Opposition Brief — Aluminum Co. of America v. Woods Exploration & Producing Co.

~ ie

OCTOBER TERM, 1974

NO. 74-1525

ALUMINUM COMPANY OF AMERICA,, ET AL,

Petitioners,

v.

WOODS EXPLORATION & PRODUCING COMPANY,

INC., ET AL, Respondents.

BRIEF OF WOODS EXPLORATION &

PRODUCING COMPANY, INC., ET AL, IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

LEvERT J. ABLE

1201 First National Liife Bldg.

Houston, Texas 77002:

MANDEL & WRIGHT

HERMAN WRIGHT

1901 First National Liife Bldg.

Houston, Texas 77002

Tom F. CoLeMan, Jr.-

1201 First National Liffe Bldg.

Houston, Texas 77002

Attorneys for Respondents

Woops ExPpLoraTion & PRopuc-

ING ComPANyY, INc.-. STANLEY

C. Woops, SOUTHEASTERN PIPE-

LINE COMPANY

No.1 ouston,’ 77002

” ante :

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TABLE OF CONTENTS

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I.

II.

Ill.

IV.

VI.

It was proper for the jury in the second trial to be

informed of the outcome of the prior litigation, since

the issue before the jury in the second trial presumed

the earlier findings on the monopolization issue ....

The underlying purpose of Rule 54(b) was served

by the consolidation of separate appeals from the

judgment on the monopolization issue and from the

judgment on the extraction plant issue, for the pur-

pose of oral argument and decision by the Court of

Appeals, where the Petitioners suffered no injury by

partial final judgment under Rule 42(b) .........

On the second trial, the Court properly refused to

re-submit antitrust liability to the jury and limited

the trial to the issue of damages flowing from

ALCOA, et al’s interference with the liquid extrac-

tion plant through their concerted activity ........

The trial Court properly denied, at the first trial,

evidence of drainage and Texas Supreme Court de-

cisions, which held that Woods, et al (Respondents)

produced from the common reservoir more gas than

that underlying their tracts, on the issue of monop-

olization, where there was no dispute over the fact

and that all of the gas drained from under Petition-

ers’ property was legally produced ...............

. Petitioners were not denied the right to develop be-

fore any jury the claimed drainage and confiscation

of vast quantities of Petitioners’ gas by Respondent

The trial Court correctly gave Instruction No. 32 to

the jury, because it followed the holding of the U. S.

Supreme Court and related to the question of South-

eastern’s preparedness to go forward with the con-

struction of the proposed extraction plant ........

NS cdo ees eed Kc aA cae Dla caeawmaearene

Coptiicate CF Samir oo aio oS so os beh oe ee ere ee one’s

14

16

19

19

21

24

26

II

LIST OF AUTHORITIES

CASES

Aluminum Co. of America v. Woods Exploration, Inc., 385

US. 991 (1966), 87 S.Ct. 602, 17 L.Ed.2d 450 .......

American Alliance Insurance Company v. Brady Transfer

and Storage Co., 101 F.2d 144, 151 (8th Cir. 1939)..

Beetler v. Sales Affiliates, Inc., 431 F.2d 651, pages 654-

i ee ra Veaasatianebacnnct ae «

Blonder-Tongue Laboratories, Inc. v. University of Llinois

Foundation, 402 U.S. 313, 91 S.Ct. 1434 (1971).......

California Motor Transport, Inc. v. Trucking Unlimited, 44

SA, ME REUUEE hob ewe hides neens sche ccertacseccecs

Cirillo v. Commissioner of Internal Revenue, 314 F.2d 478,

SR ED Cobb GUeccdceneeddeeechacetec.

Consumers Petroleum Co. v. Consumers Co., 176 F.2d 441,

ee ee ae ee ere

Continental Ore Company v. Union Carbide and Carbon

Corporation, 370 U.S. 690, 698, 82 S.Ct. 1404, 1409....

D.C. Federation of Civil Associations v. Volpe, 459 F.2d

RR Re a ee ere

Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474

et EE ont ba ibe ones badndevvececvccese

Furr v. Herzmark, 206 F.2d 468, 472 (C.A. D.C. 1953)..

Gasoline Products Co., Inc. v. Champlin Refining Co., 283

Se ee a UL ROUEED daunnewecdseseevencsss

Gottesmann v. General Motors Corp., 414 F.2d 956, pages

963 to 965 (2nd Cir. 1969), cert. den’d 403 US. 911...

Hanover Shoe, Inc. v. United Shoe Mach. Corp. (M.D. Pa.

1960) 185 F. Supp. 826, 828, affirmed 281 F.2d 481

(3rd Cir.) cert. denied, 364 U.S. 901, 939, 81 S.Ct. 234-

ee Ge ls CI Os Wa ob 06 6 bn ees ccceccusece

Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 136 (1921)

Lifetime Siding, Inc. v. U. S., 359 F.2d 657 at 661 ......

LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28 (E.D.

Se en Cea Sete Gussie lweNabecneheee ces cee

Mass. Bonding & Insurance Co. v. J. R. Thompson Co., 88

F.2d 825, 832 and 833 (8th Cir. 1937), cert. denied 301

RR Be AS Pe he ee ae

May Department Stores Co. v. Bell, 61 F.2d 830 (C.A. 8th

Pe Tthec once de cheb Sea sebhescascencecsnes

Miller’s Mut. Fire Ins. Ass’n of Illinois v. Bell, 99 F.2d 289,

Pe

Morehead v. Poland, 457 F.2d 694, 696 (C.A. 7th Cir.

EES ooh Sk SiR ie

Mutual Life Insurance Co. of New York v. Hill, 193 U.S.

Page

3, 20

Ill

CASES Page

Nowell v. Dick, 413 F.2d 1204, 1212-1213 (Sth Cir. 1969) 10

Ocean Accident & Guarantee Corp. v. Penick & Ford, Ltd.,

BGR FAG 208, SOO UO GM. TSGD) iv icc scsaccccssess 18

Railroad Commission v. Alcoa, 380 S.W.2d 599 (1964).... 21

Railroad Commission of Texas v. Rowan & Nichols Oil Co.,

310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940).... 19

Railroad Commission of Texas v. Rowan & Nichols Oil Co.,

Sib, US. SIO, G1 GCL. S43 CIOGL) wos ccccccsccccsene 20

Railroad Commission v. Woods Exploration & Producing Co.

Cs Cs Se MRUEE EM cai Kbn weber sciccnasencese 3

Smith v. Pittsburgh Gauge and Supply Co., 323 F.Supp.

SE Ae, OEE, Fan as Eds cha deb Adinsewevecoress 24

Stagecrafters-Club, Inc. v. District of Columbia Division of

American Legion, 111 F.Supp. 127, 128-129 (D.C. 1953) 13

Thompson v. Camp, 167 F.2d 733 (C.A. 6th 1948)...... 18

Thorpe v. National City Bank of Tampa, 274 F. 200 (C.A.

es Eee errrrr rey CTT TTT ee Ter Te eT err 18

Travelers Insurance Co. v. Bell, 188 F.2d 725, 726 (Sth Cir.

Oy rr ery St ere rry rer re rey eee 10

United States v. Bucon Construction Co., 430 F.2d 420, page

oe Bere er ere rr eT ere Terr ete eee 13

United States v. First National Bank and Trust Co. of Lex-

ington, 263 F.Supp. 268 (E.D. Ky. 1967) ............ 24

United States v. Wainer, 211 F.2d 669, 671 (7th Cir. 1954),

RE, GE Ae Wl, OEE bed cbicc nad bascnencarreasznnes 13

Washington Gas Light Company v. Connolly, 214 F.2d 254

ic Be SRE be kee sens ccnawereasnescenec vanes 18

White v. Murtha, 377 F.2d 428, pages 431, 432 (C.A. 5th

Rk SE whi Sank Seb A heb neha vans bohntend enanebers 17

Woods Exploration & Producing Co. v. Aluminum Co. of

America, 36 F.R.D. 107 (Judge Ingraham—S.D. Texas,

a ee rea eh ec acuw ins 2, 16

Woods Exploration & Producing Co. v. Aluminum Co. of

America, 382 S.W.2d 343 (Tex. 1964) mre ........... 2,23

Woods Exploration & Producing Co. v. Aluminum Co. of

America, 438 F.2d 1286 (Sth Cir. 1971) ............. 3

UNITED STATES STATUTES

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BP De SEPOEED Scewoken deaaebecrcsnonaceeccecnne’s 2

Pe Stas DEON Mma ibd cet besddnde cue Sesnndxednvatneds 15

FEDERAL RULES OF CIVIL PROCEDURE

NN 5 vic WA cS cekwees OC i0s FAAES6 LGA cea RaD Deh KN ws 19

Se PEED Shc kaekade cen cen CORN EKADOSAN CRORE nels Ko 19

OTHER AUTHORITIES

Supreme Court Rule 19 2... csccscesessenesccvcccsessess 2,24

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO. 74-1525

ALUMINUM COMPANY OF AMERICA, ET AL,

Petitioners,

Vv.

WOODS EXPLORATION & PRODUCING COMPANY,

INC., ET AL, Respondents.

BRIEF OF WOODS EXPLORATION &

PRODUCING COMPANY, INC., ET AL, IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINIONS BELOW

The slip opinion of the Circuit Court of Appeals, March

13, 1975, No. 72-2792, sought to be reviewed, is set out

in Petitioners’ Appendix, pages 107-128. Motions for

Rehearing and for Rehearing En Banc were denied

April 24, 1975 (Petitioners’ Appendix, page 129).

The opinions of the trial court and Circuit Court of

Appeals providing the justification for denial of this

petition are those of (1) the first opinion of the Fifth

2

Circuit, Woods Exploration & Producing Co. v. Alumi-

num Co. of America, 438 F.2d 1286 (Sth Cir. 1971),

cert. denied, 404 U.S. 1047 (Petitioners’ Appendix, pages

38-96; (2) that of Tom C. Clark, retired Justice of this Hon-

orable Court, who sat specially as the trial judge below

(whose opinion, dated February 6, 1973, is not published

but appears at pages 97-106 in the Petitioners’ Appendix) ;

and (3) the Fifth Circuit Court opinion (dated March

13, 1975, not yet published but appearing at pages 107-

129 in Petitioners’ Appendix).

Other opinions involving some aspect of this self-same

4 lawsuit not set out in Petitioners’ petition are: Woods

Exploration & Producing Co. v. Aluminum Co. of Amer-

ica, 36 F.R.D. 107 (Judge Ingraham—-S.D. Texas, 1963);

Woods Exploration & Producing Co. v. Aluminum Co. of

America, 382 S.W.2d 343 (Tex. 1964) n.r.e.

¥ JURISDICTION

As Petitioners indicate in their petition, jurisdiction is

predicated on 29 U.S.C. 1254 (1). The petition was filed

on June 4, 1975, and counsel for Respondents received

a copy of the same on that date.

PP OUTS hee ee NG

; One searches the petition herein in vain for an indica-

: tion of its compliance with the considerations set out in

; Supreme Court Rule 19.

QUESTIONS PRESENTED

Stripped of the invectives, the editorializing, and the

ostentatious use of adjectives by the Petitioners, the ques-

tion. presented by Petitioners here is whether or not they

have finally had their day(s) in court as to this piece of

litigation.

ives LORS ITU PL AIR ONAN NS

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3

This case, in most of its aspects, has now been heard

and reviewed by two juries (first trial, six weeks; second

trial, one month); two Federal District Court Judges

(Ingraham and Singleton)—one on two different oc-

casions (Singleton); one retired Justice of this Honorable

Court, sitting specially as District Judge (Tom C. Clark) ;

two different panels of the Fifth Circuit Court of Appeals

(Judges Brown, Goldberg, and Clark, first; then, Cole-

man, Ainsworth, and Simpson); reviewed by the entire

Fifth Circuit Court of Appeals twice on motions for en

banc hearings; by the Texas Court of Civil Appeals, 382

S.W.2d 343, and by the Texas Supreme Court, writ re-

fused, no reversible error (Tex. 1964; holding that

“Woods” had a cause of action for “Alcoa’s” misuse of

the Railroad Commission’s processes); and there have

been three other opinions of the Texas Supreme Court to

which “Woods” was a party (holding that the gas pro-

duced by Woods did not involve waste and was legally

produced). (Petitioners’ Appendix pages 130 to 179).

This Honorable Court has twice before denied writs of

certiorari in this protracted litigation—once in Railroad

Commission v. Woods Exploration & Producing Co. (Tex.

1966), 405 S.W.2d 313 (Petitioners’ Appendix, pages 130

to 163), cert. denied sub nom, Aluminum Co. of America

v. Woods Exploration, Inc., 385 U.S. 991 (1966), 87

S.Ct. 602, 17 L.Ed.2d 450; and, second, in Woods Explo-

ration & Producing Co. v. Aluminum Co. of America,

438 F.2d 1286 (Sth Cir. 1971) (Petitioners’ Appendix,

pages 38 to 96), where petition from said opinion was

docketed in this Court as Cause No. 1712 at the October

Term, 1970, and writ of certiorari was denied by this

Honorable Court in 1972 in 404 USS. 1047, 92 S.Ct.

701, 30 L.Ed. 736 on “The facts and opinion, D.C. 284

F.Supp. 582; 304 F.Supp. 845; 438 F.2d 1286.”

EPC Oe eR ee ene

Penta hab aici SUR ees A RK RAT IR, FEO SE A a aE

4

It is doubtful that many petitioners to this Court have

had, prior to filing their petitions, such massive due pro-

cess as the Petitioners here. Their real complaint is that

they have not been able to prevail.

STATEMENT

Petitioners, in their “Questions Presented” and in their

“Statement of the Case,” overstate their case. By way

of example, in “Question Presented No. 5” and “Statement

of the Case,” pages 5 and 8, of their Petition, the Petition-

ers state that they have not been permitted to develop

before any jury their contention as to the drainage and

confiscation by Respondents of vast quantities of Petition-

ers’ gas. It is uncontroverted that one of Alcoa’s theories

at the second trial (the one involved here) was that the

extraction plant was not economically feasible at the time

construction was proposed because, at the time, Alcoa

et al were challenging in the Texas courts the legality of

the 1/3—2/3 formula and the Railroad Commission’s

allowing multiple completions on Woods’ small town-lot

wells (See Circuit Court opinion pages 122 and 123,

Petitioners’ Appendix).

The Petitioners again overstate their case by declaring

(page 8 and elsewhere in their Petition), that “the first

trial verdict was perpetually paraded by the judge and

counsel alike befcre the jury.”

For a correct factual background, Respondents re-

spectfully refer the Court to: (1) the first opinion of the

Court of Appeals, 438 F.2d 1300 (Petitioners’ Appendix,

38-45 and 62-64); (2) the Memorandum Opinion of the

Trial Judge on February 6, 1973 (Petitioners’ Appendix

pages 97-106), and (3) the second opinion of the Court

of Appeals on March 13, 1975 (Pages 111-113, Petition-

ers’ Appendix).

Hil.

5

REASONS FOR NOT ALLOWING THE WRIT

I.

IT WAS PROPER FOR THE JURY IN THE

SECOND TRIAL TO BE INFORMED OF THE

OUTCOME OF THE PRIOR LITIGATION, SINCE

THE ISSUE BEFORE THE JURY IN THE SEC-

OND TRIAL PRESUMED THE EARLIER FIND-

INGS ON THE MONOPOLIZATION ISSUE.

(Reply to Petitioner’s Question Presented for Re-

view #1 and Reason Number I for Allowing the

Writ, Petitioner’s Petition, pages 4 and 14)

. THE UNDERLYING PURPOSE OF RULE 54(b)

WAS SERVED BY THE CONSOLIDATION OF

SEPARATE APPEALS FROM THE JUDGMENT

ON THE MONOPOLIZATION ISSUE AND FROM

THE JUDGMENT ON THE EXTRACTION PLANT

ISSUE, FOR THE PURPOSE OF ORAL ARGU-

MENT AND DECISION BY THE COURT OF AP-

PEALS, WHERE THE PETITIONERS SUFFERED

NO INJURY BY PARTIAL FINAL JUDGMENT

UNDER RULE 42(b).

(Reply to Petitioner’s Question Presented for Re-

view #2 and Reason Number II for Allowing the

Writ, Petitioner’s Petition, pages 2 and 15)

ON THE SECOND TRIAL, THE COURT PROP-

ERLY REFUSED TO RESUBMIT ANTITRUST

LIABILITY TO THE JURY AND LIMITED THE

TRIAL TO THE ISSUE OF DAMAGES FLOWING

FROM ALCOA, ET AL’S INTERFERENCE WITH

THE LIQUID EXTRACTION PLANT THROUGH

THEIR CONCERNED ACTIVITY.

(Reply to Petitioner’s Question Presented for Re-

view #3 and Reason Number II for Allowing the

Writ, Petitioner’s Petition, pages 5 and 15)

6

IV. THE TRIAL COURT PROPERLY DENIED, AT

THE FIRST TRIAL, EVIDENCE OF DRAINAGE

AND TEXAS SUPREME COURT DECISIONS,

WHICH HELD THAT WOODS, ET AL (RE-

SPONDENTS) PRODUCED FROM THE COM-

MON RESERVOIR MORE GAS THAN THAT

UNDERLYING THEIR TRACTS, ON THE ISSUE

OF MONOPOLIZATION; WHERE THERE WAS

NO DISPUTE OVER THE FACT AND THAT ALL

OF THE GAS DRAINED FROM UNDER PETI-

TIONER’S PROPERTY WAS LEGALLY PRO-

DUCED.

*

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2

5

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es

V. PETITIONERS WERE NOT DENIED THE RIGHT

TO DEVELOP BEFORE ANY JURY THE

CLAIMED DRAINAGE AND CONFISCATION OF

VAST QUANTITIES OF PETITIONERS’ GAS BY

RESPONDENT.

(Reply to Petitioner’s Question Presented for Re-

view #4 and +5 and Reason Number III for

Allowing the Writ, Petitioner’s Petition, pages 5

and 16)

Blah OGD Noe Rebel Naina Mine aK aor ata eA Kciataets Bs

SANs sede

VI. THE TRIAL COURT CORRECTLY GAVE IN-

STRUCTION NO. 32 TO THE JURY, BECAUSE

IT FOLLOWED THE HOLDING OF THE U. S.

SUPREME COURT AND RELATED TO THE

QUESTION OF SOUTHEASTERN’S PREPARED-

NESS TO GO FORWARD WITH THE CON-

STRUCTION OF THE PROPOSED EXTRACTION

PLANT.

(Reply to Petitioner’s Question Presented for Re-

view #6 and Reason Number IV for Allowing the

Writ, Petitioner’s Petition, pages 6 and 16)

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7

ARGUMENT

Petitioners resort to the word, “trifurcated,” in a Madi-

son-Avenue effort to mask a specious argument which has

been considered and rejected by the Fifth Circuit Court

twice and once by Associate Justice Clark (Retired). In

fact, the same argument was presented by these Petitioners

in their prior petition for certiorari filed from the first

opinion of the Fifth Circuit Court of Appeals (404 U.S.

1047).

The simple fact is that the question of liability under

the Act (monopolization) was tried to a jury one time

(304 F.Supp. 845, page 847, 438 F.2d 1286, pages 1290-

1291). Growing out of that monopolization, Respondents

contended they had been damaged by the monopolization

of the Petitioners in “drilling for, producing and trans-

porting gas” (Question No. 2) in two respects: (1) the

pipeline and (2) the extraction plant. That first jury was

allowed to pass on only one phase of the damage issue—

the pipeline. When the Fifth Circuit Court reversed, it

simply said that the Respondents should be allowed to

prove, if they could, their damages regarding the extrac-

tion-plant phase of the damages, which extraction plant

had been thwarted by the concerted efforts of Petitioners.

The Trial Judge (Clark) on remand faithfully followed

the instructions of the Court of Appeals on this phase of

the damages and was affirmed for having done so, by the

same Fifth Circuit Court, which had ordered it done.

In one form or another, these Petitioners have repeat-

edly urged their argument of “drainage and confiscation.”

Indeed, the second jury spent several days listening to

this kind of evidence. It was this very evidence which

prompted Justice Clark in Instruction 32 to advise the

8

jury that lawful acts lost their “character (as such) when

they become constitutent elements of an unlawful scheme.”

The only newcomer, relatively speaking, to Petitioners’

stable of complaints, is as to the verdict in the first trial

which retired Justice Clark read to the jury as background

to explain the why of the evidence and issues in the second

jury trial. Even this has been passed on by the trial judge

and the Fifth Circuit panel which decided the case.

I.

IT WAS PROPER FOR THE JURY IN THE

SECOND TRIAL TO BE INFORMED OF THE

OUTCOME OF THE PRIOR LITIGATION,

SINCE THE ISSUE BEFORE THE JURY IN

THE SECOND TRIAL PRESUMED THE EAR-

LIER FINDINGS ON THE MONOPOLIZATION

ISSUE.

The Court of Appeals (page 121, Petitioners’ Ap-

pendix) clearly held the above.

The Trial Court’s charge to the jury on the prior ver-

dict, was invited by Petitioners. The Trial Court’s mem-

orandum opinion reflects the course of events:

“The Court in the first draft of the charge sum-

marized the jury findings at the first trial concerning

defendants’ monopolization of the extraction of gas

from Appling Field. When the defendants objected

that the characterization was not full and complete,

the Court then incorporated the whole verdict in

the charge. The defendants then objected to the

whole charge being read. The case was submitted on

the theory that the monopolization charge had been

established at the prior trial.” (Petitioners’ Appendix

104).

9

Petitioners again overstate their case when they say,

on Page 21 of their Petition, that the verdict was ad-

mitted for all purposes. The Court instructed the prospec-

tive jurors of the very limited purpose of the prior verdict

in considering the submitted issues (Circuit Court of Ap-

peals No. 73-1633, Appendix, 565-566). The court in his

charge also told the impaneled jury substantially the same

thing by Instruction Number 4, only in stronger terms,

as follows:

“Except where it is stated to the contrary in this

charge, you are specially instructed that the former

jury verdict and the answers therein do not constitute

any evidence in this trial and are not to be given

any weight or consideration whatsoever by you in

arriving at your answers to the issues to be submitted

to you for determination. You are instructed that

the matters tried in this trial were not tried or passed

upon in the former trial and that the issues submitted

to you for your verdict were not covered or included

in the former trial or in the verdict therein. You are

strictly admonished that you are to draw no favor-

able or unfavorable inferences from the jury verdict

in the former trial or any part thereof, either in favor

of or against any of the parties to this case, but are

to decide the issues put to you strictly on the evi-

dence which you have heard during this trial” (Cir-

ve Court of Appeals No. 73-1633, Appendix, 82-

3).

Absent any indication to the contrary, this Court must

assume that the jury followed the court’s instructions.

Lifetime Siding, Inc. v. U.S., 359 F.2d 657 at 661: Fair-

mount Glass Works v. Cub Fork Coal Co., 287 U.S. 474

at 485, 53 S.Ct. 252.

10

Petitioners also overstate their case on Page 21 of their

petition, when they say counsel flaunted the prior jury

verdict before the second jury and suggested to the second

jury that it should do the same thing to Alcoa that the

first jury had done. This is denied. However, Petitioners’

contention that the trial judge committed reversible error

by allowing Respondents’ counsel to utilize the prior

verdict in their jury arguments, if error at all, is fore-

closed by the fact that no objection was interposed to such

arguments. Travelers Insurance Co. v. Bell, 188 F.2d

725, 726 (Sth Cir. 1951); and Nowell v. Dick, 413 F.2d

1204, 1212-1213 (Sth Cir. 1969).

It is argued, on Page 19 of Petitioners’ petition, that

the submission of the verdict to the jury was improper

because it was not a final, unappealable verdict, and

they had in fact appealed such verdict. /nternational Shoe

Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449 (ist

Cir. 1963), cert. den’d 375 U.S. 820 (1963), cited by

Petitioners, is not in point. In IJnternational Shoe, the

Court of Appeals sustained the District Court’s refusal to

accept in evidence the prior government judgment because

of the time gap between the activities of the Defendant

relied upon by the government and those relied upon by

the Plaintiff. Obviously, such a distinction does not exist

in the present case.

The cases cited in the footnote on Page 19 of Petition-

ers’ Petition only state the well-established rule that, under

§5(a), the government’s decree must be final before

admissible in a subsequent civil action.

The portion of the prior jury’s verdict to which Petition-

ers devote the major thrust of their complaint is Question

11

No. 2, wherein the jury found Petitioners, with F. E.

Appling and/or others, monopolized, etc. Any contention

by Petitioners that this finding is not final is foreclosed

by the decision of the Court of Appeals in 438 F.2d 1286,

at 1304, wherein it was held:

“We find that Plaintiffs have satisfied the evidentiary

requirements of the offense of monopolization.”

and, at 1307, where it was held:

“that the jury could find on this state of the facts

that defendants possessed monopoly power in the

Appling Field within the meaning of the Act.”

What other finding of the prior jury can Petitioners

complain of as having been improperly submitted to the

second jury because not final? Petitioners cannot and

would not, of course, complain of the reading to the

jury of Finding No. 1, which was favorable to Petitioners.

The jury’s answers to Questions 3(a) and 3(c) could

not have harmed Petitioners in the instant trial in that

such findings related only to Stanley C. Woods, individu-

ally, and to Woods Exploration & Producing Company;

and, particularly, since the trial court below had instructed

the jury in its charge that “Plaintiff Stanley C. Woods and

Woods Exploration & Producing Company having intro-

duced no evidence entitling them to have their case sub-

mitted to the jury” only as to the Plaintiff, Southeastern

Pipeline Company (Instruction No. 42, Circuit Court of

Appeals No. 73-1633, Appendix, 97).

Finding 3(b) was favorable to Petitioners and could

have redounded only to Petitioners’ benefit in the eyes of

12

the second jury. The same is true of Finding No. 4, that

Fred A. Wolcott did not sign Exhibit No. 85-A (7-A in

the second trial). In fact, the previous jury’s Finding No.

4 was so favorable to Petitioners that they made almost

endless attempts to relitigate the same question in the sec-

ond trial.

The prior jury’s Finding No. 5 that Petitioners and

F. E. Appling prevented Fred Wolcott from signing Ex-

hibit No. 85-A, was affirmed and ordered reinstated by

this Court. It was made more than abundantly clear to the

second jury that Southeastern relied on the oral agree-

ment between Robert Topper on behalf of Lumar, and

Woods, on behalf of Southeastern, for the construction

and operation of the extraction plant. Parenthetically, 7-A

was only introduced by Respondents because the trial

court stated that it would grant Petitioners’ request for a

continuance if it were not going to be introduced by Re-

spondents (Circuit Court of Appeals No. 73-1633, Ap-

pendix 572, 573).

Respondents submit that it is obvious that the jury in

the second trial was advised of the prior jury’s findings

only in order to remove the void in the trial insofar as the

monopolization issue was concerned.

Glen Falls Ins. Co. v. Yarborough, 396 S.W.2d 200

(Tex. Civ. App. 1965), writ ref'd n.r.e., and Looney v.

Traders & General Ins. Co., 231 S.W.2d 735 (Tex. Civ.

App. 1950) writ ref'd n.r.e., cited by Petitioners, were

state court cases and are not factually or procedurally ap-

plicable to this case.

Petitioners’ real contention is that the jury should not

have been informed of the prior jury verdict because Peti-

at SSS et sie PLL EIS LI OTE ELE, LAE ELLER IRE RE OL TL re

13

tioners having appealed from the partial judgment, there

was no final judgment; therefore, it was still, so to speak,

in limbo. But not so. The jury findings as to monopoliza-

tion (Question No. 2 of first verdict), the Petitioners’ pre-

vention of the use of a joint pipeline with Lumar and the

option to participate in the building of a joint extract-

tion plant (Question No. 5 of first verdict) are, in view

of the U. S. Supreme Court’s denial of a writ of certiorari,

as between the parties, as final and binding as any judg-

ment entered on such finding can be.

Further, the reasoning in Sec. 5(a) cases fails in the

instant case simply because, if the first verdict should be

overturned by the appellate court, then the verdict in the

second trial would necessarily also fall. However, when

the verdict in the first trial was sustained, then—to all in-

tents and purposes— what was submitted to the second

jury by the trial court’s charge was, even under Peti-

tioners’ theory, a final verdict.

It is not error to acquaint a jury with a prior verdict or

proceedings between the same parties. See Beetler vy. Sales

Affiliates, Inc., 431 F.2d 651, pages 654-655, (7th Cir.

1970), United States v. Bucon Construction Co., 430

F.2d 420, page 425 (Sth Cir. 1970), Gottesmann v.

General Motors Corp., 414 F.2d 956, pages 963 to 965

(2nd Cir. 1969), cert. den’d 403 U.S. 911, Cirillo vy.

Commissioner of Internal Revenue, 314 F.2d 478, at 482

(3rd Cir. 1964); Stagecrafters-Club, Inc. v. District of

Columbia Division of American Legion, 111 F. Supp. 127,

128-129 (D.C. 1953), followed in United States v.

Wainer, 211 F.2d 669, 671 (7th Cir. 1954), cert. den’d

355 U.S. 815.

14

Il.

THE UNDERLYING PURPOSE OF RULE 54(b)

WAS SERVED BY THE CONSOLIDATION OF

SEPARATE APPEALS FROM THE JUDGMENT

ON THE MONOPOLIZATION ISSUE AND FROM

THE JUDGMENT ON THE EXTRACTION

PLANT ISSUE, FOR THE PURPOSE OF ORAL

ARGUMENT AND DECISION BY THE COURT

OF APPEALS, WHERE THE PETITIONERS

SUFFERED NO INJURY BY PARTIAL FINAL

JUDGMENT UNDER RULE 42(b).

In order to meet Petitioners’ contention that, somehow

or other, the separate trial of the second damage issue

(extraction plant) had been tainted by the first jury trial

and the partial judgment covering liability and one dam-

age issue (pipeline), the Fifth Circuit Court consolidated

the appeal of the Petitioners taken from the entry of the

partial judgment (re: the pipeline) which had been pre-

viously argued, with their appeal taken from the judgment

entered as a result of the trial of the second element of

damages (extraction plant). Following such consolida-

tion, further argument was ordered before the court. By

this process, the appellate court obviously considered all

aspects of Petitioners’ objections and, as it said, satisfied

the “underlying purpose of Rule 54(b)” (see pages 113

and 114 of Petitioners’ Appendix).

28 U.S.C. Rule 42(b) clearly provides for separate

trials, in the furtherance of convenience or to avoid pre-

judice or when separate trials will be conducive to expedi-

tion and economy, of any claim, separate issue, or number

of claims or issues, as follows:

¥

a Me ORE BETTE ae et a ea teehee te

15

“SEPARATE TRIALS. The court, in furtherance of

convenience or to avoid prejudice, or when separate

trials will be conducive to expedition and economy,

may order a separate trial of any claim, cross-claim,

counter-claim, or third-party claim, or of any issue

or of any number of claims, cross-claims, counter-

claims, third-party claims, or issues, always preserv-

ing inviolate the right of trial by jury as declared by

the Seventh Amendment to the Constitution or as

given by a statute of the United States.”

The appellate court’s actions under 28 U.S.C. 2111

make the claimed error harmless. Said rule reads as fol-

lows:

“On the hearing of any appeal or writ of certiorari in

any case, the court shall give judgment after an ex-

amination of the record without regard to errors or

defects which do not affect the substantial rights of

the parties.”

There is no possible harm to Petitioners by the court’s

entry of the final partial judgment. Since there can be

no question but that the trial court was duty bound

to reinstate the jury verdict, had the trial court in the

exercise of his discretion determined not to enter a final

partial judgment, what would have been the status of

the case? Certainly, Respondents would have their first

verdict. When the trial on the issues as to an extraction

plant culminated, as it did, in a verdict for Respond-

ents, the court would then have been duty bound to

enter a judgment on both verdicts with interest running

from the respective dates of the verdicts, thus reaching

the same result.

On the first trial of the case and first opinion of the

Court of Appeals, writ of certiorari denied, Petitioners

16

asserted the right to have an injunction against the prose-

Cution of the state court case and the authority for the par-

tial final judgment was to protect them; and the entry of

the trial judge, in the second trial, benefited them as well

as Respondents. The Court of Appeals in the first case

(pages 84 to 94 of Petitioners’ Appendix).

Contrary to the statement on Page 22 and Page 23 of

Petitioners’ Petition, the Circuit Court of Appeals, writ

denied, in the first opinion, did not hold that Respon-

dents’ original suit was solely centered on the question of

false nominations. It recognized (pages 61 and 62 of

Petitioners’ Appendix) that in Respondents’ Original Peti-

tion, Respondents asserted other grounds for recovery

besides the false nominations. Also see Woods Explora-

tion & Producing Company, Inc., v. Aluminum Company

_ of America, et al, 36 F.R.D. 107, page 112 (1963).

Ii.

ON THE SECOND TRIAL, THE COURT PROP-

| ERLY REFUSED TO RE-SUBMIT ANTITRUST

LIABILITY TO THE JURY AND LIMITED THE

TRIAL TO THE ISSUE OF DAMAGES FLOW-

ING FROM ALCOA, ET AL’S INTERFERENCE

; WITH THE LIQUID EXTRACTION PLANT

THROUGH THEIR CONCERTED ACTIVITY.

The Circuit Court of Appeals in the second opinion

(see pages 119, 120 and 121 of Petitioners’ Appendix)

held that the extraction plant issue was not so wholly

separated as to require the re-submission of the antitrust-

liability question to the jury.

Monopolization of the production and transportation

of gas from the Appling Field having been established by

jury verdict the Defendants’ witness Reiss, (Court of Ap-

LOLI OLN CV LL IL RON SPREE RE LENE AC ee

17

peals 73-1633 App. 1424), general manager of Alcoa,

admitted that the prevention of or restrictions on the

production and transportation of gas diectly affected

and/or prevented the extraction of its by-products, as fol-

lows:

“Q. So then the direct effect of stopping production

from the small, town lot owners, if you were suc-

cessful, you will also be successful in stopping them

from using any extraction plant? If it is curtailed,

it would make it uneconomical and if it’s stopped,

it would make it disastrous? That is corect, isn’t it?

A. Yes, sir.”

This admits that the violation of the antitrust laws caused,

or at least was likely to cause, the type of loss and injury

which the second jury found Petitioners, sustained (Jury's

Answer to Question No. Two, second verdict, pages 1(a)

and 1(b) of Petitioners’ Petition for Writ).

In Continental Ore Company v. Union Carbide and

Carbon Corporation, 370 U.S. 690, 698, 82 S.Ct. 1404,

1409 the Supreme Court held that a jury, as the trier of

the facts, must be permitted to draw from circumstantial

evidence (here, direct) the inference that the necessary

causal relationship exists.

There can be no question that, the Court of Appeals

in 438 F.2d 1286, page 1307, established Petitioners’

monopolization of the production and transportation of

gas in the Appling Field. The Trial Judge in the second

trial of this case, was duty-bound to follow that court’s

decision. Consumers Petroleum Co. y. Consumers Co.,

176 F.2d 441, 442 (C.A. 7th Cir. 1949): D.C. Federa-

tion of Civil Associations v. Volpe, 459 F.2d 1231, 1267

(C.A. D.C. 1972). White v. Murtha, 377 F.2d 428 Pages

431, 432 (C.A. 5th Cir. 1967).

18

No one reading the Court’s opinion in 438 F.2d 1286

can reach any other conclusion but that as to the extrac-

tion plant antitrust liability was held to have been estab-

lished and need not be retried. There is a wealth of au-

thority supporting a remand for the determination of one

of several damages issues without again resubmitting the

other damage issues or the issue of liability. Thorpe v.

National City Bank of Tampa, 274 F. 200 (C.A. Sth

Cir. 1921); Mass. Bonding & Insurance Co. v. J. R.

Thompson Co., 88 F.2d 825, 832 and 833 (8th Cir.

1937), cert. denied 301 U.S. 707; American Alliance In-

surance Company v. Brady Transfer and Storage Co.,

101 F.2d 144, 151 (8th Cir. 1939); and Ocean Accident

& Guarantee Corp. v. Penick & Ford, Ltd., 101 F.2d

493, 500 (8th Cir. 1939). Hanover Shoe, Inc. v. United

Shoe Mach, Corp. (M.D. Pa. 1960) 185 F. Supp. 826,

828, affirmed 281 F.2d 481 (3rd Cir.) cert. denied, 364

U.S. 901, 939, 81 S.Ct. 234-237 (Nov. 21, 1960); and

LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28

(E.D. La. 1971); Blonder-Tongue Laboratories, Inc. v.

University of Illinois Foundation, 402 U.S. 313, 91 S.Ct.

1434 (1971); Washington Gas Light Company v. Con-

nolly, 214 F.2d 254 (C.A. D.C. 1954); Thompson v.

Camp, 167 F.2d 733 (C.A. 6th 1948); May Department

Stores Co. v. Bell, 61 F.2d 830 (C.A. 8th Cir. 1932).

Forty-two years ago the Supreme Court of the United

States laid down the law which permits a separate trial

on unresolved issues. Gasoline Products Co., Inc. v.

Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513

(1931) in which the Court said:

“Here we hold that, where the requirement of a jury

trial has been satisfied by a verdict according to law

upon one issue of fact that requirement does not

RINE PLANE NER Pe TAL aR TERME 8 rey h mapmecareny ——

19

compel a new trial of that issue even though another

and separable issue must be tried again.” (Page 515)

See also Furr v. Herzmark, 206 F.2d 468, 472 (C.A.

D.C. 1953); Morehead v. Poland, 457 F.2d 694, 696

(C.A. 7th Cir. 1972); Federal Rules of Civ. Pro., Rule

42(b), Separate Trials and Rule 59(a).

IV.

THE TRIAL COURT PROPERLY DENIED, AT

THE FIRST TRIAL, EVIDENCE OF DRAINAGE

AND TEXAS SUPREME COURT DECISIONS,

WHICH HELD THAT WOODS, ET AL (RE-

SPONDENTS) PRODUCED FROM THE COM.

MON RESERVOIR MORE GAS THAN THAT

UNDERLYING THEIR TRACTS, ON THE ISSUE

OF MONOPOLIZATION, WHERE THERE WAS

NO DISPUTE OVER THE FACT AND THAT ALL

OF THE GAS DRAINED FROM UNDER PETI-

TIONERS’ PROPERTY WAS LEGALLY PRO-

DUCED.

V.

PETITIONERS WERE NOT DENIED THE

RIGHT TO DEVELOP BEFORE ANY JURY

THE CLAIMED DRAINAGE AND CONFISCA-

TION OF VAST QUANTITIES OF PETITION-

ERS’ GAS BY RESPONDENT.

The Supreme Court early held in Railroad Commission

of Texas v. Rowan & Nichols Oil Co., 310 USS. 573, 60

S.Ct. 1021, 84 L.Ed. 1368 (1940), that the Supreme Court

of the United States would not interfere with the rulings

of the Railroad Commission of Texas and the regulatory

20

statutes of Texas even though the Railroad Commission

orders permitted drainage of oil and gas from under ad-

joining tracts, in the absence of waste. Also see Railroad

Commission of Texas v. Rowan & Nichols Oil Co., 311

U.S. 570, 61 S.Ct. 343 (1941).

The Circuit Court of Appeals, in its second opinion

(Petitioners’ Appendix 114-116), held that the exclusion

from the jury of two Texas Supreme Court decisions was

proper.

The market demand opinion of the Supreme Court of

Texas (Petitioners’ Appendix, pages 130 to 163) is the

result of an appeal from the granting of a motion for a

summary judgment which required the court to assume

the worst side of the case as to Woods and to assume

facts most favorable for Alcoa on drainage. Further, a

Petition for Writ of Certiorari was filed in the U. S.

Supreme Court by Alcoa to review that state court opinion

and was denied by the U. S. Supreme Court sub nom,

Aluminum Co. of America v. Woods Exploration, Inc.,

385 U.S. 991, 87 S.Ct. 602, 17 L.Ed.(2) 450 (1955).

The Court’s attention is called to the fact that the Supreme

Court of Texas specifically held (page 133 of Petitioners’

Appendix) :

“Waste is not involved, and there is nothing in the

record to suggest that any gas produced from the

Appling Field has been devoted to unlawful uses.”

When Woods became interested in the Appling Field,

he was aware that the Railroad Commission had set the

1/3—2/3 formula; and, on that basis, Woods Explora-

tion and its investors invested considerable sums of money

to drill for the gas, always projecting the probable return

ro we ETE PST SE LA BELT IER DO I TM OT

rE

21

under the applicable rules existing in the field. In Railroad

Commission v. Alcoa, 380 S.W.2d 599 (1964, Petition-

ers’ Appendix, pages 169 to 172) the Supreme Court of

Texas took cognizance of the fact that Alcoa aided in

establishing this very rule, and acquiesced in it for a long

time without complaint. The Texas Supreme Court held

that, after such a long time, it would be inequitable to

overturn the formula where operators had drilled and

completed wells at great expense in reliance on such for-

mula and where contracts had become} stabilized.

The trial judge, in the second trial, on motion for new

trial filed by the Petitioners, overruled their point on the

introduction of evidence of drainage. (See 3[b] and

[d] Petitioners’ Appendix, pgs. 104-105).

VI.

THE TRIAL COURT CORRECTLY GAVE IN-

STRUCTION NO. 32 TO THE JURY, BECAUSE

IT FOLLOWED THE HOLDING OF THE U. S.

SUPREME COURT AND RELATED TO THE

QUESTION OF SOUTHEASTERN’S PREPAR-

EDNESS TO GO FORWARD WITH THE CON-

STRUCTION OF THE PROPOSED EXTRAC-

TION PLANT.

The trial court correctly gave Instruction No. 32, be-

cause it followed the holding of the U. S. Supreme Court

decision in California Motor Transport, Inc. v. Trucking

Unlimited, 44 U.S. 508 (1972); and the Court of Ap-

peals, in its second opinion (Petitioners’ Appendix 122-

123) which held that the Instruction was clearly related

to the question of Southeastern’s preparedness to go for-

ward with the construction of the extraction plant and to

22

the question of the relation of the overall monopolization

finding in the first trial to the damages resulting from

frustrating of the building of Respondent’s extraction

plant.

The trial court, in overruling Petitioners’ motion for

new trial, clearly set out why Instruction No. 32 was

proper and supported by the evidence (3(e) page 105,

Petitioners’ Appendix).

Such instruction was proper because it related to South-

eastern’s contention of an overall and general intent

on the part of Petitioners to destroy Southeastern’s busi-

ness or property in the Appling Field, and did no more

than inform the jury that if the action taken by the Peti-

tioners before the Railroad Commission and the courts

was pursuant to a combination and for the purpose of

harassing and deterring Southeastern, such could be con-

sidered in connection with whether or not Petitioners had

an intent to frustrate and thwart construction of the ex-

traction plant.

Nor did the court’s instruction in anyway unfairly

characterize the Normanna and Claire Benz-Stoddard

cases, nor instruct the jury that they should conclude that

these lawsuits constituted violations of the antitrust laws.

In fact, the Trial Court in Instruction No. 11 told the

jury that “The said Defendants, of. course, had a right

to take such actions.” Circuit Court No. 73-1633, App.

85 and 86). This one sentence in Instruction No. 11

nullifies Petitioners’ contention that Instruction No. 32

was erroneous.

Petitioners next contend that Instruction No. 32 was

erroneous because in the first case Judge Singleton had

determined that the Petitioners’ motive for filing the law-

ype nee ON OL ET ee eee ae 3s ne ads SCO IE GOON GES, Bag AD AT ye MLN

23

Suits and taking action before the Railroad Commission

was not illegal in that there was “probable cause” for such

action. Petitioners contend these conclusions of Judge

Singleton were binding on Justice Clark in the second

trial as the law of the case. All the opinion of Judge

Singleton in 284 F.Supp. 582 held was that the Respond-

ents were not entitled to recover as damages “any loss

or expense which they might have suffered as a result of

any litigation identified in this opinion concerning the

validity of Railroad Commission rules, regulation, or or-

ders.” (Page 595). Southeastern has made no claim in this

suit to recover as damages any legal costs, court costs, or at-

torneys’ fees in connection with the matters referred to in

Judge Singleton’s opinion. The fact that Petitioners might

have probable cause to believe that the challenged Com-

mission orders were invalid in no way immunizes them to

combine and conspire in a course of conduct the pur-

pose of which was to drive Southeastern out of business.

The Court of Appeals, in reversing Judge Singleton’s var-

ious actions and decisions, at no point enunciated any

principles of law regarding action taken by the Peti-

tioners before the Railroad Commission jn seeking a

change in orders or new orders or in the institution and

prosecution of litigation. A matter not decided by an Ap-

pellate Court does not become the laws of the case. Hart-

ford Life Ins. Co. v. Blincoe, 255 U.S. 129, 136 (1921)

and Mutual Life Insurance Co. of New York y. Hill, 193

U.S. 551; Miller's Mut. Fire Ins. Ass'n of Illinois v. Bell,

99 F.2d 289, 292 (8th Cir. 1938). Moreover, our own

Texas courts in Woods Exploration & Producing Co.,

Inc. v. Aluminum Company of America, et al, 382 S.W.

2d 343 n.r.e., cognizant of all of the Texas decisions re-

lied on by Petitioners as proof that it could not have

monopolized the production and transportation of gas in

24

the Appling Field, nevertheless held that Respondents did

have a cause of action under the antitrust laws for misuse

of Railroad Commission procedures and the courts.

United States v. First National Bank and Trust Co. of

Lexington, 263 F.Supp. 268 (E.D. Ky. 1967) cited on

page 34 of Petitioners’ petition is not applicable in this

case. In that case there was a full trial on the merits. Not

so in 284 F.Supp. 582. Petitioners also cite Smith v.

Pittsburgh Gauge and Supply Co., 323 F.Supp. 256 (W.D.

Pa. 1971). If Petitioners had gone a step further and read

the opinion of the Third Circuit Court of Appeals (464

F.2d 870 [1972]) affirming the District Court they would

have discovered that the Smith case does not stand for

the proposition for which Petitioners cite it but on the

contrary supports Respondents in their contention that

Judge Singleton’s opinion in 284 F.Supp. 582 (1968)

on these “probable cause” matters was in no way pro-

hibitive of Justice Clark submitting Instruction No. 32

to the jury in the second trial.

D. C. Federation of Civil Assoc. v. Volpe, 459 F.2d

1231 (D.C. Cir. 1972), cited by Petitioners, also lends

no support to their contentions. There the Court of Ap-

peals simply held that their decision on a previous ap-

peal of the same case which required a remand to the

District Court for hearing, when no Supreme Court re-

view was sought, became the law of the case.

CONCLUSION

As we read Rule 19 of this Court, the only possible

“consideration” there listed which could be urged as

cause for the Court to exercise its “sound judicial dis-

cretion” and grant a review herein on certiorari is to be

found in the last part of 1(b):

25

“Where a Court of Appeals . . . has so far departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by

a lower court, as to call for an exercise of this

Court’s power of supervision.”

It seems to us that the Fifth Circuit Court of Appeals

in its two opinions (Petitioners’ Appendix 38-96 and 107-

129), taking into account the memorandum opinion of

retired Justice Clark (Petitioners’ Appendix 97-106),

amply demonstrate that this litigation has been handled, inso-

far as Petitioners are concerned, well within the “accepted

and usual course of judicial proceedings” and well within

the intent and purpose of the antitrust laws of the United

States. The Petitioners certainly fail to disclose any sub-

stantive reason for prolonging this litigation beyond its

present age of thirteen (13) years. Respondents respect-

fully urge the proposition that the opinions of the Court

of Appeals at long last lay this litigation to rest on solid

legal principles and recognized authorities as expressed

in the decisions of this Honorable Court. It is, therefore

respectfully prayed that Petitioners’ Application for Writ

of Certiorari be denied.

26

espectfully submitted,

al Life Bldg.

Houston, Texas 77002

(713) 224-6033

HERMAN WRIGHT

MANDEL & WRIGHT

1901 First National Life Bldg.

Houston, Texas 77002

(713) 225-6033

Tom F. CoLeMAN, Jr.

1201 First National Life Bldg.

Houston, Texas 77002

Attorneys for Respondents,

Woops EXPLORATION & PRODUC-

ING COMPANY, INC., STANLEY

C. Woops, SOUTHEASTERN PIPE-

LINE COMPANY

CERTIFICATE OF SERVICE

This is to certify that a true god correct copy of the

foregoing was served on the 2*” “day of June, 1975, on

attorneys for Petitioners, pursuant to Rule 33(1) of this

Court, by placing three (3) copies of the foregoing brief

in opposition to Petitioners’ Petition for Writ of Certiorari

in the U. S. Mail, first class, postage prepaid, addressed

to counsel of record for Petitioners, at his post office ad-

dress of record, thus serving all parties required to be

served.

EVERT J ABLE

DOT:

PRM LE OBA

SIRES MAE EIEN ate ae