whereas plaintiff | ‘heirs were residents of various States within the con- tinental limits Gf the United States: petitioners Georgia Mc Pheeter : and Glady O'Connell w ere residents of Cali- ‘fornia: petitioner Mamie White Avery was a resident t Kansas and. each ot ah e remaining petitioners were resi of Missouri... It now also appenr} that these petitioners have been denied the benefits of due process of law, (U. S. ~ Constitution. “XIV Amendment. ) An additional ground ot Jurisdiction thereby turther appears. ee Statute Involved. This case involves the interpretation of Rule 4] of Rules of Federal Procedure. which pertains to“dismissa Soule of actions. More particularly it irivelves the interpre- ation of Rule f1faj(1) and Rule 4]1air2.) as same were applied. by the District Court and -the Court ‘of Appeals to petitioners facts. . Statement of Facts. Petitioners adopt the Chronviogical statement of fact)" contained m tne Appellate Courts opinion pr duced at pages 1. 2. 3 and 4+ of: Appendix *A". Since as the Court has pointed out. Mr. Houston's brief on. their behalt Was in: idequate in that it contained no statement of facts from petitioners’ point. of view. nor did it adequately cover the 17 points of error he appears to have relied on for their benetit. @ further and sippie- * mental statement of tacts appears parecer This action was filed November &, 1901 sin the Dis- trict Court of Hawaii by E. D. Crumpacker Esy petitioners original attorney’ He had accepted his re: tainer on a straight contingent tee basis. ’ The pleadings he prepared and: filed in the Federal District Court sof Hawaii. were probably not his best effort. It now-appears possible that the case might bet-: ter have. wi ingtead filed originally in the Ha: vanan dtate Cireuit/Court. this Mr. Houston att empted to du In. the crigina! Coniplaint tiled ‘by Mr. Crumpacker. Cook Trust Co:. Administrator of the Estate or- Cecile Stainback was not joined either as a plaintiff or as a defendant.- After this action was filed. Judge Me- Laughlin. Adminstrator of the Estate or Ingram W: Stainback. dec’d. himselt di i@d. but thereafter nw Succes- sor Administrator was immediately appcinted. Defendant's first response ‘to petitioners’ compiain: took the form.ot a “Motion to Dismiss or fer More Detinite Statement... Wher. ‘this motién was: filed on June 15. 1962. Mr. Crumpacker made no effort te de- tend his pleadings. but instead on July.6. 1%62. and be- fore any Hearing on the Motion. gave Notice of his he tee aides intention to wikbteaw as petitioners’ attorney. ( Appendix A, p. 3.) | | | This ane on his part was opposed both by peti-’ ‘toners and (surprisingly) by détendants. , Atter a hearing. at which Georgia McPheeters was the only one of the 18 petitioners present. the Court _ announced originally that Re matter of permitting his withdrawal would be -set over to September +. 1962 (see Opinion, Appendix’ “A”, p. +4). nevertheless, on July 2¢,.1962 he was permitted to withdraw. in the course of his efforts to persuade the Court to permit him to withdfaw over objections. Mr.-Crum- packer made statements and disclostres* in open Court which it is believed influenced the entire subsequent cause of the litigation, His remarks directed to Judge Pence indicated that he not only did not care to proceed further, but appears - to have pointed out alleged “defects” and: weaknesses in, petitioners’ case which only defendants themselves night properly have raised. In h's haste to be reliéved ‘as counsel, it appears that he very ettectively SaaS petitioners’ entire law suit. Petitioners Were Unaware of What Was Happening. : During the period of time between July 26th and August 30, 1962 petitioners were entirely without an attorney: They were far removed from the forum of tigation, and all were physically on the mainland. and had no knowledge’ with regard to anything that. Mr. Houston was doing. Specifically, they had no reason to believe that any steps’ might be taken to Dismiss their action for any —5—— purpose whatsoever, and specifically, no permission was ever. granted to Mr. Houston or any other attorney to have done so under any circumstances. When Mr. Brahan Houston ‘took over on August 30. 1962. he was faced with the problem of attempting to repair the damage Mr. Crumpaeker had caused. and attempting if possible. to select a proper forum for the proceedings. On .this date. however, the matter was not yet -at issue. No pleadings other than the “Motion to Dismiss, etc.” had been tiled by defendants. There was as vet no Answer. nor any Counter-claim or any Cross-Complaint demanding affirmative relief on file. It appears that defendant's preparation had not proceeded beyond the. point of taking depesitions in the City of Honolulu where the action iad been tiled. on December &, 1961. For the purpese of cooperating with defendants Mrs. McPheeters had voiuntarily come to Honolulu) trom Los Angeles on her own expense and had given her deposition on the 27th and 28th ot January, 1962. Petitioners Can Orly Guess at What Mr. Houston Was Attempting to Accomplish. ‘It appears to be practice for. an attorney in the ‘early stages of litigation, to Remove his Cause of. Action from the State ‘to the Federal Court. or vice versa from the Federal Court to the Stete Court. de- pending upon what the facts appear to be. Mr. Houston appears in guod faith te have belteved that the case. in the pesture which existed on August 30. 1962 should properly have been removed to the State Court because of possible Probate prablems involved. His right t such removal should have been unchallenged. © 6— : = This may account for, Mr. Houston’s filing of the Motion tor Voluntary Dismissal on August 30, 1962, pursuant to Rule 41(a)(1) and his filing, on the same day ef the new case in the Hawaiian State Cir- cuit Court based on the same claim, but naming Cook Trust Co. Administrator of the Estate of Cecile Stain- back, dec'd as an additional defendant, who was thus joined in the litigation for the first time. (Appendix, -p. 4.) — na On September 7, 1962, appellees objected to this at- tempted voluntary dismissal by moving to strike the Notice of Dismissal or in the alternative for terms and conditions under Iule 41/a)(2). The Order ap- pealed from followed in due course as the result of this motion. (.\ppendix, pp. 4 and 3.) | | Additional Facts Exist. Other important tacts should also be noted: 1.¢. A. . There is a witness availiable who was personally ‘present when Governor Stainback tore up and thereby destroyed the will of. Cecile Stainback. his predeceased wite, shortly before her funeral: 5B. True copies of the will he thus destroyed are available and ¢an be offered in evidence. with proper foundation laid for its offer. C. Cecile Stainback and Ingram Stainback had been married approximately twenty-eight (28) years at the time of her death: the property left by her was sub- stantially all in the nature of community propert:. D. When Governor Stainback. himselt died in 1961, his Probate Estate was appraised at approximately S1.- 000,000.00. ~ —_—/— £. Pauline D. McLaughlin, Administratrix de bonis non of the state of Ingram Stainback, apparently had — not yet been appointed: on August 30, 1962. The of- fice of Administrator was vacant when Mr. Houston filed his first Appearance. : F. Governor Stainback was a person of great wealth. and influence. His administrator and counsel appear to have been highly skilled memibers of the Bar*at all stages; on the other hand, petitioners are all people of little means. “ihe haste displayed by Mr. Crumpacker in abandoning his responsibilities as petitioners’ attor- ney is totally unexplained. Mr. Houston, his succes- sor, appears to have sacrificed his health in attempting to cure the debacle which resulted trom Mr. Crumpacker’s precipitate abandonment of petitioners’ cause. . These facts all affirmatively appear from the record to be produced. Reasons‘for Allowance of the Writ. The U. S. Supreme. Court may review any final judgment or decree of the Circuit Court of Appeals. 10 Am. Jur., Certiorari, p. 529: 27 R. C. L.. p. 1. And certiorari may issue, if the exigencies of the case are such that applicants once had a remedy which by the force ef special circumstances has been lost and which address themselves to the discretion of the court. United States v. Dickensen, 213 U. S. 92, 53 LO Ed 711, 29 S. Ct. 485: 10 Arn Jur., Certiorari, 332. ' e . f . . = - . It appears that without any discernible fault of their own, petitioners now find themselves in a pesition trom which there is no escape unless the requested Writ of Certiorari Issue. es Plainly, it never occurred to Mr. Houston that his of- fer of voluntary dismissal under Rie 41(a)(1) could ever in this early stage of the case be tortured into a situation which could involve the possible imposition of any of the conditions contemplated by Rude 41(a)(2), or any Order of Court, or. any of the procedures which the District Court. subsequently insisted on adopting and applying to these facts. (Appendix A, p. 5.) [Tr. pp. 63-642] ° Questions Presented. ~The “Statement of Points relied on by Appellants” [Tr. pp. 122-126 incl.| suggests ‘seventeen (17) errors. It is unfortunate that Appellants’ Briet as filed by Brahan Houston was insufficient to-present same ade- quately. The District Court’s opinion recognized only two claimed errors. Petitioners respectt ully contend that said issues cannot be compressed into only “two errors.” By so limiting the scope of its ruling, the Appellate Court itself erred. (Appendix A, p. 6.) Inherent in petitioners’ Statement. but apparently not even recognized as such by Mr. Houston, is an addi- tional fundamental error, namely, that under all the . facts of this case have not these petitioners been de-. nied due process of law? (XIV Amendment, U, S. ‘Const.) It affirmatively appears they have had no op- portunity for the fair presentation of their case on the merits in any trial Court. Under the facts it would seem that Rule 25/a)(1), may also be involved. Brft in any event it is certain that Mr. Houston believed that only Rule 41(a)/1) was— applicable. = on A Voluntary Dismissal Under Rule 41(a)(1) Was Proper. The Court did: not under the circumstances of this case have any right to treat the facts as being sub- ject to any application of Rule 4l(a)(2). Mr. Hous- ton was correct. (1) Query: Therefore, did the Court abuse its dis- cretion in insisting that the case be dismissed only upon conditions as subsequently demanded ‘by defendants ? (2) Query: Were the conditions for such dismissal as were thereafter subsequently imposed, in the form of - the $4,967.25 cash payment. unreasonable? (As it turned out, these impoverished petitioners were totally uvable to comply with said Order.) [Try p. 95.] (3) Query: Had the point of “no return’ yet ‘been reached on Aug. 30. 1962 from which. petitioners ‘through Mr. Houston could then no longer withdraw their offer of voluntary dismissal? : (4) Ouery: Was the posture of the case. at this point, such that on August 30, 1962 the petitioners. acting by Mr..Houston no longer had any control over their attempted dismissal, so that having once offered to dismiss it. they could not withdraw their offer? |; ARGUMENT AND BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI. _A. Abuse of Discretion Appears. (1) The matter of discretion involved in ranting dismissals under Rule.41/a) is ably discussed in 54 Columbia. L. Rey, 616 at 618 where terms and condi- tions imposed by bther courts under like circumstances is commented upon with cases collected: for example: In Wilson wv. Jolly, 7 ¥. R. D. 649 (N.D. Tex. 1948) (court costs and witness fees were im- posed) : aan In Gold ~. George T. Moore Sons, Inc.,t3 F. R. D. 201 (S.D. N. Y. 1943). (defendant re- “quested $330 lawyer's tee. but $230 held rea- sonable) : In Taylor 7. Smith & Co., 2 F. R. D. 424 (S.D. .Fla. 1942) (333.80 court costs and $223 at- _’ torney’s tee held reasonable) ; ’ In Mott v..Conn. Gen. Life Tits: Co..2 F. R. D. 523 (N.D. Iowa 1942) (court costs plus bond premium plus $100 allowed): _ and in De Fillipis v. Thryster, 116 F. 2d 375 (2 Cir. 1940) (upon which the Appellate Court relied in atfirmnig the - Judgment ap- vealed from herein). . , It was held piaintifi’s action would be dismissed with prejudice if such conditions imposed are not complied with. . (2) However. it may be proper at times to alloz plaintiff to dismiss without imposina any conditions: all ot the reasons suggested in support of this view . =, : ae . (see in 54 Columbia L. Rev. supra 620 and in particular (note 32) would appear to apply cur case since it -can- not be denied that substantially all of the expenses which defendants. claim [Tr. pp. 70-72]. would have been properiy allowable to petitioners’ heures second suit 2s the Hawaiian State Court. Therrien tv. New Eng. Tel. & Tel., 102° F. Supp. 350.°351 (D. N.H. 1951). _ Furthermore it appears Mr. Houston should have been permitted to withdraw his offer to dismiss when it appeared it could not be done without the imposition of conditions. . This precise problem -is considered in 34 Columbia L. Rev. at pages 624-625. Petitioners contend that the “cutoff point” had net vet on — 30. 1962 been ‘reached tor the tollowing reasons (a) The case was not_at issu (b) No counter claim or request for affirmative re- lier had yet been pleaded: ~(c) It cannot be contended that the expenses incurred in preparing the detense of this case wonld not have been substantially all equaliy applicable to the defense of the proposed action in the State court. It is suggested that the Court's award ot $4967.25 was under all of the facts of this case a preposterous award. and that Mr. Heuston’s picturesque comments on the subject made at the. hearing of his motion te Recuse. although intemperate. were still excusable. since they de serve to point up the abuse of discretion in aliowing such an Order tw stand. when under the cir- cumstances shown. Mr. Heuston had every reasen to have supposed he was acting under Rule 41i aye] ) eniy. * B. Dismissa! With Prejudice Is a Drastic Sanction. ° ° ~ .* ° © ° ce owe 2 h- teem sacs « es eT ° . - ‘ sere oo! “3 — 2 we « = ee = ‘ Sees LS! deere tsees FAs st CNUs Cis - e - : : - - -- + ° - ee a 7 m2 eg oor - - f A> e far: ot eee Se ) ae ee Tess Ae - & « ant 2 sd EF. . f > . . e e . ° - ° _- _ ~~ - “~- = + -~-- —_ as - e ++. - 7.7 Payer. ~ or 4 <7 ~~ 4% 2 ere: See eos’ & € SF Ee - Ww Fs “Fete web wh Peite ? | ea 9 2 “s htiw m-ij be + 48 E~ = i 4 -_+- A > ° . - ~ ee e =-<2 out tata wn eeteageete 4c tems ft cet ere er an BS . es ee ee a ee - wore weed CS + os a eens Ceri ef- a tea mae rg oo pewenes Las 3. puso &-* ae | a ob bese ses, oo és Gsaws So - ‘ (pees eae aw Se tee Meee eee ~-e = es “= eet te cee ‘ . ~ we ee eee wee. MIWEVEer. - “~~ Me em ee- - re oso ~e->s - -- - us - oo ed -- * sete 5 et oe me --- ews - —<-+e+ me © « - e --+s-- - -- - _- ous we - sveee -- ° . - . - Pad oY ; The dismissal should have been allowed without preju- dice. and without conditions imposed ‘under Rule 41/a)- (2), oF, in the alternative Mr. Houston should have been permitted to withdraw his of fer to dismiss without any, penalty as he offered to do. or if a penalty was assessed it should have been charged to him. and not to his chents. these pe ets tioners. D. Tas These Petitioners Chargeatie With the Mis- ‘conduct of Their. Attorneys. Subsequently ic appears Mr. Houston became dis- abled. | Where an attorney becomes disabled his contract ot employment by his clients is terminated. 3 | Pearces Metro Petrele um, 13& F. Supp. 791. 792. An attorney is vot clothed generally with authority to -make serious statements of a factual nature in course of any pre-trial hearing except for purpose of simplity- ing matters. | "Laird Air Carrier Engine, .263 F. 2d 948. . The relation of attorney and client is one of highest. trust and confidence. and demands the utmost of good faith on the part of the. attorney and courts will closely scrutinize any transaction in which an attorney has as- sumed a position antagonistic to Ais client. ‘Mr.. Crum- packers withdrawal deserves further scrutiny under the circumstances ’ Goodwin v. Clement, 277 Fed. 386. 31 App. D.C 184. | Courts maythold an attorney to strict compliance with an improvident contract. "Smith v. Jackso. 37 F. 24 237 cert. den. 30 sec: 351, 28t U. $.°745; “4 L. ed. 1138. —15— Apparently Mr. Crumpacker considered his contin- Yent fee contract unpretitable and attempted by any means to escape from ‘t. Are these petitioner appetiants therefore actually. chargeable with the-effect of the totally sinauthorized Dismissal 4 4ot their entire litigation? Unless in some manner excus sl or avoided. said dis- missal has now effectively extinguished their entire. - claims. P>titioners could nat have suspected. or in any manner foreseen that such Dismivsal would have been filed by their attorney. ‘ 'E. The Law Contains Built in Safe Guards. As appellants contended in their Petition for Rehear- ing. it would appear that the law contains built-in safe- guards against ‘such: céutingencies, and that 10 actual foresight. was required of then: by law in this regard. It is fundamental that xo attorney can take. steps de- Structive ef tis ct tents” entire cause of action without their Ruowiedae, permission or consent. The authority of an attorney to control fitigatwon entrusted to him is subject to the salutary -and wel: recognized [imitation that he caniot utthout the consent of hts clients take. sieps destructive cf his clteuts’ esitire cause of action. and steps so taken are vot bindina oi the clients. 3 Am. Jur. 300: : Price v. MeConuss:, 22 Cal. App. 24 92. 97; 70 P. 24 978: ee j "yarecisco a Bere: unty or Sa: F : 138 U. 8S. 463, 11 Ss. Cr. 364. 34°L. Ed. 1096. a4 a oc : > : nis va) the bee! wite- Ps “aw. ttKjerree i” Ps | ° For the IMOGE AUT TITY « aml gttormey ordinarily does net extend t the doing « 7 acts which will result a in the surrender or giving up of any substantial right of the clients. | 7C. J. S., Attorney and Client, p. 897: Clover v. Bradley, 233 Fed. 721, Ann. Cas. > 1917A 921. | and certainly no express authority to dismiss wa’s given. Nor does such implied authority extend to the ini- position of new liability upon ‘them without special per- _ mission or conseént. 7 C. J. S., Attorney and Client, p. 897; Robert k. Sizer & » €o..v. Chiarello Bros., 32 F. 2d 333. . ae’ and certainly no éxpress authority «to incur the St.- 967.25 penalty condition was ever intended. , From the record, the withdrawal or resignation of E. D. Crumpacker as plaintiffs’ attorney under the unusual circumstances. appears to have handicapped the effective conduct of petitioners’ litigation. Conclusion and Prayer. Wherefore, no other recourse remaining, a Writ of Certiorari to the Court.ot Appeals. should issue, to the end that the Judgment and Order in the instant cause may be reviewed, | / , Harry B. Dowsina, . ‘Attorney for Petitioners, Of Counsel: Lacren M.’ HANDLEY. o— APPENDIX A. Opinion oi the United States Court of Appeals for the Ninth Circuit, United. States Court of Appeals, tor ghe Ninth Cir- cuit. ; Margaret Davis, etal., Appellants. vs. Pauline D. Mc- Laughlin, Administratrix of the Estate oi Ingram M. Stainback, deceased, Appellee. No. 18,633. Jan. 22, 1964. | Appeal trom the United States District Court for the District of Hawaii. Betore: Barnes. Hamlin and Merrill. Cirenit Judges Barnes, Circuit Judge: This is an appeal wherein no statement relating to the facts of the case is made by appellants. We there- fore adopt appellee's statemient of facts, in part, as fol- lows: “Appellee’s intestate, Ingram M. Stainback, was for many years Governor. of the Territory of [lawaii, This action was filed by appellants on December 8. LOol. on gist of appellants’ asserted clairi, as dis- closed iS. the complaint and Exhibit A thereto (a copy of a Statement of Claim of Creditors made by appellants to, and rejected by, GUvernor Stainback’s administrator ) is: Aiter the death of Governor stainback’s wife. Cecile White Stainback. on October 11; 1°49, Governor Stain- back destroved her will. in which she hau bequeathed all her property to her parents. anc concealed property belonging to her from: the administrator of her estate. On February 1°, 1932 the net estate of Mrs. Stainback ~ r ae, was distributed one-half to appellants [note] and one- half to Governor Stainback. Governor Stainback died in- testate on April 12, 1961. - On January 16, 1962 a notice to take the deposition _ of appellant Georgia McPheeters was filed. Atter some difficulty, appellant McPheeters’ deposition was’ taken in Honolulu on sige aad January 27 and ‘Sunday, January 28, 1962. j On January 31; 1962 appellants flied and served writ- ten interrogatories tu appellee. Appellee ‘filed answers to these interrogatories on February 26, 1962, and an amended answer on March 9, 1962. On June 15, 1962, appellee filed a motion to dismiss or for a more detinite statement. On July 2, 1962. the deposition of appellant Georgia McPheeters was tiled in the district court. On July 6, 1962. before any hearing on appellee's motion to dismiss or for a more definite statement, ap- pellants’ attorney, E. D. Crumpacker. Esq., filed a mo- tion for leave to withdraw as counsel for appellants. On July 12. 1962 there was a lengthy hearing on Mr. Crumpacker’s ‘motion in which appellant McPheeters personally participated. Appellee opposed Mr. Crum- packer’s request tor ‘leave to withdraw as counsel for appellants. After hearing both Mrs. McPheeters and ‘Mr. Crumpacker. the court conditionally granted Mr. Crumpacker’s motion for leave to withdraw but ordered him to netity each appellant other than appellant Me- Pheeters that he had moved to withdraw as their at- torney, that there would be a further nearing on his motion to withdraw. and that unless appellants appeared and showed cause why he should not be permitted to ae. em withdraw, he would be so permitted. The court further ordered Mr. Crumpacker to send a copy of appellee's motion to dismiss to each appellant with notice that the motion would be heard. at 9:00 A.M. on September 4, 1962. On July 20, 1962 the court granted Mr. Crum- packer leave to withdraw, and a written order .to that - effect was-filed on July 26, 1962. if On August 30. 1962 appellants’ present counsel, Bra- han Houston. Esq.. filed his appearance and a notice of dismissal— purportedly without prejudice under Rule 41(a)(1) of the Federal Rules of Civil Procedure. The same day-——August 30,-1962—that appellants purported to dismiss this action in the district court they commenced in the Circuit Court ot the First Cir- ruit of the State of Hawaii a new suit based on the same claim asserted in this action.” The deferdants in the state court action were Judge McLaughlin as ad- ministrator of the estate of Governor Stairback and the Cooke Trust Company. I.td.. which had been adminis- trator of Mrs. Stainback’s estate. [note | On September 7, 1962 appellee moved to. strike the notice of dismissal tiled by appellants or in the alterna- tive that the court permit dismissal by appellants only on just and reasonable ternis and conditions. On Sep- tember 17. 1962 the district court ‘ruled that the notice of dismissal stand. conditioned upen the payment to defendant of his costs. etc.. and if an agreément on the amount cannot be reached. then hearing on the matter be set for. November 1. 1962 at 9a.m." A written order to this effect which also provided that counse! for -the respective parties should conier in an attempt to agree ‘on the amount appellants s “am pay appellee was tiled on October 1, 1962. a ce , . _ Appellee filed memoranda of costs and attorneys’ fees ‘and affidavits with respect thereto on November 1 and November &. 1962. tek On November 8. 1962, at a continued hearing on the amount Of costs and attorneys’ fees to be assessed, the district judge .nade it clear that in his opinion the only basis fora dismissal was under Rule 4lia)(2) ct the Federal Rules of Civil Procedure. and that unless other- wise specified in the order of dismissal. such a dismis- sal would be zttout prejudice. The court set the amount of $4,967.25 as the amount to be paid by appeliants to appellee as the condition of a voluntary dismissal with- . ‘out prejudice. On November 29, 1962.a written sup- plemental order on appellee’s motion to strike appel- lants’ notice of dismissal was filed: this order was amended in open court on December 19, 1962. This supplemental order as so amended provides: ‘IT IS HEREBY ORDERED that the Plain- titis jointly and severally pay to the Defendant or his legal successor within thirty (30) days froiu the entry hereo?. the sum of FOUR THOUSAND NINE HUNDRED.-SIXTY SEVEN AND 25/- 100 DOLLARS ($4.967.25) for the costs and attorneys’ tee incurred by Defendant in this mat-° ter: ind in the event the Plaintiffs shall tai! two meet this condition, this cause will stand dismissed With prejudice ter tailure to comply with terms ¢ and conditions of court.’ On November 19. 1962. eleven days after the court had ruled that appellants’ dismissal of this action with- out prejudice was to stand on condition that they pay appellee's, costs and expenses in the amount or $+4.- 967.23. apnellants fled: ¢ 1) a motion to amend the complaint: (2) a document entitled ‘Plaintitrs’ Election asain to Continue On In This Court and- Cause’; and (3) motion for Judge Pence to recuse kimself “because of bias and prejudice on the part of the Honorable Mar- tin Pence toward plaintiffs. and their cause’ together . B with an affidavit of appellants’ attorney in support thereof. © ° The next day. November 20. 1962! appellants filed a document entitled ‘Plaintiffs “Joinder in ‘Defendant's Motion to Strike Plaintitfs’ Dismissal’. _ An affidavit of prejudice by appellant Georgia Mc- Pheeters was filed on November 29, 1962. The same day the motion tor Judge Pence to recuse himself was denied. ; : On December 5. 1962 a written order denying ap- pellant’s motion for Judge Pence to recuse himself was signed and riled. - Appellants then filed motions to set aside the dis- trict court's orders. On December 19. 1962 these mo- tions were denied and. after an éxtensive colloquy be- tween the court and counsel for appellants. the order dated November 29. 1962..was amended. On January 9, 1963 titis action was ordered dis- missed with prejudice: for failure of appellants to ful- fill the terms and conditions fixed by the court within the prescribed time.” Appellants urge two errors: (1) That the district indge erred in refusing ti re- cuse himself on motion of appellants: (2) that the district court erred in. dismissing the action with prejudice upon the failure of appellants to meet the terms and conditions imposed by the court p prevent such a dismissal. ” a Counsel for appellants cite ome case in their briet— Harris Truck Lincs, Inc. v. Cherry Meat Packers, Inc.. 1962. 371 U.s. 213. which has to a with what con- stitutes “excusable neglect” based on a failure of party to-learn ef an entry ¢f judgment and hence tail to file a notice of appeal within the thirty day period required by the statute. This court denied appellee's motion to dismiss this appeal on July 8. 1963. Hence’ fo hj am ed mm 206 9? n>“ the case cited supfeeris Our previc is action. but has r$oe) applicability to the merits of this appea! The balance of appellants’ brief consists of argument and attacks on the trial judge. It nowhere meets the issties, fc... the alleged errors recited above. The motidn to recuse was made after the trial jud had heard the matter and indicated how he tea 10 rule. ‘His refusal-td recuse was not‘error. L. 4. Trust Deed & alorra2, w Exchan tS ie Sec. & Excit. Commissicn. 9 Cir. 1960, 282 F. 22 162. cert. denied 366 U.S. 919: Barnes 7. United agit G Cir. 1934, tes. st. F.2d 282 Price v. Joi:nsten. . 1942. 125 F.2¢ 80%. cert. denied 316 Us. 677: a . Loews. Ine., S.D.Cal. 1948. 7 F.Supp. 872. reversed on other epcunds, 4 Cir, 1950, 185° F 24 641. cert. deniet. ‘A951. RF. Civ. P. 4lrajyi2 Federas Sazinus ~ Loa: 188: . Reeves. & Cir. 1943. 148 F.24°731. Nor was the isimissal with oresucdice when the conditions were no: met. De Filieis 2. Chrvsicr Sales Corr.. 2 Cir. 1940! 11> F.26 378, es . eae H. Schmid. Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1846%3A2. Public record. Not legal advice.