# Opposition Brief — Siebring v. Hansen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0942%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 943 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0942%3A2. Public record. Not legal advice.