Petition for Writ of Certiorari — Yazoo & Mississippi Valley R. Co. v. Clarksdale

¥

oe , MY

| vy _| JUN 26 2919

AL

_ iy ofl JAMES D, MAHER

—_— _. A 2 x OLe

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1918.

THE YAZOO & MISSISSIPPI VAL-

LEY RAILROAD COMPANY, ET AL.,

Petitioners,

vs.

CITY OF CLARKSDALE,

Respondent.

PETITION FOR CERTIORARI TO BE AD-

DRESSED TO THE SUPREME COURT

OF MISSISSIPPI, AND BRIEF IN SUP-

PORT THEREOF.

H. D. MINOR,

CHAS. N. BURCH,

Counsel for Petitioners.

BLEWETT LEE,

Of Counsel.

INDEX.

Page

Act of Congress of March ee 10, 13, 14

Appendix 21

Brief ........ 13-19

Case Stated 2-9

City Acting in Non-governmental Capacity 19

Clean Hands 10, 16

Collateral Attack .. 9,15

Equitable Defenses 7

Estoppel of Complainant 10, 16-17

Federal Question Presented. : 13

ot Fa, Vane... 4

Judgment Valid 0.

Levy of Exeeution

Notice to Counsel. 20

Place of Execution Sale. 5

Prayer 11

Prefatory Statement. = 1

Question in the Case... 2

- Return on fe aa 5-6

Specification of Errors 9-11

Title of Complainant. 6, 17-18

AUTHORITIES.

Page

Adams vy. Railroad, 76 Miss. 714 19

Bank v. Evans, 10 8, & ) ae 17

Bornemann vy. Norris, 47 Fed. Rep. 488.............. 10, 16

Boyle v. Zachrie, 6 Pet, 659... 14

Brittania Min. Co., in re, 203 Fed. 452.00

Clements v. Berry, 11 How. 398 13

Clark v. Glos, 180 HL. 568.000! 17

Cole v. Bridges, 45 Miss. 257... 15

Conley v, Redwine (Ga.), 35 8. BE. Rep. 92.......... 15

Cooke v, Avery, 148 U.S. 390... 13

Cunningham vy, Cassidy, 17 N. Y. 282... 16

Doe v. Jackson, 51 Ala. ca (el cS ae 15

Fallon vy. Worthington, 13 Colo. 569... 17

Freeman, Void Jud. Sales. 17

Galloway v, Finley, 12 Pet. 264.0002” 18

Gen. Electric Co. v. Hurd, 171 Fed. Rep. 984... 14

Gregory vy, MeVeigh, 23 Wall. 294.0000 13

Griffith v. Bogert, 18 How. ie 8: 16

Hand v. Grant, 10S, & M. (Miss.) $617. 17

Harrington vy. O’Reilly, 9S. & M. 218.00 16

Hinds Co. v. Railroad, 85 es We 19

Jones y, Rogers, 85 Miss, 803.0000 17

Keystone Collieries y. Mudge, 256 Pa. 130... 15

Kirk v. Hamilton, 102 U.S. 68.0000 16

Kleber’s Void Jud. & Ex’n Sales, Sect. 474,476 17

Lane v. MeLean, 98, & M. (Miss.) 287... 17

Lansburgh v. McCormick, 224 Fed. Rep. 879.14, 15

MeBride v. Gwynne, 33 Fed. i en 15

Mississippi Code of 1892.00 5

Nat. Nickel Co. v. Nevada, 112 Fed. Rep. 44,48 16

Nevada Syndicate v, Nickel Co., 103 Fed. 396... 15

Piano Co. y, Hennington, 98 Miss. 51... 14

Pickett v. Bank, 5S. & M. (Miss.) 170.000 | 17

Quarles v. Hearn, 70 Miss. 895... 16

Revised Code of Miss. EL) Sines Aire tn 4, 14

Rounsaville v. Hazen, 33 Kan. A aime 15

Re: Brittania Mining Co., 203 Fed. Rep. 452... 14

Seaman v. Ins. Co, (C. C. A.), 86 Fed. Rep. 493 16

Seymour V. Association, 116 Gar, 280... cnc

Shepherd y. Delph (lSy.), 58 8, W. 991................

Street v. Larkin, 77 Ala. S80.

Tullock v. Mulvane, 184 U.S. bitbaage lie = NEEM

U.S. v. Lane, 39 Sup. Ct. Rep. 294. oon

U.S. Comp. Stat. (Ann.) 1916, See. |S Sees

Wheaton v. Sexton, 4 Wheat. ch ncdeieeent

jee . . Subthoetuetuey

Me Re PAO OT IY 497

IN THE SUPREME COURT OF

THE UNITED STATES.

OQcroper Term, 1918.

THE YAZOO & MISSISSIPPI] VALLEY

RAILROAD COMPANY, ET AL., Petitioners,

vs,

CITY Of CLARKSDALE, Respondent.

PETITION FOR CERTIORARL TO BE AD-

DRESSED TO THE SUPREME COURT OF

MISSISSIPPI, AND BRIEF IN

SUPPORT THEREOF.

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United

States:

(This case is already in this Court by a writ of

error allowed by the Chief Justice of the Supreme

Court of Mississippi, and this petition for certiorari

is filed out of an abundance of caution and in order

that all questions in the case may be brought to the

attention of this Court. Page references are to the

manuseript copy of record. The original petition

contains genuine signatures. )

2

Your petitioners, The Yazoo & Mississippi Valley

Railroad Company (hereafter called the Railroad

Company) and the Mississippi Valley Company

(hereafter called the Valley Company) and D. A.

Seott and E. M. Yerger, sureties on the appeal bond,

respectfully show that this litigation was com-

meneed by original bill filed by the City of Clarks-

dale (hereinafter called the City) in the Chancery

Court of Coahoma County, Mississippi, against said

Railroad Company. The bill was afterwards amend-

ed so as to make the Valley Company a defendant;

whereupon arose this

QUESTION IN THE CASK,

The validity of an execution sale of corporate

stock by the marshal under an execution issuing

from the United States Circuit Court pursuant to

a valid judgment by that court against the City.

Also the right of the City to make a collateral attack

on that sale—particularly after a delay and inaction,

with knowledge of the facts, for over nineteen years.

THE CASE STATED.

The original bill (pp. 1-19) was filed against the

Railroad Company only. It averred that the City

was and had been since April 29, 1801, the legal

owner of 250 shares of the capital stock of the

Louisville, New Orleans & Texas Railway Company,

a corporation of Mississippi, of the par value of

$100.00 per share, evidenced by certificate No, 147,

dated April 21, 1891; that this certificate had been

lost or mislaid and could not be found; that the

said L. N.O.& T. Ry. Co. had been conse! sted with

said Railroad Company (the Y. & M. V.) and that

said stock was very valuable; that the City had ap-

plied to the Railroad Company for recognition of

its rights, which had been declined. There was a

o- ihe tet ae se *

3

prayer for special and general relief. The bill made

no attack upon the execution sale presently to be

mentioned. It did not refer in any way to that sale

nor make the purchaser at the sale a party.

The Railroad Company filed an answer (pp. 22-

51) admitting that the stock had been issued to the

City, the consideration therefor being $25,000 of the

6 per cent bonds of the City, but that the Valley

Company was now the owner of the stock by virtue

of a purchase in 1904 in good faith from the Pacifie

Improvement Company, which had purchased the

stock on December 6, 1897, at an execution sale by

the United States Marshal pursuant to a judgment

against the City rendered by the United States Cir-

cuit Court for the Northern District of Mississippi

at Oxford, Miss. The Valley Company had sur-

rendered the original certificate (representing stock

in the L. N. O. & T. Ry. Co.) and secured, in lieu, a

certificate for an equal amount of the stock of the

Railroad Company (the Y. & M. V.). Various other

defenses were set up by the Railroad Company, in-

cluding laches because no step was taken by the City

from Dec. 6, 1897 (the date of the execution sale),

until March, 1917, when the present bill was filed;

estoppel because of inaction, silence and delay and

a failure to exercise any remedy in the court issuing

the execution; absence of clean hands; and the stat-

ute of limitations. This answer was made a cross

bill (p. 41), but at the hearing any relief under the

cross bill was waived (p. 168).

The City filed an answer to the Railroad Com-

pany’s cross bill (pp. 53-64) and its only reference

to the execution and sale was to deny in formal

terms the allegations of the answer and cross bill

in respect thereto (p. 97). However, by proper

pleading the City brought in the Valley Company as

ee ee a ae

4

a co-defendant (p. 63) and the latter company there.

upon filed an answer setting forth the same facts

and defenses as the answer of the Railroad Com-

pany (pp. 65-70).

There was a decree by the Chancellor granting the

complaint full relief, ineluding an accounting (pp.

169-173), and this decree was affirmed without opin-

ion by the Supreme Court of Mississippi Mareh 31,

1910 (p. 181), ST So, Rep, 178,

JUDGMENT AND FI, PA, VALID.

The City conceded, at the hearing, the validity

of the judgment under which the execution issued

(p. 89) and the formal regularity of the fi, fa, is not

denied,

LEVY OF EXECUTION,

The execution was levied by the marshal by seiz-

ing the certificate No, 147, representing the 250

shares of stock in question which has been issued

to the City, and by notifying the home office of the

corporation (pp. 93, 99), The only question made

by the City in this connection was (by argument and

not by pleading) that a certificate of stock, being

mere indicium of ownership, was not subject to levy.

The Mississippi Code of 1870 (which was the Code

in effect when the Conformity Act of Congress of

1872 was passed) authorized such a levy,

Rev, Codi of Miss. (1871 Be See, 849,

For the convenience of the Court, this seetion is

set out in full, afra, p. 20.

The Mississippi Code of 1892, which was the Code

in effect af the time of the execution sale, bu whieh

had never been adopted by the U.S. Cireuit Court,

5

provided for the levy of an execution upon corporate

stock by the officer’s going to the office or princi-

pal place of business of the corporation and there

declaring that he attaches or levies upon the stock

or shares of interest of the defendant therein at the

snit of the plaintiff,

Mississippi Code of 1892, See. 3467.

PLACE OF EXECUTION SALE.

The principal, if not the sole, reliance of the City

is on the proposition (made in argument and not by

pleading) that the execution sale is void because

made at the wrong place, for that it was made at the

United States Court House in Oxford, Miss., where-

as the State statute provided that execution sales

must be made ‘tat the court house of the county.’?

RETURNS ON EXECUTIONS,

The return of the marshal showed his proceedings

under the execution and was as follows (p. U8);

Executed the within writ this the 13th day

of August, 1897, by levying on and taking into

MY possession one Certificate of steck, the prop-

erty of said defendant in the Louisville, New

Orleans and Texas R. R.. Number 147, for 250

shares, issued to the town or city of Clarksdale,

Miss, Further executed on this the 6th day of

December, 1897, at 12 o'clock meridian by sell.

ing said certificate of Stock No. 147 after due

advertisement by posting notices in three public

places for the period of 10 days as provided by

law, to the highest and best bidder for cash, be-

fore the Western door of the United States

Court House, and post office building in the

town of Oxford, Miss., at which sale the Pacific

Improvement Co, became the highest and best

RPS OOS FREY Ae Wee SPSS TS

ad

6

bidder, at and for the price of $100.00 and at

the same time and place | executed the writ of

vendi exponas issued to me in this cause and

offered for sale all the interest which the City

or Town of Clarksdale (Continuation of Mar-

shal’s return) had in the Capital Stock of the

Louisville, New Orleans & Texas Railway Co.

or in the Yazoo & Mississippi Valley Railroad

Company, offering said interest at the same

time with said certifieate of stock to the said

Pacific Investment for the said sum of $100.00,

that being the highest and best bid offered for

same, Dee. 6th, 1807."

Record, p. 98.

A duplicate fi. fa. addressed to the marshal for

the Southern Distriet of Mississippi had been issued

(p. 96), on which this return was (p. 09):

‘Received at Jackson, August 13, 1897, and

executed same day by going to the office of the

Yazoo & Mississippi Valley Railroad Company

in Jackson and there declaring that I attached

as levied upon the stock, shares and interests of

defendant therein; further by delivering to

George Gordin, Agent of the said Yazoo & Mis-

sissippi Valley Railroad Company, a true copy

of this writ, and demanding of him, by instru

ment of writing delivered to him, a statement

in writing under oath of the amount of the de

fendant’s stock, the number of its shares, and

extent of its interest in said railroad company."’

(At that time the consolidation of the L. N. OL &

T. with the Y. & M. V. had been in effeet for some

years).

7

KQUITABLE DEFENSES.

The origin of the whole matter was that, when

the L. N.O. & 'T, Ry. Co, was about to build its Tal-

lahatehie Branch, the City, in order to have that line

touch its horders, agreed te take $25,000 of the

L. N. O. & T. Ry. Co. stock and pay therefor with

$25,000 of its 6 per cent bonds. The line was built

in wecordance with this agreement, the bonds were

issued and the exchange of bonds for stock took

place in due course, These bonds passed into the

hands of the Paeifie Improvement Co. and R. ri

Wilson & Co. The City promptly defaulted in the

payvinent of interest and in 1894 the bondholders

brought suit against the City in the U.S. Cireuit

Court at Oxford, Miss., to recover on past due inter.

est coupons, After a prolonged litigation, the case

twice going to the Circuit Court of Appeals (74 Fed.

Rep. S28: 81 bed, Rep. 829), there was a final judg-

ment against the City and in faver of the Pacifie

Improvement Co, for #3,008.13 Cp. 89),

In August, 1897, the judgment not being paid,

the plaintiff, Pacific Improvement Co. took out an

original fi, fa. (p. 90), whieh was levied on the eerti-

fieate (No. 147) whieh represented the 250 shares of

stock issued to the City, At the same time, a dupli-

cate fi, fa. issued to the marshal of the Southern

District of Mississippi (p. 96). Under these exeeu-

tious, the certifieate of stock and all the interest of

the City in the L. NL O.& T Ry. Co. was sold by the

nhuivshal at public vendue at the western door of the

United States Court House (p. 93), where it was

hought in by the Pacific Improvement Co, plaintiff

in the execution, for FLOO.O0, (Tf ippears that, at

that time, the stock was regarded as of practically

ho Value—p, 122-5), The marshal thereupon de-

8

livered this certificate to the Pacific Improvement

Co., indorsing on the back thereof a formal trans-

fer to that company (p. 77).

Shortly after the judgment was rendered in June,

1897, the officers of the City, apprehending a man-

damus, resigned, and the municipal organization was

completely disrupted (pp. 117-18). At a mass meeting

of citizens a committee of three was appointed to go

to New York and settle, if practicable, the whole

matter with the bondholders (pp. 117 et seq.). As

a result, an agreement was reached in New York by

which the bondholders transferred the bonds and

also the judgment to the Planters Bank of Clarks-

dale in consideration of the cash payment of $25,000

(pp. 160-164). Immediately, the governor appointed

new officials for the City and the municipal organi-

zation was restored. At the first council meeting,

the action of the committee in New York was rati-

fied and the City made an agreement by which it

was arranged to reimburse the Planters Bank for

the money it had expended (pp. 107-114). All of this

occurred in the latter part of June and the early part

of July, 1898 (pp. 113-114). Mr. J. W. Cutrer, one

of the committee mentioned, and a lawyer of recog-

nized ability (p. 119), represented the City in the

litigation heretofore referred to, was elected City

Attorney (a public office) upon the reorganization

in June, 1898, and remained such for many years

thereafter (p. 119). He, of course, was cognizant of

all that had occurred. He was never called as a wit-

ness by the City at the trial of the present case.

As a result of this adjustment, the bondholders

lost, and the City escaped the payment of, over

$13,000 of accrued interest.

From the time of the execution sale in December,

1897, nothing whatever was done by the City until

es Prd le rete nn ers ae! a F Sains NR So hnal O ERIN a aE sie . 0 Mats Nae ae Ta peta. tcc a |

cj

) i

the filing of the present bill in March, 1917, except ‘

that two or three former Mayors of the City testi- f

fied on the hearing of this ease that they made in-

quiries about this stock (pp. 130-136). There is no

claim that either the Railroad Company or the Val-

ley Company were ever approached on the subject

until about the time the bill was filed in 1917.

During that interval the Valley Company pur-

chased the stock in question from the Pacifie In-

vestment Co. in 1904, surrendering the certificate

No. 147 (which represented stock in the L. N. O. &

T. Ry. Co.) and secured instead a certificate for an

equal amount of stock in the Railroad Company,

with which the L. N. O. & T. Ry. Co. had been con-

solidated in 1892, shortly after the original issuance

of the stock (p. 105).

In that interval, Mr. W. A. Perey, who represented

the bondholders in the litigation in the Cireuit Court ;

of the United States at Oxford, died, his death oe-

curring about 1914 (p. 120).

There was no effort by the City to show that it P

had attempted to pursue any remedy whatever in the :

Court from which the execution issued.

PREIS EES 1. eont

SPECIFICATION OF ERRORS.

Your petitioners now aver the following plain

errors were committed by the Mississippi Supreme

Court in its final decree of this case:

1. In adjudging that the execution sale under

Which the Valley Company’s vendor (the Pacifie Im-

provement Co.) acquired title to the stock in ques-

tion, was void and, therefore, subject to collateral

attack, in refusing to dismiss the bill; ane ‘n adjudg-

ing costs against petitioners,

POLS EL SOLE YAS

Sate et .

RANA MR AI SH AGM hi ate SobtoSA

ae

10

2. In adjudging that the applicable law respect-

ing said execution sale was not the Act of Congress

of March 3, 1893 (27 Stat. L. 751) under which a

sale at the Federal Court House door instead of

the county court house door is an_ irregularity

merely, but that the controlling statute was the Mis-

sissippi statute under which an execution sale at a

place other than the county court house is void.

3. In refusing to adjudge that the failure of the

City to exercise its remedies in the court issuing said

execution (one of which remedies had not long be-

fore been pointed out by Mr. Justice Lamar in Bor-

nemann v. Norris, 47 Fed. Rep. 488) was a bar to

the City’s rights to maintain this bill filed nearly

20 vears after the execution sale.

4. In adjudging that the City (the complainant)

was not estopped by laches and by silence, although

the execution sale occurred December 6, 1897, and

no step was taken by the City to assert its right

until the filing of the original bill herein in March,

1917—nearly twenty vears later, during a large part

of which time the official city attorney was a lawyer

of ability, who had represented the city in the orig-

inal litigation which had resulted in the exeeution

and therefore knew all the faets.

5. In adjudging that the City was not precluded

from relief in a court of equity by the maxim of

“clean hands,’’? when the facts were that the City

had gotten this stock by issuing $25,000 of its bonds,

had promptly failed to pay the interest thereon and,

after a judgment establishing its liability, had sought

to escape payments by dissolving its corporate or-

ganization—as the result of all of which it practi-

eally forced the bondholders to a settlement under

which they lost, and the City eseaped the payment

of, over $13,000 of unpaid past due interest.

— ICAP TAS MRO NP es CSS LY NDAD SA EOE Lh ete K ig ALE ETON SO tot i MS iy LAS ay

11

6. In adjudging that the City made sufficient

proof of its title to the stock in question to enable

it to maintain this suit, when, in fact, a serious doubt

existed as to its title. For when the committee rep-

resenting the citizens of Clarksdale went to New

York to meet the bondholders, with a view to set-

tlement, at least one of the committee, Mr. Cutrer,

was thoroughly cognizant of all the facts and knew

that the Pacifie Improvement Co. claimed and ac-

tually held the stock by virtue of the execution sale.

In the settlement reached (which was promptly rati-

fied and adopted by the City—p. 108 et seq.), noth-

ing whatever was said about the stock and the City

allowed, without protest, the Pacific Improvement

Co. to retain the stock and made no complaint until

nineteen years later, when this bill was filed. All

this raises a fair presumption that all parties in-

tended that the Pacifie Improvement Co. should re-

tain the stock and that the City waived any claim

it may have had—thus creating such a doubt with

respect to the City’s title to the stock as will pre-

clude it from maintaining its bill.

PRAYER.

Your petitioners refer to the certified copy of

the record and all the proceedings in this cause now

on file in this Court under the writ of error already

sued out from this court to the Supreme Court of

Mississippi in this cause, and pray that a writ of

certiorari be issued out of and under the seal of this

court directed to the Supreme Court of the State

of Mississippi and the judges thereof, commanding

the said court to certify and send to this court a

full and complete transcript of the record and all

proceedings of said Mississippi Supreme Court in

this cause entitled “The Yazoo & Mississippi Valley

Railroad Company and Mississippi Valley Company

v. City of Clarksdale,’ and being No. 20542 on the

A

er epnarer rae id

EMEP TENE yee

—

a

i)

DOLL LOT ERA PCL EDEL INN SSSI DB Ae AE DE OO! BME

docket of said Mississippi Supreme Court, to the

end that this cause may be reviewed and determined

by this court. And your petitioners further pray

that the record and proceedings already on file in

this court, under the writ of error heretofore

granted, may be taken as a return to said writ of

certiorari, and that your petitioners may have such

other and further remedies and relief in the premises

as to this Court may seem appropriate and in con-

formity with law, and that the decree of the Missis-

sippl! Supreme Court in this cause and every part

thereof be reversed by this Honorable Court and

remanded to the Supreme Court of Mississippi with

direction to dismiss the original bill herein.

And your petitioners will ever pray, ete.

H. D. MINOR,

CHAS. N. BURCH,

Solicitors for Petitioners.

BLEWETT LEE,

Of Counsel.

Hi. D. Minor, being duly sworn, says that he is one

of counsel for petitioners in the above cause, that

he prepared the toregoing petition and that the alle-

gations therein are true as he verily believes.

Ht. D. MINOR.

Subseribed and sworn to before me on this the

2nd day of June, A. D. 1919.

hh. C. TURNER, Notary Publie.

My commission expires Jan, 17, 1925.

I certify that in my opinion the foregoing petition

is well founded in law.

H. D. MINOR,

Solicitor for Petitioners.

13

BRIEF.

1. The case at bar presents a federal question for

that there is involved the validity and effect of an

execution sale made pursuant to a judgment of the

Circuit Court of the United States for the Northern

District of Mississippi under an execution issued by

that Court. There is also involved the application,

interpretation aid effect of the Act of Congress of

March 3, 1893 (27 Stat. L. 751). These federal ques-

tions were presented to the trial court and also in-

sisted upon in the Supreme Court of Mississippi.

Tullock v. Mulvane, 184 U. §. 497 ;

Cooke v. Avery, 148 U.S 390;

Clements v, Berry, 11 How, 398 ;

Gregory v, McVeigh, 23 Wall. 294;

Record, pp. 35-36, 69, 168, 176-180,

2. The judgment pursuant to which this exeey-

tion sale was made was concededly valid and was

rendered by a federal court (p. 89) and there is no

claim that the fi. fa. was irregular or invalid. On

the contrary, it affirmatively appears that the fi. fa.

and duplicate fi. fa. under which the execution sale

was made, are regular on their face.

Record, pp, 90, 96.

3. The right to levy an execution on this certifi-

cate of stock existed under the Mississippi Code of

1871 (the Code in effect when the federal conformity

act of 1872 was passed) and by virtue of the Act of

Congress (the Conformity Act) of June 1, 1872 (R.

S., Sec. 916). The Mississippi Code of 1892 is not

applicable because there is no proof that any Mis-

Sissippi statute subsequent to 1872 was adopted by

any “general rules’? of the federal court issuing the

execution or otherwise, The existence of such rules

has not been proven and cannot be presumed.

BAINES WETS

FHS Rape

Sea EE ES ay See Mee

14

Rev. Code of Miss. (1871), See. 849;

Boyle v. Zachrie, 6 Pet. 659;

Gen. Electric Co. v. Hurd, 171 Fed. Rep. 984.

4. The fact that the execution sale took place at

the door of the Federal Court house instead of the

door of the court house of the county—the latter be-

ing the place for execution sales under the Missis-

sippi statute—does not render the execution sale

void, for that the law governing the place of sale

under the federal execution is the Act of Congress

of March 3, 1898 (2 Stat. L. 751) and not the Mis-

sissippi statute, because that act of Congress con-

templates judicial sales and was designed to fix

a uniform rule for judicial sales under decrees or

judgments of federal courts. And an execution sale

is a judicial sale.

3.U. 8. Comp, Stat. (Ann.) 1916, See. 640-41;

Re Brittania Mining Co., 208 Fed. Rep. 452;

Piano Co. v. Hennington, 98 Miss. 51;

Seymour v. Association, 116 Ga, 285,

5. While the Act of Congress of March 38, 1893,

provides that judicial sales shall be made at the court

house of the county, the fact that this execution sale

was made at the front door of the federal court

house in the county does not render the execution

sale void but, at most, was an irregularity which

cannot be available to collateral attack. The stat-

utory requirement as to place of sale was directory

and not mandatory.

Lansburgh v. M’Cormick (C. C. A.), 224 Fed.

Rep, 879;

Street v. Larkin, 77 Ala. 580.

6. The claim of defendant in error that the ex-

ecution sale in question at which the vendor of the

present holders of the stock acquired title was void

15

because of a failure to advertise the sale as required

by statute, is not sound for that a failure to follow

strictly the statutory requirement as to advertise-

ment is a mere irregularity which would not be avail-

able on collateral attack. The provisions of the

statute in that respect are directory purely. Such

is the well established rule even in Mississippi.

Cole v. Bridges, 45 Miss. 257; ¥

Nevada Syndicate v. Nickel Co., 103 Fed. Rep.

396, affirmed 112 Fed. Rep. 44, 184 U.S.

700;

McBride v. Gwynne, 33 Fed. Rep., 202;

Rounsaville v, Hazen, 33 Kan. 71, 76;

Conley v. Redwine (Ga.), 35 §. E. Rep. 92;

Doe v. Jackson, 51 Ala. 514, 517.

7. The purchaser at an execution sale depends on

the judgment, the levy and the transfer of the stock

certificate to him by the marshal. ‘*All other ques-

tion are between the parties to the judgment and

the marshal.’

Wheaton v. Sexton, 4 Wheat. 503.

8. The original and amended bill in this cause is

a collateral attack on the execution sale in question,

the plaintiff in the execution and the purchaser at

that sale not being before the court and no direct

assault being made in any pleading upon the irregu-

larity of said sale. The irregularities in the execu-

tion sale are not available on collateral attack.

Lansburgh v. M’Cormick (C. C. A.), 224 Fed.

Rep. 879;

Rounsaville v. Hazen, 33 Kan. 71, 76;

Neystone Collieries v. Mudge, 256 Pa. 130;

1 Am. Law Rep. Ann, (1919) 1433.

ROT a RST Let Sr

5

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16

9. The execution sale in question being pursuant

to a judgment of the United States Cireuit Court,

the remedy of the defendant in the execution was by

a proceeding in that court, a remedy which has been

pointed out by Mr. Justice Lamar only a few years

before the sale (Bornemann vy. Norris, 47 Fed. Rep.

438). The failure of the defendant in error here

(the my penn in the execution) to pursue that rem-

edy or to exercise any other remedy in the federal

court within a reasonable time is and was a bar to

the present suit.

Bornemann v. Norris, 47 Fed. Rep. 488;

Seaman v. Ins. Co. (C. C. A.), 86 Fed. Rep.

493 ;

Nirk v. Hamilton, 102 U.S. 68;

Cunningham v. Cassidy, 17 N. Y. 282; -

Quarles v. Hearn, T0 Miss. 895.

10. Where the purchaser at the execution sale

fails to avail himself of the remedies in the court

issuing the execution or elsewhere, but remains sl-

lent, he will not be heard after a long lapse of time,

and after intervening rights have accrued, to aver

that the execution sale was void. In the case at bar

the execution sale occurred December 6, 1897. The

plaintiff in error, the Mississippi Valley Company,

purchased the stock in 1904 from the purchaser at

the execution sale. Nothing was done by the City,

defendant in the execution, until the filing of the

present bill in March, 1917—nearly 20 years after

the execution sale.

Record, pp. 19, 93, 134.

Griffith v. Bogert, 18 How, (U.S.) 198;

U.S. v. Lane, 39 Sup. Ct. Rep. 294;

Nat. Nickel Co. v. Nevada (C. C. A.), 112 Fed.

Rep. 44, 48.

Harrington v. O'Reilly, 9S. & M. 218.

17

11. An execution defendant who accepts any part

of the proceeds of the execution sale, either directly

or indirectly, (in this ease by eredit on the cost bill)

or in any other way acquiesces in the sale, is there-

by estopped from questioning the validity of spa

sale, and this is true whether the sale be void «

merely invalid for ‘‘it is a well-settled ieceadies

prine iple that a void judicial sale is an exedttion to

the rule that ‘a confirmation or ratification cannot

strengthen a void estate.’ ’’

_ OTLEY 2 PA Ry POL Oe:

Fallon v. Worthington, 13 Colo. 569;

I’reeman on Void Judicial Sales, see. 50;

Kleber’s Voil Jud. & Ex’n Sales, sees. 474,

476;

Clark v. Glos, 180 H., 568,

12. Where a sale is made under several execu-

tions, the sale is valid if good under any of them.

Pickett v. Bank, S. & M. (Miss.) 470;

Lane v. McLian, 9S. & M. (Miss.) 287;

Hand v, Grant, 10S. & M. (Miss.) 517; F

Shepherd v. Dolph, (Ky.) 58 8S. W. 99%, i

13. In order to maintain a bill of the character

here involved, complaint must show a perfect legal

or a perfect equitable title and failing to do so, the

bill must be dismissed without regard to whether

the title of the defendant be good or bad.

REPS ERM EERO EORLTE IETS

Jones v. Rogers, 85 Miss. 803; é

y ‘ ) ° or baa

Bank v, Evans, 10S. & M. (Miss.) 35. :

(a) Coneeding for the moment, and for the sake

of argument only, the City’s contentions as to the

invalidity of the execution sale, there clearly re-

mains a doubt whether the Pacific Improvement

Company’s right to retain the stock was impliedly

conceded and the City’s claim thereto waived by

Is

the settlement reached in New York by a committee,

and afterwards ratified by the City, under which

the bondholders lost over $13,000 of accrued interest,

due by the City, at which settlement the matter of

this stock was not mentioned, but the fact was that

the Pacifie Improvement Co, was then holding and

claiming the stock, which fact was then well known

to one of the committee (Mr. Cutrer), who had been

attorney for the City in the litigation resulting in

the execution and who was the City’s official attor-

ney for many years afterward,

Record, pp. 111-118, 119.

(b) The inaction of the City for nearly twenty

years after the execution sale, and after the settle-

ment referred to, during most of which time the

attorney who represented the City in the litigation

which resulted in the execution, was the official

city attorney, is explainable upon no other theory

than that it was understood by the parties that, by

the settlement mentioned, the City abandoned its

claim to the stock and thus created, at the least, a

serious doubt, as to complainant’s title.

Record, p. 119.

14.) The complainant (defendant in error) came

not with clean hands for that the City repudiated

its bonds which it had given for the stock, contested

for several years a suit on the bonds and, when

judgment was rendered for interest due thereon-

thus establishing the validity of the bonds—the City

disrupted its organization to avoid a mandamus,

By these means it foreed the bondholders to a

settlement by which they lost over $18,000 of ac.

crued interest. Under such circumstances complain-

ant will be repelled in a court of equity,

Record, p. 118,

Galloway v. Finley, 12 Pet, 264.

“na

— eee |

19

1D. In its ownership of this stoek the City was not

acting in a governmental capacity, but as an indi

vidual, This rule is well settled with respect to

Mississippi municipalities,

Adams v, Railroad, 76 Miss. 714;

Hinds Co, v. Railroad, 85 Miss. 631,

The City was therefore subject to the rules just

stated with respect to laches and estoppel,

We, therefore, respectfully submit that the ease

should be reversed and remanded to the Supreme

Court of Mississippi with directions to dismiss the

bill,

H. D. MINOR,

CHAS, N. BURCH,

For Petitioners.

BLEWETT LER,

Of Counsel.

En

20

IN THE SUPREME COURT OF THE UNITED

STATES.

Ocroner Term, 1919,

THE YAZOO & MISSISSIPPT VALLEY

RAILROAD COMPANY, BT AL., Petitioners.

vs.

CITY OF CLARKSDALE, Respondent.

IN RE: PETITION TO SUPREME COURT OF

THE UNITED STATES FOR WRIT OF

CERTIORARL IN ABOVE CASE,

To Messrs. Maynard & Fitzgerald,

Clarksdale, Miss.

Please take notice that on Monday, Qetober 6,

1919, at noon, or as soon thereafter as counsel may

be heard, the foregoing petition and brief will be

submitted to the Supreme Court of the United States

at its usual place for holding its session at the Capt-

tol at Washington, D. C., for its consideration and

action,

Ht. D. MINOR,

Attorney for Petitioners,

We acknowledge service of a copy of the forego

ing petition, brief, and notice, this June —, 11).

Attorneys for City ot Clarksdale.

w—

eee ee ee a ee ee eT

21

APPENDIX,

‘See, S49. Bank notes, bills, or evidences of debt,

circulating as money, or any share or interest in any

incorporated company, belonging to the defendant

in execution, may be taken and sold, by virtue of an

execution, in the same manner as goods and chat-

tels, or applied to the payment of the execution; and

the clerk, cashier, or other officer having the eus-

tody of the books of the company, shall, upon ex-

hibiting to him the writ of execution, be bound to give

to the officer having such writ, a certifieate of the

number of shares or amount of the interest held by

the defe ive oe in such company, and if he shall neg-

lect or refuse to do so, or if he shall wilfully give

a false certificate thereof, he shall be liable te the

plaintiff for double the amount of all damages oe-

casioned by such neglect or false certificates, to be

recovered in an action on the case against him. The

purchaser of such share or interest, at such sale,

shall become the owner thereof, in the same manner

as if such share or interest had been regularly

as

signed to him by the defendant.’

ig vise d Code ol Miss. (1871 iP See, S49,

Ss an eel ins

% 2

SEP 301919 ~

JAMES D, RAHSRY

2

‘Sea eel . v6! abe tam als Seaianeernanstantss

a Os Spee Cor TE

Filtt i

¥

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1919.

YAZOO & MISSISSIPPI VALLEY

RAILROAD COMPANY;

MISSISSIPPI VALLEY COMPANY;

D. A. SCOTT, and

E. M. YERGER, Plaintiffs in Error.

vs.

THE CITY OF CLARKSDALE, Respondent.

MOTION TO DISMISS THE PETITION FOR

WRIT OF CERTIORARI AND BRIEF

THEREON.

GERALD FITZGERALD

GEORGE F. MAYNARD

Solicitors for Respondent.

TMB CHALLENGE, CLARKSDALKE. MISS.

LIST OF CASES CITED IN BRIEF.

Page

Act of Congress, Sept. 6, 1916 (39 St.L.726) 7-12

Act of Congress, Mch. 3, 1893 (R. S. 751)-_-2-6-8

Am. Const. Co. vs. Jacksonville, ete. (148 U.

Ti: -Ge anotienntdsenibansudkdniion 13

Atlant. & Pac. R. R. Co. vs. Hopkins (94 U.

| RE ey Car eee ee 12

Angel vs. Byers, 153 Ky.214 (154 SW i111) 10

Borneman vs. Norris, 47 Fed. 438_------- 11

“apital Bank vs. Huntoon, 35 Kan. 592 (11

es | ST ecintmn oc Uiliekn acs aciieebitecbininds 10

Cargill vs. Minnesota, 180 U. S. 452___---- ll

Cole vs. Bridges, 45 Miss. 257... --..--- 10

Cumb. Lbr. Co. vs. Tunis Lbr. Co., 171 Fed.

PEN "eh ies cscs eastanek tn ki aes liana inanen iain ania 12

liouglass vs. Pike Co., 101 U. S. 678_______ 11

Forsythe vs. Hammond, 166 U. S. 506__ .-_ 13

Hancock vs. Youree, 25 Okla. 463 (106 Pac.

GON cndudlieiadtude cnateasdaeaduke 10

Jones vs. Rogers, 85 Miss. 802____________ 10

LaFrance Copper Co., 205 Fed. 207_-____- 9

Landsburg vs. McCormick, 224 Fed. 874__- 9

Magoon vs. Scales, 9 Wall. 23_....-___-__ 12

Moody vs. Moeller, 18 Am. St. Rep. 839___ 10

Merchants Bank vs. Evans, 51 Mo. 343___. 10

Miss. Constitution, 1890, Sec. 104_-_______ 13

Page vs. Turk, 43 Okla. 675 (143 Pac. 1049) 10

Phila. & Reading Coal & Iron Co. vs.Gilbert,

See hs Wh Ebeatunndnucncaneke aan 8-12

venient place; and, cattle, sheep, or stock,

Rien Hse

Sinclair vs. Stanley, 64 Tex. 67... -------- 10

Smith vs. Cockerill, 6 Wall. 756..-------- 10

Smith vs. Vulcan Iron Works, 165 U. S. 518 13

Tolbert vs. State Bank, 30 Okla. 407 (121

EST Ge IN nS SA, ap aR 10

Webster vs. Cooper, 14 How. 488_ ------- 11

| Ti RR Le ee ee a een ered Peete

IN THE SUPREME COURT

OF THE UNITED STATES.

YAZOO & MISSISSIPPI VALLEY RAILROAD

COMPANY, ET AL., Petitioners,

Se ae ee

VS.

The CITY OF CLARKSDALE, Respondent.

q

IN RE: MOTION TO DISMISS PETITION FOR 4

:

WRIT OF CERTIORARI.

Now comes the respondent, by its solicitors, and

moves the Court to dismiss the petition for Writ of

certiorari herein because:

First: In this cause there has been no final judg-

ment or decree rendered or passed by the highest

Court of the state in which a decision could be

had, where is drawn in question the validity of a

treaty or statute of, or an authority exercised un-

der the United States and that decision is not in

favor of their validity, nor has there been drawn

in question in this cause the validity of a statute

of or an authority exercised under any state, on

the ground of their being repugnant to the consti-

tution, treaties, or laws of the United States, the

decision being against their validity; Nor is there

»

in this cause any title, right, privilege or immunity

claimed under the constitution or any treaty or

statute of or commission held or authority exer-

cised under the United States, espcially set up or

claimed by either party.

Second: There is no Federal question involved

in this cause.

Third: This cause was decided upon the con-

struction of State Statutes upon which the deci-

sion of the State Supreme Court is conclusive.

Fourth: This cause was decided upon sufficient

grounds upon which to base the decision regard-

less of any Federal questions involved.

Fifth: No Federal question was decided in this

cause; and, if decided, then within the law.

Sixth: If any right, title, privilege, or immunity

claimed under the constitution or any treaty or

statute or commission held or authority exercised

under the United States, is involved in this cause

then same was not “espcially set up or claimed”

by petitioners.

Seventh: The only Federal question which itis

claimed to be involved in this cause is stated in

specification of error No. 2, p. 10 of the petition

of Certiorari, to-wit: (Miss. Supreme Court erred

in its final decree) ‘'2. In adjudging that the ap-

plicable law respecting said execution sale was

not the Act of Congress of March 3, 1893(27 St.L.

751) under which a sale at the Federal Court

House door, instead of the county Court House

door is an irrgularity, merely, but that the control-

4

3

ling statute was the Mississippi statute under

which an execution sale at a place other than the

county court house is void.” And said _ specifica-

tion of error is plainly patent to be without merit

as shown by the face of the petition.

Eighth: The error assigned is frivolous and

not of sufficient importance to the merits of the

case to cause the issuance of a Writ of Certiorari

from the Supreme Court of the United States.

Ninth: And for other apparent reasons.

Respectfully submitted,

GEO. F. MAYNARD

GERALD FITZGERALD

To the Hons. Chas. N. Burch and H. D. Minor,

solicitors for petitioners; the Yazoo & Mississippi

Valley Railroad Co.; the Mississippi Valley Com-

pany: D. A. Scott and E. M. Yerger, petitioners:

You wil please take notice that in answer to

your petition for Certiorari to be addressed to

the Supreme Court of Mississippi in the case of

the Yazoo & Mississippi Valley Railrad Company,

et al., Petitioners, vs. City of Clarksdale, Re-

spondent, that the respondent will, on Monday,

October 6, 1919, at noon, or as soon there-

after as counsel may be heard, submit the

foregoing motion to dismiss the said petition for

Writ of Certiorari and for a denial of the same.

GEO. F. MAYNARD

GERALD FITZGERALD

Solicitors for Respondent.

STATEMENT OF THE CASE AND BRIEF.

There is involved in this cause the title to two

hundred and fifty (250) shares of the stock of the

L., N. O. & T. Ry. Company, now consolidted with

the Yazoo & Mississippi Valley Railroad Com-

pany, issued to the City of Clarksdale on April 29,

1891. The original bill was filed against the

Yazoo & Mississippi Valley Railroad Co. asking

for the reissuance of this stock and alleging that

the same had been lost, destroyed or stolen. The

defendants, the Yazoo & Mississippi Valley Rail

road Company, answered, admitting the owner-

ship of the stock in the City of Clarksdale up to

the date of December 6, 1897, upon which date

it was alleged by the defendant railroad company

that the said stock was sold by the Marshal of the

United States Circuit Court for the Northern Dis-

trict of the State of Mississippi at Oxford, Missis-

sippi,in front of the Federal Court building by vir-

tue of an execution issued on a valid judgment

against the said City of Clarksdale; and that the

Mississippi Valley Company, a holding corpora-

tion, owner of the Yazoo & Mississippi Valley

Railroad Company, had since purchased said stock

and was at the date of suit the owner thereof.

The cause thereupon went to trial and upon the

introduction of the returns of the execution, the

City of Clarksdale, admitting the validity of the

judgment, attacked the sale collaterally for the

following reasons:

To the execution marked exhibit “HDM No. 2”,

5

record page 54, the following objections were

made:

“First, that the return on said execution does

not show proper levy; Second, that the return on

its face shows that the property levied on was sold

at the wrong time and wrong place and in an im-

proper manner; Third, that the return attempts

to show the execution of a writ of venditioni ex-

ponas on which paper alone the return could be

made, and because the return is truly and absol-

utely void as to the actual sale and delivery of any

of the share, interest or stock of the City of

Clarksdale in and to the L., N. O. & T. Ry. Co. or

the Y. & M. V. Rilroad Co.; because the return is

not in conformity with the statutes of the State of

Mississippi in regard to the levy and sale of such

property in any respect; because the return does

not show any authority by law to make such a levy

as is alleged to have been made or to make such a

sale as is attempted to be shown by the return.”

(Record P, 57.)

To the execution marked “HDM No. 6”, page

58 of the record, the City of Clarksdale made the

following objections, (rec. p. 60):

“Because the paper is incompetent, immaterial

and irrelevant; because the return does not show

any sale; because the return is made or proposed

to be made by Deputy United States Marshal of

the Southern District of Mississippi, and no sale

is alleged to have been made by him; because no

levy is shown by the execution as required by the

Statutes of Mississippi or the law in force at the

time as acknowledged and acted upon by the

United States Court in the districts of Mississippi;

—

6

because the return is void except as a _ return

“nulla bona” ad shows on its face that no action

was taken by the officer.”

Upon these objections, the Chancery Court of

Coahma County, Mississippi, before whom the

case was then being tried, ruled the evidence out

and gave judgment in favor of the complainant

for the possession of the stock. The case was

thereupon appealed to the Supreme Court of the

State of Mississippi and affirmed without opinion.

Whereupon, the petitioners, defendants as afore-

said, have prayed this court for a Writ of Certior-

ari to be addressed to the Supreme Court of the

State of Mississippi.

In praying for the Writ of Certiorari, the sole

Federal question alleged is as followa: (ihe Su-

preme Court of Mississippi erred)

“No. 2. In adjudging that the applicable law

respecting said execution and sale was not the

Act of Congress of March 3, 1893 (27 stat. L.

751), under which a sale at the Federal Court

House door instead of the county Court House

door is an irregularity, merely, but that the con-

trolling statute was the Mississippi statute under

which an execution sale at a place other than the

County Court House is void.”

The Act referred to is as follows:

“An act to regulate the manner in which pro-

perty shall be sold under order or decree of any

United States Court.

Sec. 1. (Real estate, how sold under order or

7

“cree of Court) That all real estate or any inter-

est in land sold under any order or decree of any

United States court shall be sold at public sale at

the Court House of the county, parish or city in

which the property or the greater part thereof is

located, or upon the premises as the Court render-

ing such order or decree may direct.

Sec. 2. (Personal property) That all personal

property sold under any order or decree of any

Court of the United States shall be sold as provid-

ed in the first section of this act, unless in the opin-

ion of the Court rendering such order or decree,

it would be best to sell it in some other manner.”

Record pages hereinafter referred to are pages

of the record in No. 402, October Term, 1919, be-

ing the record sent up on Writ of Error in this

same cause.

As counsel makes no other specifications of er-

ror upon which the Supreme Court of the United

States can base the issuance of a Writ of Certior-

ari, we will base our entire argument on his sec-

ond specification, page 10 of the petition for Cer-

tiorari above quoted, and not seek to follow him

in his peregrinations through the mazes of his so-

called equitable reasoning.

Under the At of September 6, 1916, cnapter

448, 39 Stat. L. 726 amending section 237 of the

Judicial Code it is provided that a “final judgment

or decree in any suit in the highest Court of the

State in which a decision of the suit could be had,

where is drawn in question the validity of a treaty

or a statute of, or authority exercised under the

United States; and the decision is against theiy

validity, or where is drawn in question the validity

8

of a statute of, or an authority exercised under

any state on the ground of their being repugnant

to the constitution, treaties, or laws of the United

States, and the decision is in favor of the validity

“that the same might be re-examined and _ re-

viewed or affirmed in this Court upon a Writ of

Error; but only where “any title, right, privilege

or immunity is claimed under the constitution or

any treaty or statute of, or commission held or au-

thority exercised under the United States and the

decision is either in favor of or against the title,

right, privilege or immunity, especially set up cr

claimed, by either party, under such constitution,

treaty, etc.”’ Can this Court examine and disaf-

firm or reaffirm a decision of the State Supreme

Court by Writ of Certiorari?

“The difference between the two modes of

securing the review as contemplated by the stat-

utes lies in the fact that a Writ of Error is granted

as of right, while a Writ of Certiorari is granted or

refused in the exercise of sound discretion.”

Reading Coal & Iron Co. vs. Gilbert, 245 U. S. 162

In exercising the sound discretion spoken of by

Justice Vandevanter in the Reading Coal & Iron

Co. case, this Court must necessarily in consider-

ing the petitin for Certiorari examine somewhat

the grounds upon which the petition is based. And

unless the grounds set forth in the petition are of

sufficiently grave a nature to warrant the issuance

of this unusual writ, the petition will be denied.

Specifications of error No. 2, page 10 of the pe-

tition is on its face a frivolous assignment of error.

The Act of March 3, 1893, Chap. 225, 27 Stat.

L. 751 has no application whatever to a sale of

9

ands or personal property under execution, but is

‘nerely an act to regulate the manner in which

property shall be sold under order or decree of

any United States Court. The United States

Court made no order or decree in this cause as

shown by the Clerk’s certificate (Record p. 93)

so that if the above statute did apply, which of

course it does not, the sale would stil] have had to

have been made at the county Court House and

not in front of the Federal Court building. As

will be seen upon examination, this statute is no

part of the common law procedure nor is it incor-

porated in the Judicial Code as compiled March 38,

1911. As said by the Court in re: LaFrace Cop-

per Co, 205 Fed. Rep. 207, “The Act of March 3,

1893, R. S. 751, seems to relate to judicial sales

pursuant to some order or decree, creating or de-

claring the right to sell and which right could not

be exercised but for the order or decree; sales ne-

cessarily authorized and ordered by the Court;

sales void but for such order or decree; sales di-

vesting the title of the former owner.”

And in the case of Landsburg vs. McCormick,

224 Fed. Rep. 874, the Court said:

“Indeed the Court recognizes and distin-

guishes the case of Godchaux vs. Morris. The

cases holding sales made by merely minister-

ial officers at a place not authorized by

statute to be void obviously stand on a differ-

ent foting.”

We submit, on the whole, that it is too plain for

argument to this Court that the Act of March 3,

1893, sec. 751 R. S. has no reference whatever to

sales made under execution, but only refers to

has aa

PF ERI Ry ET i anes

POETS te EES IH

SET TIO ORE PL ay FILO OR

y 10

3

; sales made under order or decree of any United

: States Court.

d

The cause below was tried upon the objections

hereinabove stated to the evidence of the sale

made by the Marshal under the Mississippi Stat-

utes with reference to sales made under exe-

cution. The Lower Court and the Supreme Court

of Mississippi in construing the State Statutes held

that a sale of personal property made in front of

the Federal Court House instead of the County

Court House by virtue of execution issued and in

the absence of any order or decree was utterly

and absolutely void and subject to collateral at-

tack, and they had as their authority the follow-

ing cases:

Cole vs. Bridges, 45 Miss. 257.

Jones vs. Rogers, 85 Miss. 802.

Moody vs. Moeller, 13 Am. St. Rep. 839.

Sinclair vs. Stanley, 64 Tex. p. 67.

Smith vs. Cockerill, 6 Wallace 756.

Angel vs. Byers, 153 Ky. 214. (154 SW

1111)

Page vs. Turk, 43 Okla. 675. (143 Pac.

1049)

Talbert vs. State Bank, 30 Okla. 407. (121

Pac. 212)

Hancock vs. Youree, 25 Okla. 463. (106

Pac. 842)

Merchants Bank vs. Evans, 51 Mo. 343.

Capital Bank vs. Huntoon, 35 Kan. 592.

(11 Pac. Rep. 377)

“Under the laws of the United States re-

11

lating to the sales of property taken under

execution in commn law cases pending in the

Circuit Court, defendant in execution is en-

titled to have the sale of land seized under

execution made at the door of the Court

House of the county in which it is situated.”

Borneman vs. Norris, 47 Fed. Rep. 438.

The only question involved in this cause is the

construction of the state statute by the State Su-

preme Court and such construction is binding up-

on the Supreme Court of the United States unless

some act of Congress is opposed thereto.

“Where the construction given by the

highest Court of the State to the construction

of the statute of the state has been uniform

and is settled, it is binding upon the Courts of

the United States as a rule of decision.

Webster vs. Cooper, 14 Howard 488.

‘As a rule,the Supreme Court of the United

States treats the construction which the high-

est Court of the state has given to a statute

of that state as a part of the statute.”

Douglass vs. Pike County, 101 U. S. 678.

“The construction of a State statute is to

be accepted by the Federal Court in deter-

mining whether the State statute violates the

Federal constitution.”

Cargill Co. vs. Minesota, 180 U.S. 452.

‘The decisions construing the practice acts

—

SS

ee SS gua agin eae eee ee

ae TMEV ENE EPR A RE PRAY EI SAPO ts TA a Ne aoe —

Ps

¥

12

of the State are binding upon the Courts of

the United States.’

At. & Pac. R. R. Co. vs. Hopkins, 94 U.

o. Mm is;

McGoon vs. Scales, 9 Wall. 23.

If counsel were right in his assertion that the

Act of March 3rd, 1893, Section 751, R. S., is the

applicable Act, which is strenuously denied, even

then he would have no ground for asking a writ

of certiorari,because without a special order or de-

cree naming place of sale it is incumbent that pro-

perty sold under such order or decree be sold at

the County Court House, and this mandatory.

Cumberland Lbr. Co. vs. Tunis Lbr. Co.

171 Fed. p. 352.

In passing the act of September 6th, 1916,

Chapter 448 (39 Stat. L. 726) which amends Sec-

tion 237 of the Judicial Code, and which provides

for re-examination and review by the Supreme

Court of the United States by writ of certiorari in

the cases therein specified, it is certain that Con-

gress intended that the sound discretion of the

Supreme Court of the United States should be

used in directing the issuance of this unusual writ.

In fact, this is the construction put on said Act by

Justice Vandevanter in the case of

Phila. & Reading Co. vs. Gilbert, 245 U.

S. 162.

It would also appear that in passing this amend-

ment to Section 237 of the Judicial Code, Con-

13

gress evidently had in mind former decisions of

the Supreme Court of the United States in which

it was held that the writ of certiorari is one spar-

ingly to be used and will only be exercised when

the circumstances of the case show the importance

of the question involved; to avoid the necessity of

conflicting decisions or some matter affecting the

interest of the nation.

Forsythe vs. Hammond, 166 U. S. 506.

Smith vs. Vulean Iron Works, 165

U. S. 518

American Constr. Co. vs. Jacksonville

etc., 148 U. S, 372

Where it is so patent,as is the case here,that the

statutes of the United States (Act March 3, 18938,

R. S. 751) which counsel claims are applicable,

can in no aspect of the case have any effect on the

decision of this Court, or of the Mississippi Su-

preme Court, then the writ will certainly be de-

nied.

It is deemed useless to go into the merits of this

cause and weary the Court with the numerous

equitable defences, such as lasches and the Stutute

of limitations,, which can not affect a Municipality

in the State of Mississippi, since the adoption of

Section 104 of the Constitution of 1890 of the State

of Mississippi, which provides—‘‘Sec.104—Statute

of Limitations in civil] causes shall not run against

the State or any sub-division, or municipal corpor-

ation thereof.”

We respectfully submit that the writ of cer-

14

tiorari herein prayed for should be denied.

GEO. F. MAYNARD

GERALD FITZGERALD

STATE OF MISSISSIPPI.

COUNTY OF COAHOMA.

This day personally appeared before me,

the undersigned, a duly qualified and acting No-

tary Public within and for the County and State

aforesaid, Gerald Fitzgerald, who having been by

me first duly sworn, states on oath that he is a

member of the Bar of the Supreme Court of the

United States, anc that he has heretofore, on the

20th day of September, 1919, sent by registered

mail to Hons. H. D. Minor and Chas. N. Burch,

solicitors for the Plaintiffs in Error, at their post-

office address, in Memphis, Tennessee, a full, true

and correct copy of the foregoing motion to dismiss

the petition for Writ of Certiorari herein and the

Brief thereon.

GERALD FITZGERALD

Sworn to and subscribed before me this the

20th day of September, A. D. 1919.

E. J. MULLEN,

Notary Public.

OCT 4 1919

| JAMES D, MAHER,

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1919.

THE YAZOO & MISSISSIPPI VAL-

LEY RAILROAD COMPANY, ET AL.,

PETITIONERS,

vs. No. ORE

CITY OF CLARKSDALE, ss

RESPONDENT.

REPLY TO MOTION TO DISMISS PETITION FOR

WRIT OF CERTIORARI.

H. D. MINOR,

CHARLES N. BURCH,

BLEWETT LEE, Solicitors for Petitioners.

Of Counsel.

LATOCH € ARHOLO MEMPHIS

—-

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1919.

THK YAZOO & MISSISSIPPI VAL-

LEY RAILROAD COMPANY, ET AL,

Petitioners,

Vs. No, 402.

CITY OF CLARKSDALE,

Respondent,

REPLY TO MOTION TO DISMISS PETITION

FOR WRIT OF CERTIORARI,

MAY IT PLEASE THE COURT;

As we read the rules of the Court there is no such

practice as a motion to dismiss the petition for cer-

tiorari, but the only proceeding open to the respond-

ent is to file a reply brief,

No further answer, therefore, is deemed necessary

to this motion exeept respectfully to eall the atten-

tion of the Court to the fact that this case is also in

this Court on writ of error to the Supreme Court of

Mississippi, allowed by the Chief Justice of that

Court. With respect, therefore, to the brief filed in

support of this motion to dismiss our petition for

certiorari we are content to rely on our brief in sup-

port of the petition for certiorari already on file

and our brief on the writ of error.

Respectfully submitted,

H. D. MINOR,

CHARLES N. BURCH,

Solicitors for Petitioners.

BLEWETT LEEK, of Counsel.