Opposition Brief — Kelly v. Greer

Cttiae Supreme Gourt, U.S.

FYTEED.. -

a acne

In THE

Supreme Court of the United States :

7 OCTOBER TERM, 1966.

err Aree

_ JANE G. KELLY, Petitioner, © :

‘ P ; e | &

' AGNES J. REEVES GREER, MELLON NATIONAL

. BANK AND TRUST COMPANY, and PITTSBURGH

i ae NATIONAL BANK, Respondents,

o

BRIEF IN OPPOSITION TO PETITION

en .

ELDER W. MARSHALL . .-»

Gitpert J. HELWIG >

‘ Reep StH SpAw & MoCiay

747 Union Trust Building

Pittsburgh, Penna; 15219

aC | Me RICHARD F. STEVENS

_ BAKER, Hosrerier & ParreRSsoN Pe RS

. Union Commerce Bldg, -

| Cleveland, Ohio.

Paine Wrens «. _- Attorneys for Respondent.

| ‘ Agnes J. Reeves Greer

EET : :

SMITH BROS. CO. INC., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219 |

¥

A

*¥. Se. }

. f INDEX ‘TO BRIEF .

: PAGE

QUESTIONS PRESENTED his. eke secegewoece |

‘STATEMENT OF THE CASE seebcases beeen eee 2

ARGUMENT sacks hn + MAN eR Ras co 3 ahaa aoe, 10

; rad a A Rees 8 wii Serovar eeesy AO.

I. None-of the Considerations Which Make

. Appropriate Review on. Writ of Certiorari |

oi Is Present in This Case 5 din wake Oak Bie a bf

II. The Application - ‘for: Certiorari ‘Ia ‘Un- —

ee aaa y EN wp a © Coa iM Eiken oe 4 eed ie

TABLE. OF CASES

Acme Process Equipment Co. v. United States,

(Ct. of Cldims- P1965), 347. “Fi2d 509, cert.’

granted 348 U.S. 917 ..........--. cece eens

All States Investors, Inc. Bankers Bond. Co.,

(6th Cir. 1965) 343 F2a 618, cert. den. 382

-- “US. 830, rehearing den. 382 U.S. ee

« Aspen Mining & Smelting: Co. v. Billings, (1893)

BO USS. BL ooo. ee eee eee eee eee |

- Bridoux v: Eastern Air Lines, tise’ (D.C. Cir. 1954)

- 214 F.2d 207, cert. den. 348 U.S. | ea a

Cummins Diesel Michigan, Inc. v. The en

- (Tth Cir. 1962) 305 F.2d 721 ..:........,..

English v. Cunningham, (D.C. Cir. 1959) 269 F.2d

3 iy. ont. dex, 361 US. eh. eae

, den. 361 YS. 950 . Ee Ea pévbig be. 6200 ba Uh vewae ee

-“Hullet, Inc. v. Universal C.LT. Credit Corp, (10th.

Cir. 1958) 259 F.2d 685 -......0. 2... .2 eee

3 Iron Works Co. v. Ingalls, et al., (D.CND.

rity $.D. bscerd 177 F. Supp. 151, aff'd. 280

We MOU oia'o 604-9. 5 fate 408 8 has CRE nn

| Kelly v. Siren, (Sth Cir. 1965) 354.F.24 209 : aueartin

‘Kelly v. Greer, (3rd Cir. 1966) ‘365 F.2d 699 ..”.::.

- am °

te

é

Table of Cases. |

; Se Millie ed ae Sc eam

Leathers’ Sols v. ' Goldman (6th Cir. 1958) 952) |

OP 2d 18S ow sete c cere sees dete wee :

Lichter v.. Goss, (7th Cir. 1956) 232 F.2d 715 . : =

Main Line Theatres, Inc. v. Paramount Film Dis: |

trib. Corp., (3rd Cir. 4962) 298 F.2d 801, cert.

CMO US. GEE: SG IIS... 12

- May v. LeClaire, et al., 78 US. 217 (asmiy’ hase eas -12

Metropolitan Water Co. v. Kaw Valley Drainage ae

Dist., (1912) 223 U.S. 519 ...... 02... eee 14

Ringhiser v. Chesapeake & Ohio Rwy, .. (6th

Cir. 1959) 264 F.2d 62 .........M......4.. 14

P Texas & Pacific Rwy. Co. v. Anderson, (1898) 149

MI cco ss oes eed peas ake ra taass M.

United ‘States v. Gould, (5th Cir.. 1962) 301 F.2d ids

United Staten v. Jacobs, (4th Cir. 1961) 298 F2d decks

eee Vila wid 6 de edeiweeh) s&s Ga aN en, a .*.

6 : ; ‘ 7

_ MISCELLANEOUS *

Federal Rules of Civil Procedure ocaie Pears eaens 13

= :

\

oe

- Supreme Court of th the United States

i OCTOBER TERM, 1966

NO. 816

JANE G. KELLY, Petitioner,

v.

AGNES J. REEVES GREER, MELLON NATIONAL

' BANK. AND TRUST COMPANY, and PITTSBURGH

NATIONAL BANK, Respondents.

4

BRIEF IN OPPOSITION TO PETITION hs

- FOR CERTIORARI - |

QUESTION Ss PRESENTED

_ .L Where a United States Court of Appeals ordered - -

judgments of. dismissal to be vacated in certain actions .

in-order to restore the District Court’s power to enforce

a Settlement Agreement and upon Plaintiff’s assurance

. that she would go forward with the settlement if the

_ cases were restored to active status, but, upon remand,

_ » Plaintiff refused to perform ‘or to accept performance,

demanding instead the right to claim damages for De-

fendant’s alleged bréach of the Settlement Agreement,

_- did not the District Court have power summarily, to

order Plaintiff to go forward with the settlement?

dl. Where the mandate of 4 Court of Appeals re-

quires the entry of a certain order by”a. District, Court,

‘may the filing of a petition for certiorari to review the |

propriety of the mandated action be delayed | until after.’

, “uch an order has been entered by the District. Court ~ aA

and thereafter affirmed by the Court of Appeals as a.

" proper compliance with its mandate, or must certiorari _

: be sought within’90 days after the entry of oe Court of

Appents nae 4 en? seid

Be )

G

_ Statement of the Case.

_ STATEMENT OF THE CASE.

Plaintiff (Petitioner herein) seeks to set aside an

' Order of the United States District Court for the West-

. ern District of Pennsylvania,‘ affirmed and reaffirmed

by the Court of Appeals for the Third Circuit. The

Order appealed from compels Plaintiff to go ‘forward

_ with a Settlement Agreement which will dispose of liti- |

gation which has been pending in: federal and state

courts’ in Pennsylvania, Ohio, | Florida, ‘Delaware and

' . West Virginia. (I—47a; 108a; 52b-71b) 1 ;

Plaintiff complains that the Order’ appealed from

deprives her of the right to substitute a claim for money

damages for promised perforniance to which she is en-

titled under the Settlement: Agreement. The history of.

these proceedings, however, demonstrates (a) that the

Order of the court below was a proper exercise of its

power summarily to compel parties to a pending lawsuit

' to carry out the terms of a Settlement Agreement en-

tered into before the Court; (b) that the Order of the

court below. was itself a proper compliance with the

mandate of the Court of Appeals which, had issued after.

an earlier successful appeal by the Plaintiff i hip these pro- »

ceedings; and (c) that the Order. appealed ‘from in no

.. way interfered with any election of remedy open. to

Plaintiff. Plaintiff had ‘no ‘choice but to proceed with

the Settlement Agreement, especially in view of. her

express assurances to the Court of Se: that she

onaionnnnd?

i Siditeiiale ‘preceded by Roman Numeral I are’

to the appendices printed at the first appeal below; those

by Roman II are to the appendices printed at

- the second ap Both sets of appendices have been

— with Court tind Petitioner. —

oo

‘ee>.

Statement of the Case.

would do . 80, in reliance upon whieh that Court had

sustained a? earlier appeal. ‘

Plaintiff is the adult, married daughter of the in- ~

dividual Defendant, (Respondent herein). The basic

“controversy, which led to the commencement of a num-

ber of lawsuits in several states in the 1950’s and early

1960’s, grows out of the fact: that certain property, :in-

cluding ‘sécurities, had been registered in the name

. “Jane Greer” a name by which both mother and daugh-.

ter have been known. The dispute between them con-

_ cerns the ownership of such property. (I—28a-29a)

Two lawsuits involving these claims ‘were com-

menced in 1959 and 1961,. -respectiv ly, in the Western

] District of Pennsylvania, ‘where certain of the property

had been found in the possession of the _ two. Banks

which are named as Defendants in these ‘proceedings. 2

In January 1963, after the two actions had been called

¥ for trial, Plaintiff and’ individual Defendant reached a.

settlement agreement. A stipulation outlining the set-

- tlement was read to the Court. and, in, accordance with —

its provisions, Plaintiff dismissed the basic” actions with

prejudice. (I—43a-51a)

The compromise contemplated not ie % ssitinaeset 3

_ of the actions.then pending in the Western District of

Pennsylvania, but of the entire, broad, intra-family dis-

2. -Plaintiff is, and at all times material hereto —

has been, a.citizen and resident of the State of: Florida. |

_ Defendant is, and at all times material hereto has been,

“a citizen and resident of the State of West °

fore, jurisdiction in the basic actions in the West-

‘ern District of Pennsylvania was obtained under gee

Uae 1655. (I—11b-13b) oe

u Statement of the Case. »

~

pute. It provided for the transfer of various items of,

- property, for the dismissal of all pending suits, and for

the exchange of general releases; but the principal pro-

vision of the settlement involved the establishment of

two trusts to which the individual Defendant was to |

transfer a large quantity of stock in two corporations.

(I—43a-50a) The agreement provided that ‘the Plain-

»

tiff should be the life beneficiary of the first of these

trusts, with power in the Trustee to consume principal .

for her benefit and‘ with a remainder in favof of her

children. ‘The individual Defendant was to be the life

beneficiary of the second of the trusts, with power to

consume principal durjng her lifetime, and with re-

mainder to the Plaintiff’s three sons by her first x mar-—

‘Yiage. (I—44a-46a)

The Settlement Agreement called. upon | the attor-

. neys for both parties by March 1, 1963 to prepare the

. Trust Indentures and other documents which imple-

mentation of the settlement required. The parties con-

templated a closing under the Settlement Plan by May

1, 1963. (I—50a)

Soon after the settlement. chad been agreed to, dis-

agreement arose concerning the settlement itself. Plain-

tiff’s' principal complaint against Defendant has been. _

_ over the failure of the parties to effectuate the: dis-

missal of an action pending in a state court in Florida,3{.

not the fault of this Defendant. As early as’ February

’ 1963, this Defendant filed a motion asking the Florida

3. That the Florida suit has not been dismissed oS

to dismiss the action with prejudice at her cost.

- |(I—83b). That motion would have permitted the entry ~

of a dismissal in any form acceptable to the Court. The

-Sroumatances gureunding the daputa about the di

‘@

ar

Statement of the.Case. -—

but she has also charged that in February or March of -

1963, her mother told her that she did not intend <to

*,. Carry out the Settlement Agreement. 4°

. ©

«

.

me

CS

missal of the Florida action are detailed in Appellee s

Appendix in the first.appeal. (I—22b-23b) Even during

the pendency of the ancillary proceedings, Defendant

‘has indicated her continued’ willingness to. assist in

bringing about the dismissal of the Florida action, if

Plaintiff would indicate her willingness to £0 forward

_ with the Settlement Plan. (I—45b)

4, Contrary to the statement made ‘in the Petition

for Certiorari (p. 14, ftn..9) Plaintiff's assertions re-

specting this conversation have been denied. (I—28b)

. Moreover, Plaintiff’s claim that her mother made such’

" statements in February or March 1963 loses all proba-

tive force in the face of the indisputable fact that at.

the end of March 1963, the Defendant furnished Plain-

tiff with copies of drafts of the various agreements

needed to carry out the Settlement Plan .and has re-

peatedly since solicited Plaintiff’s cooperation to con-

summate the settlement. .(I—39b-41b) Plaintiff’s own

’ counsel has conceded that Defendant and her counsel

have always taken the position that the parties should

go forward with the Seftlement Agreement. (II—5b)

Defendant's good faith in these efforts to carry out the

settlement since January 22, 1963 is evidenced by the

diligence with which she has undertaken the preliminary

. steps necessary to the accomplishment of the Settlement _

_Plan which calls for the distribution of the great bulk’

“of her extensive holdings. Her. accountants and attor-

‘ neys, acting pursuant. to her instructions, have prepared .

- the elaborate trust instruments and other documents -

needed to carry out the plan and ah made accounting ,

studies, prepared deeds, drawn releases, and have done

the other things which the Settlement. Plan contem-

* plated. (I—33b) In contrast, Plaintiff has contributed —

‘ nothing to these efforts; she has refused even to co-

operate with Defendant’s efforts. Although Plaintiff has _

iB complained that - ‘the — trust ae Sipe fie :

a)

@ &

_‘Statemont of the Case ee .

he

‘his has been denied by the Dafendani, who inaists

7 that she’ has been at all times ready, wiling sm stile. to

proceed with the settlement. °

It is Defendant’s position that Plaintife becarhe dis-

. satisfied ‘with the settlement, shortly after entering into-

it, because the bulk of.the benefits therein provided for -

‘ * were to be held in trust and would not be subject to her

control. Defendant has’ charged that Plaintiff has en-

gaged in a calculated campaign to sabotage the settle-

- ment and to frustrate its purposes in order to substitute

a claim for.money: damages for the mutual benefits -

‘ie: er mother expected to assure herself, "her daugh-

“ter an? her. grandchildren under the Settlement Plan. '

: (I-—19b-21b; 83b-37b) :

In April 1963, Plaintiff filed, what she- arma :

as an “Ancillary Complaint,” at “the Term and Number

of the actions in the Western District of. Pennsylvania.

. which she had dismissed with prejudice about six weeks

3 “earlier. In the “Ancillary” Complain’ Plaintiff alleged

‘ ° that Defendant had repudiated the Settlement Agree-:

- mient and demanded damages in the | amount of

_ | $15,000,000.5 - ;

,

Defendant filed a responsive answer, vigorously :

denying that she was in default under the Settlement

, and submitted by. Defendant are inconsisterit with the

Settlement “lan; she has refused to state the respects

Be Ss Pe oe MM cal ar ae ae ed:

(E84; I—39b-45b) |

5. In July 1963, after exgument before the Court _

on the question of the Court's jurisdiction of the first.

ao One Complaint, Plaintiff filed a second “Ancil-

tg

ae singin eect seaking'« dedaratry Jods

r ee

—

‘Statement of the Case. |

cea ‘Aming other defenses, the Defendant shale

-lenged the. Court’s jurisdiction over her person because

_ (a) she had never been served with process in the action

‘exeept pursuant to 28 U:S.C. § 1655, and (b) because

_ the principal actions had: been dismissed with prejudice

so that there was nothing then pending’ in the Cour't to

-which the Plaintiff's new Complaint could properly be

| ‘paid ta. be “ancillary.” * (~ 17b-20b). The District Court

_ held that it had-no jurisdiction of the claims asserted in

the “Ancillary ‘Complaints, ” grounding its decision upon co

' ite fact that the principal.actions had been dismissed

With prejudice. (I—9la-95a) Plaintiff appealed. When

the matter came on for oral argument before Judges

ae McLaughlin, Kalodner and Staley, the. Court expressed.

interest in the Defendant’s assertions of her willingness ©

to go forward with the Settlement Plan. (I—1ib)' In ©.

- open court, the Court of Appeals explored the possibility. - ease

7 of putting*the Settlement Plan back-on the track, invit-. .

_ ing Plaintiff and ‘Defendant to ente§into an “ancillary”

"settlement, as it were, rather than"to continue the dis-

pute ‘about. whether the conduct of the mother had ex-

cused the daughter of her obligati to go forward

. with the Settlement Plan. (Ii—12b-I13b) Counsel. for _

Defendant had previously asserted his client’s willing-

ness to go forward with the Settlement Plan: After a

thomentary hesitation, counsel for Plaintiffé agreed

that Plaintiff would also go forward with the settle-

ment, if the proceedings should be restored to the status

- which they had had immediately before the entry of

the judgments of dismissal in the principal> actions,

(II—15b) The Court of Appeals accepted these assur-

a5 Not her pi<éent counsel. oe a

ide.

April 14; 1965, the District Court entered an Order

Statement of %he Case.

ances as 5 “dispositive” of the’ appeal ( mere saa ieee. 5)

‘after entered its Order reversing the dismissals of the

the District Court, with instructions : to reinstate the

actions to the “status quo existing ; . . following the

= reading ifito the record of the Settlement Agreement _

but ‘prior to the orders bomeamre be the actions. ad oes

7a) % / .

Nogwithstanding the assurances piled 1 her counsel ~

_.. had given to the Court of Appeals, Plaintiff refuséd to

go forward with the Settlement. Plan. Accordingly, on

reciting its conclusién “that the parties are’ bound by

: should, begin to. effectuate compliance with the Settle-

ment perretet, in accordance with a ‘time schedule

. ae

- into: (see Petition for Certiorari, p, 8, Ftn. 8) This is, _

. an incorrect interpretaijon of the Order. The Court's

\

“@ Plaintiff treats this recital : as a declaration by

the District Court concerning the legal effect. of .the

Agreement as of January 22, 1963 when it was entered

-. Fecital is that the partizs are bound by the terms of the -

Agreement. The Oréer speaks as of its date, namely,

April 14, 1965. Thus tie Court at that time considered

Plaintiff, as well as Defendant, to be bound by the terms ©

of the stipulation. This is in effect a rejection of Plain-|

8 contention that she was free to choose not to per-

“fora The Order, thus, is not a declaratory judgment °

. that the settlement stipulation im

_tions when it was entered into; it is a formal rejection

binding obliga-

by the Court of .the Plaintiff's claim that she was free

to elect to rescind the obligation and to claim

damages

3 = Defendant’s alleged eee.. The Court’s _— is

_ _ Ancillary Coniplaints. It remanded the proceedings'to | __

__” the terms of the: Settlement Stipulation read into the =

-* record on January 22, 1963”7 and providing that they

.

"Statement of the i

established in the Order. (mr Sta:bea) Oi Geach the | eed ea

Court of Appeals held’ that the Order of the District Se a eo

Court requiring the Plaintiff to go forward with the eee

‘ Settlement’ Plan was a proper interpretation of the _—-

oi, "court of Apieate tuandats oc tha’ axctige ipgiet: bad |

ae - ‘iin the Order. After rehearing, it reaffirmed the _—>

_ Order requiring Plaintiff to go forward with the settle- bs, cork ©

et eS Se ee Pee a eee Bcc Sad

e .

ee

~

*~

moe

~~ Argument.

: The decision Sy the Court of ee is not in con-:

flict with the decision of any: other Court of Appeals; ;

and none of the other considerations sauces review

-on certiorari i is present. —

Plaintiff has’ not been coupled cicdionl her will to

elect specific performance rather than the pursuit» of

her claim for money damages. At the oral argument on

the first appeal, Plaintiff elected to go forward with the

"Settlement Plan. She. obtained the benefits of her elec- —

tion in the form of a reversal of the District Cgurt’s 8°

2

a "earlier judgment and the rem emand. of the proceedings to

that Court. Plaintiff cannot now repudiate her aysteag

_ and, at the same time, retain the"benefits thereof. +

This case presents a routine application. of ordinary

principlés of waiver of breach; of election of remedy* _

.by Plaintiff's deliberate choice. It: involves an in ordinary

___-illustration of the right of a Court summarily to enforce |

e F

?

2

a settlement agreement made before it. The Order ap- ;

. pealed from. does not conflict with any. conatsturtonal

or statutory right to .a jury trial.

Finally, the application for certiorari is hot timely.

| Plaintiff's basic complaint is. with the degision of the .

Court of Appeals, ordering .

gs be re-

“status quo immediately after the settle-

‘ment had been agreed to and before the basic actions —

had been dismissed”. This Order was made*in July 1964, -

in the first appeal. The Order of the District Court which

is involved in the preserit proceedings was entered pur- -

suant to the mandate of the Court of Appeals after the .

first oe The Petition for Writ of Certiorari i is, there-

C5. =

eee

Argument. a

” fore, an untimely string: so’ have thie Quart deviow « mae. ‘3

__ decision of the Court of Appeals made more than two

7 years here ae Petition ee ee 3

: e : s &.

Becks None of the Considerations Which Make Appro- . et :

3 potato Miviow: on Welt at Cobtharent te Ptaseat trFite, Se eer op eee

Case. — a ie

‘There is not even a eolorable ‘conflict between the

decision of the Court of Appeals for the Third Circuit .

which is sought to be reviewed, and the decision of the

Court of Appeals for the Fifth Circuit in Kelly v. Greer,

354. F.2d 209. The two decisions, rather than being in. L6

conflict, are entirely harmonious. All that the Court of _ "Fee

Appeals for the. Fifth Circuit has determined is that “© —- ~

_ Plaintiff’s rights under the Settlement Agreement must’ ©

be definitively. decided in the pending case inthe Third - =

—.~Cireuit. There is no conflict of ay ae between the. Soe Be

_ . determinations of the two Courts. nts 3

Plaintiff's contention that she has been. depcivell a of |

_ her constitutional or statutory right. to a jury trialof . -

‘her claim for damages requires more serious Ai ae

but is likewise withont ‘merit..2 =". Ni

-“*\ The plain ‘answer to Plaintiff’s contention is that:

the thoice of remedy was not made for her by the. .

Court; she madé’the election: herself. Plaintiff's argu-

ment: ignores: the crucial fact. that the. favorable out-

come of her earlier appeal was the product of the -—

. Surances of her counsel to the Court that if the cause _ :

‘was remanded to the District Court, Plaintiff would go . 4

"forward with the Settlement Agreenient. Plaintiff is at-

tempting to retain the benefits she’ derived from’ these ”

' assurances but to repudiate - condition on which they

were given. *

fie

o

7 ats

&

i

Argument.

oa.

|The settlement agreed. to before the District Judge

° 'v. Universal C.1.7. ~* (10th Cir. 1958) 2 259 F.2d 685;

oa: _-AM States Investors, Int. v. Bankers Bond Co:, (6th Cir. :

1965) 343 F.2d 618, cert; den. 382 U.S. 830, rehearing

den. 382 U.S. 922; Main Line Theatres, Ine. v. Paramount

» Film Distrib. Corp. (3rd Cir. 1962). 298 F.2d 801,-cert. ~.

denied 370 U.S. 989; Cummins Diesel Michigan, Inc. v. ©

_. The Falcon, (7th Cir. 1962) 305 F.2d 721; Ingalls Iron ©

‘Works Co. v. Ingalls et ‘al. (D.C.N.D. Ala. S.D. _— 177

ee Supp. 151, aff'd. 280 F2d 423. — |

As stated i in Cummins Diesel Michigan, Inc., at 305 |

eo 2d 123:

* “Rederat afa state courts have held’tnder a

| great variety of circumstances that a. settlement

wes agreement or stipulation voluntarily . entered into

_xannot be repudiated by. either~party | and will be ©

summarily enforced by the. court.” (Zenphasia pee

pe aun :

‘This Court in May v. LeClaire, supra recognized

this Heaters mee stating:

, According to the face of the proposition |

it involved the settlement of unadjusted demands on .

both sides. It was made in a spirit of peace and —

compromise, and was accepted in a corresponding

spirit. It is the duty of a court of equity to uphold

such an agreement, to protect and enforce the

rights of both parties‘ under it, and to. carry it out

- as far as the facts, which subsequently occurred,

as

: Argument. ,

and the settled 4 pilates of our Juripridenes, will

_ permit.” (20 L.Ed. at p.52) — ,

In a case such’as this, the Courts have broad equi-

. table powers not only to enforce an. agreement entered

_. into before the Court, but also.to make appropriate

modifications therein, to adapt the agreement to the in- | oe

_tentions of the parties, without their express consent.

English v. Cunningham, (D.C. Cir. 1959) 26% F.2d'517,

cert. den. 361 U.S. 897, 905, rehearing den. 361 U.S..950; . .

—«U~LB. v. Jacobs, (4th Cir. 1961) 298 F.2d 469; Leathers’ —

‘Sons v. Goldman, (6th Cir. 1958) 252 F.2d 188.

_ Nor should it be overlooked that the relief. sought .

by Plaintiff required ‘the opening of a judgment. The -

Court had the power to impose reasonable and just con-

ditions on the granting of such relief. F.R.C.P. 60(b); -

' ULE wv. Gould, (5th Cir. 1962) 301 F.2d 353; Bridous v.

Eastern Air Lines, Inc., (D.C. Cir. 1954) 214 F.2d 207, .

cert. den. 348-U.S. 821. The Court of Appeals and the |

ay. Distriet Court were. both justified in treating Plaintiff's

ee Leon uct as evidencing her assent to an Order cdi iti

Pag ll upon her going forward with the settlement. eee

_' The Order may also be sustained as an application

of the rule of waiver of breach or election. Acme Process __

‘Equipment Co. v. U. 8., (Ct. of Claims 1965), 347 F.2d

509; cert. granted 384 U.S. 917; Lichter v. Goss, (7th

Cir. 1956) 232 F.2d 715. |

This case, while it nibs an seniaas fact situs: a

tion and issues of importance to the. parties, does not

present an appropriate instance for the issuance of Writ

of Certiorari, under the considerations by which the .-

exercise of this Court’s discretion i is normally measured.

=

iene sos - Argwivent,

IL The piiiiaaiiia hws Certiorari Is Untimely.

_ The Order of the District Court entered on April 14, -

1965 was entered in accordance with the mandate of the.

Court of Appeals for the Third Circuit, issued on Sep- © |

- tember 21; 1964 pursuant to its Order of July 20, 1964.

(1I—37a) The Court of Appeals has. held in the second |

appeal that the District Court correctly ricer pare its

_ mandate. Kelly v. Greer, 365 F.2d 669 at 672:

The Order of the District Court entered on April 14,

1965 involved a matter about which it had no discretion,

- Ringhiser v. Chesapeake & Ohio Rwy. Co., (6th Cir...

1959) 264 F.2d 62. If any review by this Court was de- | ai

sired, certiorari should have been sought from the Order —

and Mandate of the Court of Appeals on the earlier ap- -

ao peal Metropolitan Water Ca: v. Kaw Valley Drainage é

>, District, (1912), 223 U.S. 519; Texas & Pacific Rwy. Co.

"-b, Anderson, (1893)- 149 U.S. 237; Aspen Mining &

Smelting Co. v. Billings (1893) 150 U.S. 31.

: In these. circumstances, the present application for

: review on . certiorari is out of time. .

: Respectfully submitted,

ice ‘ ELDER W. ‘MARSHALL

Attorney of Record for niepond. ae

‘ent Agnes J. Reeves Greer

747 Union Trust Building

Pittsburgh, Penna: 15219

Additional Counsel for Respondent : toe

. GItBert J. HELWIG - fly ages

REED SMITH SHAW & McCray | wae

Pittsburgh, Penna. 15219 )

RicHARD F. Stevens) vein OSD.

BAKER, HOSTETLER & PATTERSON. |

- Cleveland, Ohio 44115 ~