Opposition Brief — Siebring v. Hansen

Office-Supreme Court, US.

rit fe

| OCT 25 1965

| Jurtii F. DAVIS, CLERK

In the

Supreme Court of the Gnited States

OCTOBER TERM, 1965

No. 609

OWEN SIEBRING

Petitioner

VS.

CHARLES W. HANSEN AND AFSCO, INc.

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

MERCHANT, MERCHANT & GOULD

PHILLIP H. SMITH

2330 Rand Tower

Minneapolis, Minnesota 55402

Attorneys for Respondents

Hayward-Court Brief Prtg. Co., Mpls., Minn. 55415

INDEX

PAGE

Z, Statement of the CASS 2... cc cccccteswccccess 1

II. No Federal question presented .............. 4

Se PAE no hance device de sebasens aes 4

A. Owen Siebring as intervenor accepted con-

sent decree Steet e eee e ee eeeeeeeeeee 5

B. Owen Siebring bound by estoppel of previ-

RR PP er eC ry eee ree 10

C. No denial of due process .............. 15

BU. TI oo sci osc ic ce cnsdenesaen cesar 17

AUTHORITIES CITED

Cases:

Chicago, R.I. and P. Ry. Co. v. Schendel, 270 U. S.

i kes er errr ry Pee 14

Commercial Electrical Supply Co. v. Curtis, 288 F.

657 (8th Cir. 1923), cert. denied 263 U.S. 709 .. 8

Dean Rubber v. Killian, 106 F. 2d 316, 42 USPQ 493

ee GE wind knoe kien herrea sae ees 6

Erie v. Tompkins, 304 U. S. 64 (1938) ......... 12

Ex parte Jordan, 94 U. S. 248, 252 (1876) ......... 7

Featherstone v. Cycle, 53 F. 110 ..............2.- 6

Formulabs, Inc. v. Hartley Pen Co. et al., 275 F. 2d

; eRe ere er reer er 9

Galbreath v. Metropolitan Trust Co., 134 F. 2d 569-

570 (10th Cir. 1943), and cases cited therein ..... 8

. Guaranty Trust Co. v. York, 326 U. S. 99 (1945) .. 12

Hanson v. Birmingham, 92 F. Supp. 33, 42 (N. D.

Tee. sono 6a5 45000 6as ouek sees 12, 14

Hartley Pen Co. v. Lindy Pen Co., 16 F.R.D. 141,

153, 102 USPQ 151 (S. D. Cal. 1954) ......... 8

In re Veach, 4 F. 2d 334 (8th Cir. 1925) ........ 8

Rector v. U. S., 20 F. 2d 845 (8th Cir. 1927) ..... 8

Souffront v. Compagnie des Sucreries, 217 U. S. 475,

SEE SED. o's ce ncd cnc howe Rs Pee eaee anes 14

Sperry v. Assoc. of American Railroads, 132 F. 2d

b be Ri. RR ree errr erire 12

State.of Kansas v. Occidental Life Ins. Co. et al., 95

F. 2d 935, 936 (10th Cir. 1938) ............ 8

Trent v. Risdon Iron and Locomotive Works, 102 F.

635, modifying 92 F. 375, 390 ............. 6, 12

United States v. California Co-op Canneries (1929)

279 U. S. 553, 556, 49 S. Ct. 423, 424, 73 L. Ed.

rrr rere ee err 7

Texts:

1B Moore, Federal Practice, §0.411(1) .......... a

1B Moore, Federal Practice, §0.411(6) ........... 15

4 Moore, Federal Practice, 24.16, pp. 120-121 ..... 8

D Wee GR FUOOUND, GOSS oo onc c sc ccc cwnccess 6, 12

7 Cyclopedia of Federal Procedure, §§24.40-.41 (3d

ret err ey ree ee ee 8

In the

Supreme Court of the Anited States

OCTOBER TERM, 1965

No. 609

OWEN SIEBRING a

Petitioner

vs. 7

CHARLES W. HANSEN AND AFSCO, INc.

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

IL,

STATEMENT OF THE CASE

The Hansen patent No. 2,867,314 for an automatic cat-

tle feeder or “bunk feeder” issued on January 6, 1959,

and the original infringement ‘suit was instituted on Feb-

ruary 12, 1959, against Claude Siebring, d/b/a Siebring

Manufacturing Company. The original suit was settled and.

a consent decree and injunction were entered in October

of 1959. Then, the case was reopened in February of 1962

when the motion for contempt was filed. The contempt ci-

tation resulted in a holding of contempt and infringement,

which was affirmed on appeal, and from which this peti-

tion is taken.

2

Siebring Manufacturing Company was a partnership be-

tween Claude Siebring and his son Owen Siebring, and all

of the bunk feeders which they produced and sold over the

years were produced and sold under the name and style

of Siebring Manufacturing Company (RI, p. 134). The son

Owen Siebring (petitioner here) was not named a party in

the original suit. The father Claude Siebring was at the

time of the suit the principal managing agent of the part-

nership Siebring Manufacturing Company (RI, p. 159).

However, the son Owen Siebring actively participated in

the suit and was fully familiar with the proceedings lead-

ing up to the consent decree and injunction (RI, pp. 134-

5).

Owen Siebring, although not a party, participated in dis-

cussions leading to the settlement, and appeared and testi-

fied at a pre-trial deposition. Further, Owen Siebring

signed as a witness the settlement agreement forming the

foundation for the consent decree and was~fully aware of

the terms of the agreement (RI, pp. 134-5). Such settle-

ment agreement provided in part that the plaintiff Hansen

was the original and sole inventor of the patent and that

the patent was good and valid in law. The settlement

agreement further provided that the defendant Claude Sie-

bring, d/b/a Siebring Manufacturing Company, had

manufactured and sold devices constituting an infringe-

ment of the patent (RI, pp. 11-13). Pursuant to the settle-

ment agreement, the consent decree was filed and a writ

of permanent injunction issued strictly enjoining and re-

straining Claude Siebring, his heirs, employees, associates,

servants, privies and those in active consort and participa-

tion with him from further infringement (RI, pp. 14-15).

After the settlement of the original action and the entry

3

of the consent decree and writ of permanent injunction,

Siebring Manufacturing Company continued to manufac-

ture and sell bunk feeders which were colorable imitations

of and substantially identical to the type of feeders which

it was manufacturing and selling at the time of the settle-

ment (346 F. 2d 474, 479, and appendix to petition, pp.

A9-A10). The plaintiff's motion for contempt was filed in

the District Court on February 1, 1962. Owen Siebring’s

voluntary intervention as a party defendant was permitted

by the court on March 6, 1963, the court stating that Owen

Siebring was permitted to intervene as a defendant in the

contempt action because he could be jointly liable for

plaintiff's damages if contempt was found (RI, p. 48). The

‘court later ruled Owen Siebring’s intervention was not per-

mitted for the purpose of relitigating the issue of validity of

the patent as already determined by the consent decree

(RI, pp. 84-5). The trial of the contempt matter began on

March 14, 1963.

U. S. District Judge _—_—s in his opinion reported at

231 F. Supp. 634, held the feeders manufactured and sold

by Siebring Manufacturing Company subsequent to the in-

Junction to be colorable imitations and the equivalent of

the enjoined feeder. Because of the defendants’ insistance,

the court also held the defendants’ feeders to be infringe-

ments of the Hansen patent in the usual sense, as well as

a continuation of the infringement specified in the consent

decree because of the equivalency of the subsequent feed-

er to the enjoined feeder of the decree (231 F. Supp. 634,

647).

The question of validity of the Hansen patent was not

an issue in the contempt proceeding because of the previ-

ous holding of validity in the consent decree, and the de-

4

fendant Claude Siebring and intervenor Owen Siebring in

their post-trial reply brief in the U. S. District Court filed

August 30, 1963, admitted on page 18 thereof that the

question of validity was not an issue in the contempt hear-

ing (RI, p. 84, 2nd par. of order). Further, the trial court

in its decision at 231 F. Supp. 634, 643 stated that the

question of validity of the Hansen patent was not an issue

in the contempt hearing.

The defendants Claude Siebring and Owen Siebring ap-

pealed to the U. S. Court of Appeals for the 8th Circuit,

which in its opinion reported at 346 F. 2d 474, affirmed

the decision of the United States District Court in all re-

spects. A motion for rehearing by the U. S.-Court of Ap-

peals was overruled on June 28, 1965, and the petition for

certiorari herein opposed requests a review of the decision

denying said petition for rehearing.

I.

NO FEDERAL QUESTION PRESENTED

As will be shown more particularly hereafter, the alleg-

edly erroneous rulings of the U. S. Court of Appeals for

the 8th Circuit and the reasons relied upon for the writ by

petitioner do not present a federal question which may be

reviewed by this Court within the jurisdiction of this Court

outlined in Rule 19-1(b).

-

Til,

ARGUMENT

Although it was acknowledged in the post-trial brief

filed on behalf of petitioner in the U. S. District Court that

the question of validity was not an issue in the contempt

proceedings (RI, p. 84), petitioner now controverts this ad-

p

mission and argues that he should have been permitted to

relitigate issues determined in the consent decree prior to

his. intervention. This is the general substance. of the peti-

tion, although the petitioner subdivides his argument for

certiorari into the following three reasons relied upon for

the writ:

1. Petitioner’s intervention did not prevent him

from relitigating issues determined by the previous

consent decree.

2. The findings of the consent decree were not

res judicata as to petiticner under the Iowa common

law.

3. Petitioner was denied due process of law be-

cause he was not permitted to relitigate issues deter-

mined by the consent decree.

Considering these three reasons in order, it will now be

shown that none thereof points to any error of the court

below. Rather, the decision of the Court of Appeals in re-

fusing to review en banc its earlier decision on appeal as

well as the actual decision on appeal, are clearly supported

by the applicable authorities.

A. Owen Siebring as intervenor accepted consent de-

cree

The trial court permitted Owen Siebring to intervene

“* * * because he may be liable if it is determined that

Claude Siebring, the partner of Owen Siebring, has been

infringing on the patent of the plaintiff. A partnership is

liable in an action for infringement committed in the regu-

lar course of the partnership business by one or more of

the partners. A manager of the partnership is a joint in-

6

fringer. Featherstone v. Cycle, 53 F. 110; Trent v. Risdon

Iron and Locomotive Works, 102 F. 635; Dean Rubber v.

Killian, 106 F. 2d 316, 42 USPQ 493 (8th Cir. 1939);

Walker on Patents, § 436, Vol. III” (RI, p. 48).

Before the actual trial of the contempt matter, the U.

S. District Court made it abundantly clear to the defend-

ants there that the court considered the issue of validity

to be res judicata, and would not permit the intervenor

Owen Siebring to relitigate issues already determined by

the previous consent decree (RI, pp. 93-96, 113-15, 123-24,

126). Pursuant to further requests by the defendants be-

low, the trial court again outlined the estoppel effect of

the previous decree in an order filed August 27, 1964 (RI,

pp. 84-85). The trial court emphasized that Owen Siebring

was allowed to intervene because he could be jointly li-

able for the plaintiff's damages if contempt was found, but

that intervention for this purpose did not require or permit

the intervenor to question the validity of the Hansen pat-

ent (RI, p. 85). As noted, the post-trial reply brief filed on

behalf of the defendants Claude and Owen Siebring (RI,

p. 84) even acknowledged that the question of validity was

not an issue in the contempt proceeding; however, after

the trial court’s judgment was adverse to the defendant

Claude Siebring and the intervenor Owen Siebring, Owen

Siebring then changed his mind and decided that he should

have been permitted to contest validity. Thus, the defend-

ants appealed to the U. S. Court of Appeals upon the

grounds that the defendant Owen Siebring should have

been permitted to intervene for the purpose of relitigating

the issue of validity already determined by the consent de-

cree (essentially the same grounds asserted in support of

the petition herein opposed).

7

Accordingly, we have a situation where the defendant

Owen Siebring admitted in his post-trial brief filed prior

to the trial court's decision that the question of validity

was not an issue in the contempt. proceeding (RI, p. 84),

but having lost at the trial level, then deciding to assert on

appeal the opposite argument that he should have been

permitted to intervene for the purpose of relitigating the

issue of validity. It was stated on page 68 of the appel-

lants’ brief before the U.S. Court of Appeals that defend-

ant Owen Siebring did not resist at the contempt trial a

course of action precluding reassertion of the defense of

invalidity because a finding of noninfringement would

have resolved all of the defenses which defendants had

raised. The U. S. Court of Appeals for the 8th Circuit held

that as a consequence of the intervention, Owen Siebring

was required to recognize and accept the existence of the

consent decree (346 F. 2d 474, 478, and appendix to pe-

tition, pp. A6-A7). This holding by the Court of Appeals

is entirely in accord with previous decisions of the U. S.

Supreme Court, as well as prior decisions of the 8th Cir-

cuit Court of Appeals. This rule which prevents an inter-

venor from attacking or impeaching previous court orders

and decrees made prior to his intervention is often referred

to as the subordination rule, since the intervention is in

subordination to the previous proceedings to the extent that

the intervenor may not go behind orders or decrees pre-

viously made by the court.

Mr. Justice Brandeis has stated the rule to be “that in-

tervention will not be allowed for the purpose of impeach-

ing a decree already made.” United States v. California

Co-op Canneries, 279 U. S. 553, 556, 49 S. Ct. 423, 424,

73 L. Ed. 838, 841 (1929). Accord, Ex parte Jordan, 94

U. S. 248, 252 (1876).

Accordingly, the intervenor Owen Siebring could not at-

tack the prior decree and relitigate issues determined there-

by to any greater extent than his father and the original

party Claude Siebring. This is so notwithstanding the fact

that the intervenor Owen Siebring signed the original set-

tlement agreement, which incorporated the consent de-

cree, as a witness for his father’s signature as a party.

The effect of a completed intervention is to make the in-

tervenor a party in the action; and like an original party,

the intervenor is charged with notice of the prior proceed-

ings and is bound by all orders and decrees therein to the

same extent as an original party. Rector v. U. S., 20 F. 2d

845 (8th Cir. 1927); In re Veach, 4 F. 2d 334 (8th Cir.

1925); Commercial Electrical Supply Co. v. Curtis, 288 F.

657 (8th Cir. 1923), cert. den. 263 U. S. 709; Galbreath

v. Metropolitan Trust Co., 134 F. 2d 569-570 (10th Cir.

1943), and cases cited therein; State of Kansas v. Occi-

dental Life Ins. Co., et al., 95 F. 2d 935, 936 (10th Cir.

1938); Hartley Pen Co. v. Lindy Pen Co., 16 F.R.D.-141,

153, 102 USPQ 151 (S. D. Cal. 1954); 4 Moore, Federal

Practice, §24.16, pp. 120-121; 7 Cyclopedia of Federal

Procedure, §§24.40-.41 (3d Ed. 1951).

~ In Commercial Electrical Supply Co. v. Curtis, supra,

in affirming an order dismissing a petition for interven-

tion, the Court stated at page 659:

“It is the general rule that one who voluntarily in-

tervenes in a suit in equity thereby becomes a party

to this suit, is in the same situation, bound by the

same orders and decrees, and subject to the same

estoppel as though he had been a party from the com-

mencement thereof” (citing cases).

In his petition, Owen Siebring complains of the lower

9

court’s refusal to permit him to relitigate issues already de-

termined by the consent decree prior to his intervention.

Petitioner merely makes sweeping generalizations that the

Circuit Court decided an important question of federal

law which has not been settled by this Court, and further

that the Circuit Court has departed from the accepted and

usual course of judicial proceedings. However, the petition-

er cannot cite any legal authorities which even remotely

support his contentions. The case of Formulabs, Inc. v.

Hartley Pen Co. et al., 275 F. 2d 52 (9th Cir. 1960), re-

ferred to on page 8 of the petition, merely relates to the

right of a licensor to intervene as party plaintiff, and has

obviously nothing to do with the right of an intervenor to

intervene for the purpose of contesting or relitigating is-

sues already determined by a previous decree. Further, the

authorities relied upon at the top of page 9 of the petition

in support of the proposition that an intervenor may file

a counterclaim, clearly lend no support whatsoever to the

petitioner’s argument that ‘he should have been permitted

to intervene for the purpose of contesting the prior con-

sent decree. All of the authorities cited at the top of page

9 of the petition merely related to the right of an interve-

nor in a previously unlitigated case to file a counterclaim,

and none thereof permitted an intervenor to assert a coun-

terclaim for the avowed purpose of relitigating issues al-

ready determined in a prior order or decree.

In summary, the ruling by the trial court (order filed

August 27, 1964, RI, pp. 84-85) that Owen Siebring’s in-

tervention was not for the purpose of permitting him to

contest the validity of the Hansen patent already deter-

mined by the previous consent decree, was clearly in ac-

cordance with the applicable decisions of the U. S. Supreme

10

Court, as well as the various U. S: Circuit. Courts of Ap-

peal. Therefore, by his intervention, the petitioner Owen

Siebring had to accept the provisions of the previous

consent decree as a condition to his intervention, and he

therefore entered this suit as an intervenor burdened with

the finality of the issues already litigated by the prior de-

B. Owen Siebring bound by estoppel of previous de-

cree

The Court of Appeals below based its decision regard-

ing the binding effect of the previous decree upon Owen

Siebring principally upon his intervention binding him to

accept all previous orders. Since the decision of the Court

of Appeals on such ‘issue of intervention has been shown

to be in accordance with the applicable authorities, th.

second and third reasons presented in support of the peti-

tion are of no consequence. Owen Siebring’s intervention

binds him to the prior decree and precludes the other mat-

ters asserted in the petition.

However, forgetting such preclusion and replying to the

petitioner’s second reason for the writ, we come to the pe-

titioner’s argument that he was not bound by the con-

sent decree because he was not a party to the agreement

and was not restrained by the court’s injunction. This ar-

gument was rejected by the Court of Appeals as lacking in

substance, the Court stating in its decision reported at 346

F, 2d 474, 477-8, that:

“* * * The facts are that Owen was a partner with

his father in the Siebring business—he was active in

its management, he was fully aware of the terms of

the agreement forming the foundation for the consent

decree, indeed he signed the agreement as a wit-

11

ness to his father’s signature, and at all times under-

stood the import of the decree.”

In connection with this second argument of petitioner,

it is important to note that Owen Siebring was active in the

suit prior to the settlement in 1959 and participated in

settlement discussions with counsel concerning the case (R

I, pp. 134-5). Therefore, at the time of the previous consent

decree recognizing validity and infringement on the part

of Siebring Manufacturing Company, the petitioner Owen

Siebring was not only a partner with his father in Siebring

Manufacturing Company, but he had actively participated

in the litigation. Further, Owen Siebring recognized that

he was himself enjoined by the consent decree and injunc-

tion from manufacturing the infringing feeders (RI, p.

135). Therefore, because of Owen Siebring’s activity in the

management of Siebring Manufacturing Company and his

participation therein as a partner, his awareness of the

terms of the settlement agreement and the consent decree,

his signature as a witness to the settlement agreement, his

understanding of the terms and importance of the consent ~

decree, and his participation with counsel in discussions

prior to the settlement, it is submitted that the prior con-

sent decree entered against Claude Siebring doing business

as Siebring Manufacturing Company, was res judicata and

an estoppel against Owen Siebring.

The substance of the petitioners’ second reason relied

upon for the writ is that the Court of Appeals application

of the consent decree as res judicata against him was con-

trary to Iowa common law (Pet., p. 9). Petitioner clearly

fails to recognize that this was a patent case with exclu-

sive jurisdiction in the federal court under 28 U.S.C. 1338

(a). The petitioner’s reliance upon state law is improper in

12

this case since it is clear that the doctrine of Erie v. Tomp-

kins, 304 U. S. 64 (1938), has no application to non-diver-

sity cases based upon jurisdictional grounds other than di-

versity. Guaranty Trust Co. v. York, 326 U. S. 99 (1945).

. According to the federal common law, every partner has

a fiduciary relationship with every other partner, and each

partner is made jointly, and generally, severally, liable for

the tort liabilities incurred by the other partners. Hanson v.

Birmingham, 92 F. Supp. 33, 42, 43 (N. D. Iowa,

1950). The partnership is also liable and a manager of

the partnership is a joint infringer. Trent v. Risdon Iron

Works, 102 F. 635, 642 (9th Cir. 1900), modifying 92 F.

375, 390; 3 Walker on Patents, §436.

Further, Rule 17(b)(1) of the F.R.C.P. authorizes an ac-

tion against a partnership, Sperry v. Assoc. of American

Railroads, 132 F. 2d 408 (2nd Cir. 1942), and the origi-

nal action in this case was commenced against Claude Sie-

bring, d/b/a Siebring Manufacturing Company, so as to

include the partnership for which Claude Siebring was the

principal managing agent (RI, p. 159).

It is well settled that a prior judgment is conclusive and

res judicata against parties and their privies, 1B Moore,

Federal Practice, §0.411(1), and petitioner acknowledges

that he would be bound by the consent decree if he was in

privity with his father Claude Siebring. However, petition-

er goes on to argue that he was not in privity with his fath-

er Claude Siebring if the determination of privity is based

upon the successive relationship type of privity.

Petitioner applies a very narrow concept of privity and

fails to recognize that there are three different relationships

which will support a determination of privity so as to bind

a non-party to a previous judgment. The presence of one

13

or more of the following three relationships is sufficient

for a holding of privity in order to bind a non-party to a

previous judgment: (1) concurrent relationship to the same

right or property; (2) successive relationship ‘o the same

right or property; or (3) representation of the interests of

the same person. 1B Moore, Federal Practice, §0.411(1),

p. 1255. It is submitted that the relationship between

Claude and Owen Siebring is such as to require a finding

of privity under one or more of the above-noted three re-

lationships.

With regard to a mutual or concurrent reiationship to

the same right or property, it is noted that petitioner Owen

Siebring was a partner with his father in the business of

Siebring Manufacturing Company, and he participated at

least partly in the management of the company (RI, pp.

158-160). Further, petitioner Owen Siebring participated in

the discussions relating to the settlement agreement and

recognized that he was precluded thereby from manufac-

turing infringing bunk feeders (RI, pp. 134-5). Therefore,

it is submitted that the relationship between the partners

Claude and Owen Siebring was certainly a mutual or con-

current relationship or interest in the Siebring Manufactur-

ing Company. Further, a mutual or concurrent action ex-

isted in the conduct of infringement as recited in the settle-

ment agreement and decree.

As noted above, privity can also exist because of repre-

sentation of the same interests, and using this criterion of

a relationship of representing the same beneficial interests,

petitioner Owen Siebring would be in privity with the orig-

inal party Claude Siebring, d/b/a Siebring Manufacturing

Company. The substantial identity relationship (represen-

tation of the same interests) was the basis for the decision

14

of privity in Chicago, R.I. and P. Ry. Co. v. Schendel, 270

U.S. 611 (1926). Under the Schendel doctrine, a judgment

adverse to the original party will bind another if he ap-

pears in the suit to represent the interest of the same bene-

ficiary who was represented by the original party in the

suit in which the judgment was rendered. Recognizing that

every partner of a partnership has a-fiduciary. relationship

‘with every other partner, Hanson v. Birmingham, supra,

there would be a substantial identity or privity relationship

between petitioner Owen Siebring and the original party

Claude Siebring under the doctrine of the Schendel case,

supra. This is because petitioner Owen Siebring and Claude

Siebring were representing the same interests in their par-

ticipation~as defendants in the suit. The original party

Claude Siebring, in addition to representing his own inter-

est in the partnership of Siebring Manufacturing Com-

‘pany, was representing the beneficial interest of the other

partners in the partnership, the same as petitioner Owen

Siebring was representing the beneficial interests of the oth-

-er partners after his intervention.

Since a partnership agreement is in effect a contract of

mutual agency, each partner is made jointly, and generally,

severally, liable for the contractual obligations assumed

and the. tort liabilities incurred by the other partners in the

course of, and within the scope of, the partnership business.

-Hanson v. Birmingham, supra, at p. 43. |

Petitioner Owen Siebring would diso be bound by the

original consent decree because he was a participating non-

‘party. Souffront v. Compagnie des Sucreries, 217 U. S.

475, 486-487 (1910). A participating non-party is often

termed a privy, but it is the actual participation of the non-

party which provides the basis for including him within

15

the scope of a judgment’s conclusiveness. In view of pe-

titioner Owen Siebring’ participation in the original suit

prior to the consent decree, including his presence at dis-

cussions with counsel concerning settlement (RI, pp. 134-

5), there is sufficient basis for holding that the consent de-

cree was binding upon Owen Siebring as participating

non-party. See 1B Moore, Federal Practice, §0.411(6).

In summary, even if petitioner Owen Siebring’s interven-

tion did not bind him to accept the provisions of the con-

sent decree (which of course it did), he would still be bound

by and could not relitigate the provisions of the consent

decree because of his privity with his father Claude Sie-

bring as a party in the original action. The privity of Owen

Siebring may be based upon his mutual or concurrent re-

lationship to the same rights as those of his co-partner

Claude Siebring, the original party, or upon the relation-

ship of the original party Claude Siebring and the inter-

venor Owen Siebring as representing the same fiduciary in-

terests as co-partners. Further, notwithstanding the above-

noted relationships which point to a determination of priv-

ity, Owen Siebring should also be bound by the consent

decree as a non-party participant because of his substan-

tial connection with and participation in the suit prior to

. the decree.

C. No denial of due process

The third reason relied upon by the petitioner as a

ground for issuance of the writ is the assertion that the

petitioner was denied due process of law because he was

not permitted as an intervenor to relitigate issues already

determined by the consent decree. It is believed that this

third reason was thrown in somewhat as an afterthought

16

‘by the petitioner and impliedly recognizes the weaknesses

of the first two reasons for the writ asserted by the peti-

tioner. :

Petitioner at no time asserted the due process argument

as a part of the appeal to the U. S. Court of Appeals for

the 8th Circuit, or as a part of the printed petition for re-

hearing by the Court of Appeals denied on June 28, 1965,

a review of which is sought by the petition herein opposed.

It is certainly too late for the petitioner Owen Siebring

to. now assert that he has been denied due process of law.

Petitioner’s intervention was a deliberate, calculated, ad-

vised, and entirely voluntary entry in this case with its pre-

vious adjudication. He knew, or should have known, that

his ‘intervention in a suit where there was an existing con-

sent decree would bind him to accept the provisions of that

decree. Petitioner had his due process when he moved. to

intervene in a proceeding where there was an-existing de-

cree. Before Owen Siebring moved to intervene, he was ful-

ly aware of the terms,of the settlement agreement which

he witnessed and which formed the basis of ‘the consent

decree, and he understood the import of the decree and

recognized that he was enjoined from further infringement

(RI, pp..134-5). Not only is the petitioner’s assertion of a

lack of due process precluded because of his relationship to

the previous action sufficient to create an estoppel by judg-

ment, but the petitioner’s intervention was also a deliber-

ate move in subordination to the previous proceeding and

the consent decree entered therein.

Therefore, having entered this suit voluntarily and with

full knowledge of the existence and import of the previous-

ly entered decree, petitioner cannot now at this late date

complain that his own actions were a denial of due process.

17

IV.

CONCLUSION

None of the reasons asserted by petitioner point to any

irregularity or error of the Court of Appeals in its decision

which is sought to be reviewed. To the_contrary, the de-

cision of the Court of Appeals for the 8th Circuit, includ-

ing its denial of a petition for rehearing, is in complete ac-

cord with the prior applicable decisions of this Court and

other U. S. Courts of Appeal. Accordingly, the petition

should be denied.

Respectfully submitted,

MERCHANT, MERCHANT & GOULD

PHILLIP H. SMITH

2330 Rand Tower

Minneapolis, Minnesota 55402

Attorneys for Respondents