Reply Brief — Standard Oil Co. of Ind. v. Missouri

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IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1911.

No. 47.

STANDARD OIL COMPANY OF INDIANA,

PLAINTIFF IN ERROR,

Vs.

STATE OF MISSOURI, DEFENDANT IN ERROR.

No. 48.

REPUBLIC OTL COMPANY, PLatntIrr

IN HRROR,

v8.

STATE OF MISSOURI, DEFENDANT IN Error.

REPLY TO SUPPLEMENTAL BRIEF OF

DEFENDANT IN ERROR.

Upon November 8, 1911, just as these cases

were reached for argument, the State filed a sup-

plemental brief for the first time suggesting that

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there should be a dismissal because there was no

summons to or severance of the Waters-Pierce Oil

Company. As to this it is submitted:

1. The present record does not show whether

there was or was not any such severance. The

writs of error were allowed and citations issued to

both the State and the Waters-Pierce Company

and accepted by (Record, 1,2) the Attorney Gen-

eral. The latter, upon September 21, 1909, signed

a stipulation (Record, 484, 485) agreeing to the

substitution of himself as informant, in lieu of the

former Attorney General, and for the omission in

printing of a part of the record. In addition

there was filed herein, upon May 24, 1909, the stip-

ulation attached hereto.

For some reason the clerk failed to print this

document. Here was a complete and effectual ap-

pearance of the Waters-Pierce Company. — It

therefore knew of the writs of error and has never

taken, nor intended to take, any steps in joining

in the assignments of error. As a matter of fact

it did actually sign a waiver of summons and con-

sent to a severance in this language:

**Not desiring to join in either writ of

error sued out by the Standard Oil Com-

pany of Indiana or the Republic Oil Com-

pany, service of the citation on behalf of

each of said companies, upon writ of error

to the Supreme Court of the United States,

is hereby accepted this 17th day of Mareh,

1909.”’

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This document seems to have been lost, and if

it ean be found and certified here will be subse-

quently printed.

Considering the time when the objection was

first made, the court should now presume that

when separate writs were allowed below there was

a sufficient summons and severance. Moreover,

the Waters-Pierce Company, having appeared

herein, knew of the writs of error and has neg-

lected and refused to join in the assignments. In

addition to this, if permitted, that company will

now file a waiver in any form which would meet

the approval of the court. This should fully an-

swer the point made. (Masterson rs. Howard, 10

Wal., 416.)

2. If a judgment be joint. a severance is neces-

sary. The only reasons ever given for this rule

are that the other party is entitled to know

Whether an appeal or writ of error will be pros-

ecuted and that the appellate court shall not be

vexed with successive appeals from the same judg-

nent. (Williams rs. Bank, 11 Wheat., 441; Ow-

Ings rs. Nincannon, 7 Pet., 399; Wilson «s. Life

Insurance Co., 12 Pet., 140; Masterson vs. How-

ard, 10 Wal., 416: Hardee vs. Wilson, 146 U. S.,

179.)

Here there could not be successive appeals, for

the judgment (Reeord, 337) of December 23, 1908,

became final (Record, 459) on Mareh 9, 1909.

The Waters-Pierce Company could not now sue

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out a writ of error, because the time therefor has

expired. Moreover, it has fully performed and

accepted the judgment below and has no interest

whatsoever in the cases of plaintiffs in error. The

State could not be better informed as to the posi-

tion assumed by that company.

There is nothing technical about a severance or

summons. If the party knows of the proceeding

and has had an opportunity to join in presenting

the errors complained of, it is sufficient. (Master-

son vs. Howard, 10 Wal., 416; O’Dowd vs. Russell,

14 Wal., 402.)

Mere failure to act after receiving notice of an

intention of one party to appeal is enough.

(O’Dowd vs. Russell, 14 Wal., 402.)

If, as in this case, the judgment be severable or

so separate and distinct as not to affect the rights

of others, the proceedings may be prosecuted with-

out summons or severance. (German vs. Mason,

12 Wal., 259; Brewster vs. Wakefield, 22 How.,

118; City National Bank vs. Hunter, 129 U. S.,

597; Gulfillan vs. MeKee, 159 U. S., 303; Cox vs.

U.S., 6 Pet., 172; Todd vs. Daniel, 16 Pet., 521;

Haurick vs. Patrick, 119 U. S., 156; Milner vs.

Meek, 95 U. S8., 252; Forgay vs. Conrad, 6 How.,

201.)

Likewise, if one jointly interested has parted

with his title. (Mercantile Trust Company vs.

Kanawha, ete., R. Co., 58 Fed. Rep., 6; Aiken vs.

Smith, 54 Fed. Rep., 894.)

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So one defeated lien claimant can maintain the

proceeding without joining others likewise de-

feated. (Milner vs. Meek, 95 U. 8., 252.)

Tested by these rules, the judgments against

these plaintiffs in error are separate and distinct

and nothing in which the Waters-Pierce Company

has any interest.

Respectfully submitted,

ROBERT W. STEWART,

ALFRED D. EDDY,

FRANK HAGERMAN,

Attorneys for Plaintiffs in Error.

padi GORA RAE REE

Beier cemasacins Sater

ee PILE I | POSES 2 a

IN THE SUPREME COURT OF THE

UNITED STATES.

Ocroser Term, 1908.

Sranparp Or Company (or Inpiana), Plaintiff

in Error,

vs.

Stave oF Missouri on the Information of TLERBERr

S. Hapiey, Attorney General, ef al, Defend-

aunts in Error.

Rervsiic Om Company, Plaintiff in Error,

vs.

STATE oF Missouri on the Information of ILERBERT

S. Hapiey, Attorney General, cf al., Defend-

ants in Error.

Stipulation.

Separate writs of error were sued out in above-

entitled cause, although in the Supreme Court of

Missouri there was but one case against both the

plaintiffs in error and one entry of a judgment,

and the testimony was taken in one ease.

It is therefore agreed that but one transeript

need be filed and printed in this court. The eases

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may be argued and submitted together and upon

the same briefs.

Dated May 18, 1909.

(Signed ) Exvuiotr W. Magor,

Attorney General.

(Signed ) ALFrep D. Eppy,

(Signed ) FraNK HAGERMAN,

Attorneys for Standard Oil Com-

pany (of Indiana) and Republic

Oil Company.

(Signed ) H. S. Priest,

Attorney for Waters-Pierce

Oil Company.

Endorsed: File Nos. 21,665 and 21,666. Su-

preme Court U. S., October Term, 1908. Term

Nos. 869 and 870. Standard Oil Company of In-

diana, plaintiff in error, rs. State of Missouri on

information of H. S. Hadley, Attorney General.

Republic Oil Company, plaintiff in error, vs. State

of Missouri on information of H. S. Hadley, At-

torney General. Stipulation that cases may be

heard together. Filed May 24, 1909.

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