Opposition Brief — Lamb v. Schmitt

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5 IN THE |

| Supreme Court of the United Sure

OCTOBER TERM, 1931

No. 433

WIIIAM E. LAMB, Petitioner

> : WILLIAM A. SCHMITT, RECEIVER, Respondent

; ‘STATEMENT OF FACTS. AND BRIEF

IN OPPOSITION TO THE PETITION.

FOR WRIT OF CERTIORARI |

cn, creen 4 JACKSON,

“i _ ROBERSON & COOK,

|. f- -MAYNARD, FITZGERALD & VENABLE,

of. Counsel.

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| JURISDICTION _

"STATEMENT or FACTS.

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|” REASONS RELIED UPON IN grogen TO a

„„ IHE ISSUANCE OF THE Nr .

The decisions of the Cireu Court of Ap.

| b herp et tu confit with the 448

sions of this court nor with the

of other Cireuit Courts of Appeals

PAGE CO: ve. McDONALD, 261 U. S. 446.

STEWART vs. RAMSBY, 242 U. 8. 128.

DURST vs. TAUTGES, ET AL, 44 i FED. (2nd)

507,

WONG vs. CHOCTAW OKLA. 00. 160.FED, Soe

355 (C. C. A. 8). — 2

“TUL STREL CO, va, PUTNAM, 68 FED. 617

(C. C. A. 55

ADAMS vs..MERCT, TOO. 66 FED. 60

5 0

—— 6.

8 (C. c. A. 5)

cCeonrus JURIS, vol. 34, Pg. 200.

b. The petitioner will v. ame of no 5 = ae

immunity — — JS A

ape e. ‘The decision of the Circuit Court of ‘Ap ee |

ae biet u: final decision in the dis.

trict eourt 5 3 :

d. eee Seton ot eos

the Circuit Court of Appeals a 1

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IND, 168 U. 8. 506. a

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00. va, OTIS ELEV.- 00. 245 U.

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© SECTION 347, TITLE 26 U. 4 CODE et : a .

DENVER vs. N. V. TR. co. e e

ions Adama vis Meret. Co. e 66 Fed. 620 (C. . “A. 95

Ls Am. Go, ve, Jucksonville, Ete. Co. 148 U. S. Pe

ce . „3 138.160

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Denver va: N. V. Tr. Co. 229 U.S. 1222 16.

Dore va Tages bt A}, 44 Fed (24) 807 , 8, 10.

aut Rule No, 11 3 ates.

Pee Hammond, 166 v. 8 506 e

ener Co. va, Otis Eley. C0. 245 U. 8. 409

> eee a 20% Yar ee Ins. dus

17 85 ae nen 3 nec Putnam, 68 Fed. ¢ 617 (0. 0. 4 50

Keller- Adams Co. 264 U. S. VVT

dan Ow Bew, 141 U.S. 5

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e . Western Well, Wks. 201 N

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— va. Coty, 262 U. 8. 169 .

maid, 261. U.S. 446 5, 6, 7, 8, 10

, 48 Fed. (2d) 770

, 48 Fed (2d) 588, Ho

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| 5 Cireuit Court of Appeals 48 Fed (24) 588 (Rec. 169) 15

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Temps e RR. Co., 168 U. 8. W

LU, 8. Code, 847 (Judicial Code 240)

v. 8. Code 877 (Judicial Code 262)

U. S. Stat. at large, 43, Pg. 988

“U.S. ‘Supreme roar Rule 85-88

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_ OPINIONS OF COURTS BELOW | IN THIS baus

District Court 43 Fed. (2d) 770 Koe. 156)

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117. 1

INTHE

| Supreme Court of the United Ses

f n TERM, 1981

„„ i le .

WILLIAM E. LAMB, Petitioner

WILLIAM A. SCHMITT,: RECEIVER, Respondent.

“STATEMENT OF. FACTS AND BRIEF 1

IN OPPOSITION TO THE PETITION |

Fo WRIT OF CERTIORARI

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5 MAY IT PLEASE THE COURT:

This cause, No. 483 on the docket of this court; is a

ee companion case to No. 482 on the same docket, and

reference to No. 482, its records, briefs, and proceedings,

is here. made for a-fuller understanding hereof. —

rue opinion of the district court is ported in 48

S

Fed. (2nd) 770, r 156).

ore

„ae opinion of the’ Circuit Court of ‘Appeala for the

_ ._ Fifth Circuit was rendered on April 9, 1931, and is re-

Ported. in 48 Fed. (2nd), 588. (Rec. 169). .

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weet aes

5 | x _qoRispicrion Sates

5 * “The Fiat ot the petitioner to writ of certiorari from

5 . it bp: eee arten ae b ee

„ Var, ‘Title 28, Ce ; Oe

oe ‘le edurt to review the decision of the Ciiouit Court of |

Appeals below ee — on the follow- se

or (eh. 0 it hasedecided, a federal question in r

ee ‘courts r (f) 8 dag 40. far departed from wwe ae-

opted and. ugna),.coures, of. judigial progeeding,.or s° ;

far sanctioned such a departure by a lower court as to

ae „ of ‘this court power of ‘supervision.

EFF ae eo

sh tas 4 The eee of the court below is not * final a as 4

decilon. VVV „

N There is no ‘special « or important reason for. the .

eee of the writ-of certiorari asked for herein. “ 1

Tuts 3. The writ of. certiorari asked for here is not one 5 i

5 to e decision of the Circuit Court of Appeals. ;

() where said decision is in conflict with the decision

I) of another Circuit Court of Appeals on the same matter 1

or (55 where’ it hag decided an important question of ~~

“local law in a way probably in conflict: with applicable 4

local decisions; or (e) where it: has deeided an-import-

f 5 ant question of general law in a way probably untenable .

or in conflict with the weight of authority; or (d) where

m has decided: an important question of federal~ Taw

Which has not been, but ahead he, anttled. h this court:

<A Rin; wath ot, eee ash, for: e te. bei.

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STATEMENT OF FACTS a

The original bill, (Rec. Pg. 1) in this cause being.

No. 162 in Equity in the district court below, was filed *

as a bill, ancillary to cause No. 129 in Equity, in the

‘game. cougt. (See original bill No. 129 in Equity. Rec.

Pg. 7-64%and supplemental bill therein. (Rec. 64-78),

The original bill in Cause No. 129 and supple

mental bill therein just cited, sought to set aside alleged

fraudulént conveyances, and plaintiffs claimed a lien

by virtue of the state statute and the rule in equity

esses in federal courts, on all the funds involved and

. described in the original bill, No. 129.

During the trial of the original ease in 3 No.

129, in the lower court, it was discovered that petitioner,

who was at that time attorney for the defendants in

said cause No. 129, had, since the filing of the suit and

during the peridency thereof, and with full knowledge

of the equities, taken ‘out of the corpus of the estate on

which a lien was claimed, approximately $90,000.00 of

the funds. Thereupon the plaintiffs in said original

cause No. 129 in Equity, filed an ancillary petition in

Cause No. 129 (Rec. 99-104) seeking summary. action

as against petitioner here (a) for a turn over and to set

aside such additional fraudulent conveyances; (b) as

for contempt ; (e) to enjoin further additiona] transfers.

An order was entered (Rec. 104) making petitioner a

party to cause No. 129 and ordering service thereof on

petitioner as (a) rule to show cause as for, contempt:

(b) rule to show cause for à turn over; (e) giving notice

of a temporary festraining order. Petitioner answered

the ancillary petition in cause No. 129 (Rec. 116) in all

-of its prayers and prayed for e ‘exoneration.

5 Gee. 138). — .

A decree was * in the original cause No. 129 |

5 (Rec. 8-04) which * reserved to the ‘district court |

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. and further orders as it may deem proper, 5

and as equity may require, both as to increasing the

amount of the estate, and / or increasing the amount

covering additional. property and disposing of any

adverse claims that may be interposed as against

any portion of said estate.” And further: (Rec. 86)

“This court reserves full jurisdiction of the -

cause té make any other and further orders which

thay be, from time to time, essential for the creation,

preservation, and/or disposition of the relative

tights of the several parties hereto; or any claimant 8

of any portion of the estate, now or hereafter cre-

ated. eee *

it am be seen ‘that the 8 was then a party

10 the cause No. 129 when decree was entered April

80, 1980 (Rec. 94). By the terms of said decree a

receiver was appointed (Rec. 80) and the “said receiver”

a giver the rights as follows: (Rec. 92) :

“aid receiver is hereby invested with full

power and authority to institute and/or prosecute

in any court of proper jurisdiction, at law or in

equity, any suit or proceedings against any and all a

persons whomsoever seeking to recover posession

and/or control ‘and/or damages in connection with 4

* the rights. hereby vested in him.” : 3

0 the 8 ‘filea 10 original bill here,

(Rec. Pg. 1) as an ancillary bill to cause No. 129. This

_ being done, as we believe, as a precautionary measure

And, to strengthen, if such was needed, the ancillary. .

-_ petition already filed in catse No. 129 (Rec. 99) as above

‘cited. Subpoena was thereupon issued (Rec. 94) and.

served on the petitioner and returned. Whereupon the

petitioner came into court and moved (Rec. 96) “to quash

e “attempted service of process on him.” The said mo-

5 (Ree. 96-99) was composed of five e a :

“+

due and owing ‘to any party -plaintiff, and/or un- ;

e Sila nen tt tht grote to quash as being

that the petitioner when served was a non-resident attor- 2

ney attending court in a foreign jurisdiction, and, there-

fore, exempt from service of any such writ. The motion

came on to be heard before the district court and after

hearing the evidence showing the surrounding facts and

circumstances, the district court, by final decree, (Rec.

155) quashed the service of process. The opinion of te

district judge appears at pages 156-160 of the Record.

25 Thereupon an appeal was taken by the receiver to the

Cireuit Court of Appeals for the Fifth Circuit where the

distriet court was reversed (Rec. 176) and Judge Daw-

- king. delivered the opinion of the court, which is found

at Pages 169-175 of the Record. The sole question of

appeal was whether or not petitioner Lamb, who was

admittedly a’ non-resident. attorney attending court in

a foreign jurisdiction, was subjest to — of. such a

writ. .

m

_ REASONS RELIED UPON IN OPPOSITION TO

_ THE ISSUANCE OF THE WRIT aoe

Upon reading the. statement of facts herein involved: at

as set forth in II, supra, it will be seen that.the reasons

relied upon for the allowance of the writ, as set fortn

under subdivision B of the. petition for the writ in Para-

graphs 1, 2, 3 aud 4 thereof, are not good and 1 ‘valid

reasons for the i ‘issuance of the writ:

8 the. decision of the Circuit Court of

. 1 of the Fifth Circuit is not in conflict with

the decision of this court in the 9 cases eited

7” petitioner, namely <

Peli Co vs. McDonald, 261 U. 8. 446.

. 88 . 242 U. 8. 128,

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. Al, 44 Fed. (2nd) 507.

2. While it is true that 3 the court issues its

writ of . Petitioner will be re-

to stand trial in the district court below,

nevertheless he will not be finally deprived of any

immunity athee the decision ot the Cireuit Court of

Appeals in this cause is not a final decision as to

‘petitioner: and petitioner yet has the right (4) to

tand trial in the district court; (b) to appeal to the

of

— Me? dy Q = 2 ;

on eee ey a panies

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Any error on the wit a the Circuit Court.

of Appeals for the Fifth Circuit, as set forth in

. eonflict with the decision of this court and other

8 — ‘eipeyite, nor ig such error in. a final judgment or

deere in said Circuit Court of Appeals from which.

5 writ of certiorari should be. allowed.

8 e 4. “Write of e are not gllowed from

this court to the Cireuit Court of Appeals in order

to review an error therein, as set forth in Paragraph

4 eubdtrision B bed the: petition for. he writ.

fein 15 Taking these reasons up seristim, and identifying ‘ 5

ee them ey. to distinguish agit from the n numeri:

a .

cee 3 — was u writ of. error to the District Court of

the United ee for the District of Massachusetts

. review n judgment of that court abating an action

“s brought ‘to recover damages for the alleged publi-

5 e ‘of mel. n. e hed ——— 5 suit,

Paragraph 8, subdivision B of the petition is not in — ;

ov ck os

es 8

„ It will, therefore, be seen that the decision of the

:.. Cireuit Court of Appeals in this instance does not come

el, was a case where Stewart brought an action at law

AK

She pleaded in abatement of the action that he was

immune from service. The district court held thet

dhe was immune. This judgment was affirmed by

At is founded, in the necessities of ‘the judi- ihe

- cial administration, and the courts, federal and

state, have equal interest in those n ties

They are both instruments of judieial administr -

tion within the same territory available to.auitors,

fully available, neither they nor all their wit- ° _

nesses subject to be embarrassed or vexed While

attending, the ene for the Protection of his rights,

the others while attending to testify.”-

And further: 2 3 oA ee

is ‘the privilege of the court’ we have seen,

rather than his. It is founded in the necessities

ol the judicial administration’.” 95 55 8

5 Fu Co. vs. McDonald; 261 U. S. 448

in cönfliet in any way with the Page Co. vs. Mebonald

6 The case of Stewart vn. Ramsey, supra, cited by coun- 55

a bape $

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e United States District Court for

the Northern District of Illinois where summons was

served on him personally. Ramsey pleaded in abatement.

tat he was a resident.of the State of Colorado. While

in attendance upofi the district court as a witness in the

case. where he was plaintiff, and that the process was

served while he was returning from the court room after

-'. testifying. There. was no. ques fon-in the case as to sum-

mary remedy or as to any part of the corpus of the prop- |

erty before the court in the original case having been

disturbed. The district court ruled that the defendant — 5

was immune, and the Supreme Court of the United

States affirmed the judgment but notice that the affir-

mation was upon the grounds as follows:

“The privilege which is asserted. here is the

privilege’ of the court, ‘rather than the defendant.

It is founded in the neceasities of the judicial admin

istration, which would be often embarrassed and |

sometimes interrupted it the suitor might be vexed

with process while attefiding upon the court for the

protection of his rights, and the witness while attend-

ing to testify. Witness would be chary of coming

within our jurisdiction, and would be exposed to

dangerous influences if they might be punished with

a law suit for displeasing parties by their testimony; -

and even parties in interest, whether in the court or

not, might be deterred from the rightfully, fearless

assertion of a claim, or the rightfully, fearless asser- : i

tion of a defense, if they are/liable to be visited on

the instant with litigation from the defeated party.”

* It will be seen from the above quotation that both

| the Page Co case and the Stewart vs. Ramsey case grant-

ed immunity to the defendant nöt because of any indi-

vidual richt of his, but because of the “necessities: * the

N ee. Prony

The case of Durst * 2 et al, supra, which:

was à case decided by the Circuit Court of Appeals for

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the Seventh Circuit, was a case wherein Robt. McDonald,

a member of the law firm, Tautges, Wilde and McDon-

ald, had come into the State of Wisconsin for the purpose

or taking depositions in a certain cause pending in the

state courts of Minnesota, was served with injunetiòhal

_ order, and three separate actions commenced that ‘day

m the Cireuit Court of Milwaukee, Wisconsin. MeDon-

ald, on behalf of his firm, moved to vacate the summons _

and the cause was removed upon petition to the District -

Court of thé United States where the district ¢ourt sus-

tained the motion to vacate the service of the summons.

The Circuit Court of Appeals in affirming this judgment

held that the privilege was not a perséna] privilege, but ey:

a privilege of the court: eters, ae va |

“It is not simply a personal privilege, but it. is

also the privilege of the court, and is deemed neces-

‘ sary for the maintenance of its authoriay and in

order to promote the due and efficient administra-

tion of justice.“ 3 3 . pees

Judge Dawkins, of the Circuit Court of Appeals,

in his opinion (Rec. 169-175) had before him all of these

decisions in the briefs of counsel, and in the last para- 5

graph of his opinion distinguished the position of the peti-

tioner in this case and his plea of immunity from the im.

munity granted in the other cases mentioned, in these

words:

“This immunity is more for ‘the protection eee

‘the court itself, and to prevent interference with its

proceedingy than for the benefit of the attorneys.”

Stewart vs. Ramsey, 242, U 8. 128. d

. To allow and to defeat proper proceedings for

the control of such property would be to destroy the

very basis of the rule itself, i. e, the orderty func-

_ tioning of the court.“

The Circuit Court of Appeals had presented to it

two rules of law; first, the well established rule of law:

. Se oe a RE Dee ee ae ia)

he court which. first: 8 the lawful jure |

* diction of specific property by seizure thereof, or by y-

the due commencing of u suit from which it appears’

that it is, or will become, necbssary to a determina- 1

tion of the Vuntehrveray involved, or in the inforee-

ment of its judgment or decree therein, for the oa

court to seize, to charge with a lien, or to exercise

bother like dominion over it, thereby withdraws

that property from the jurisdietion of every other

court so far as is necessary to accomplish the pur.

pose of the suit, and entitles that court to retain the

control of it requisite to effectuate its final judg- -

ment or decree therein, fyee from the interference of: =

every other tribunal. N

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e va Cheeta Oklahoma 8 160 Fed. 355 .

c. A. 8). | 71

| Mino Steel Ca va, Putnam, as Fed. 617 le. e A. 5) e

Adams’ vs. Mercantile Trust go., 66 Fed. 620 (e. C.

4.8) Corpus Juris, Vol. 34, Pg. 200.

Second, the well established rule of. law: :

5 „That a. suitor, or witness, or 1 is exempt

fais from service of process while without the jurisdiction

of his residence for the purpose of attending court

in an action to which he is a party, or in which he

is to be sworn as a witness.” )

- Page ce. . McDonald, 261 U. S. 446

5 Seen va, N, 242 U. S 126 .

. Durst’ vs. Tautges ot al, 44 Fed. (28d) 1.

These are two rules not e conflicting and 1 ‘

since both are rules established by all the decisions.

not tor the protection of the individual, but for the pro- es

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| tection of “the' judicial nécéasities”” they should nor

j deallowed to conflict,

N. 1 ‘ Be ; % oy : * che 515 a 0 *. ae si ( 2 5

‘ The decision of the Circuit Court of Appeals in this

ease, which held that where the two rules come in con-

. , fliet in the game cpurt the first rule qhoted should be

,, enforced to the exclusion of the second rule “because of ©

“the judicial necessities,” which is not in conflict either

- With justice, equity, or the rules of decision established

in this; or any other “court. Ne :

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f . Oe a See Te ee Pee dee yd aa:

On the motion to quash the service of process the

allegations of the pleading are taken as true, and the

_ evidence of the surrounding circumstances which were

taken on the motion to quash were undisputed, ‘There-.

fore the district court below as well as the Circuit Court

of Appeals below had only the choice of enforcing 5

e of the two, important rules of law above Sat

“forth beth of which rules were a growth of decisions

founded upon judicial necessity,” and to protect tha

jurisdiction of the courts. One rule to the effect that

‘a “person” whether party, witness, or attorney, attend-

ing court proceedings must not, be allowed to be with

drawn from the jurisdietion of the court. The other,

that “property” like wise, in a sense, attending court must.

not be allowed to be withdrawn from such attendance.

_ ‘Both rules are flexible and are not conflicting when,

"viewed from the basic reasonings upon which they. are

founded, and that one of the rules must prevail which —

best conserves the “judicial necessity,” and best pre-

„serves the “jurisdiction of the court.” 5

Ik the rule of exemption from service of non- resident

parties, witnesses and attorneys attending cqurt: in a

fortign jurisdiction was inflexible, we would ‘be faced

_ With the anomalous spectacle of each suitor in every

ease where claimed property was within the jurisdiction

Of the court and in process. of being seized thereby; hir- 5

mm a non-resident: attorney and handing aueh property |

oyer to him, thereby forcing the court to release juriadic-

tion thereof, and forcing the original complainant in the

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— a ein ee Se — arene aapeoneemnemnges

case to go ‘out of his local jurisdiction to the place of

residence of the foreign attorney to settle the question

of the validity of the transfer of property already con-

N ted in the Pane of the lower court. a

Such ‘a ‘proposition is unthinkable, ‘aiid 4 statement

‘of it is its own refutation. -

N R

(b) If this writ of certiorari is not aie it is

‘ true that the petitioner will be required to stand trial in

the district court on the merits, but he will not be de-

prived of his immuniy since he has still the remedy off

an appeal from the district to the Circuit Court of Ap-

peals, and, by writ of certiorari thence to this court.

(e) The San on of the Circuit Court of 3

below was from a judgment or decree of the district

court rendered upon the hearing of all the evidence for

the purpose of showing the surrounding circumstances,

and there was no error on the part of the Circuit Court

of Appeals to determine the issue Jon petitioner’s im-

5 munity from service of process upon the consideration of

the nature and merits of the surrounding circiimstances

upon which his immunity. vel non was based. :

. (d) There was no error in the decision of the Cir-

. cuit Court of Appeals herein; but if 80, this court will

not review the same on the ve of certiorari as here re-

7 deren. pigs Mae

5 ‘BRIEF: AND ARGUMENT IN. OPPOSITION TO TH

GRANTING OF THE WRIT OF CERTIORARI

The writ o e is asked here under 10 by 4

ee virtue ‘of Section 347, Title 28, U. S. Code. This section

was Judicial Code, Section 240, amended February 13,

|. 49265, to read as at pregent. Under Section 240 of the

JIiudieial Code prior to the amendment of February and?

0 1925, * was consistently held bf this court:

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1. That the jurisdiction to issue certiorari will

be exercised sparingly and only in cases of peculiar |

gravity and general importance:

- Lau Ow Bew, 141 U. 8. 883

Lu Ow Bew vs, U.S, 144 U. 8. 47 }

Auer Construction Company ve. Jacksonville

Railroad Company, 148 U. 8. 372 .

Forsyth vs. Hammond, 166 U. S. 506 8

_., Hamilton’ Brown Shoe Co., vs, Wolf, 240 U. 8. 21

7

Houston Oil Co., vs. Goodrich: 245 u. S. 440. 0

We judge from ‘the remarks of Mr. Justice McRey-

nolds in the case of Furness-Withy vs, Yang-Téze Ins.

Asso., that under the statute as it, then stood (Oct. 1916)

hundreds of additional cases were being taken to the Su-

preme Court by certiorari, and that, therefore,

necessary to give them the closest attention and fg

the writ only when absolutely necessary.

Furness-Withy. & Co. vs. Yang-Tsze Ins. Asso., 242

U. 8. 430. . ;

is In fact it has been held that certiorari will not be

» granted where there is any other remedy, and since in

the present case this petitioner has the remedy of going

back to the district, court and having his ease tried on

the merits and then appealing to the Circuit Court f

Appeals before asking for the writ of certiorari, his rem-

edy is plain and adequate. eh at 7

In re Tampa Suburban R R. Co., 168 U. S. 583.

- ili re Huguley Mfg. Co, 184 U. S. 27.

E.

*

Leer

This court has Sete held Ra. while the writ

of certiorari ig discretionary it is only granted upon extra-

ordinary reasons and is often denied when the bower to

issue is unquestioned.

"Hyde va. Shine, oe

Re Hitz 111, U. S. 166

e Const. Co. vs. Jacksonville, ie. co., 148

U. 8. 372.

Mr. Chief Wies Taft said in the case. of Magnum

7 mee Company vs. Coty:

; “The 3 how the court should exercise

‘this power next arises. The jurisdiction to bring up

cases by certiorari from the Circuit Court of Appeals

Was given for two purposes; first, to secure uniform-

ity of decisions between those courts in the nine

eilreuits, and, second, to bring up cases involving a

. questions of importance. which it is to the public . -

„interest to have decided by this court of last resort.

The urisdiction was not conferred on this court

‘merély to give the defeated party in the Circuit

Court of Appeals another hearing. Our experience

shows that 80 per cent of those who pétition for

- certiorari dé not appreciate these necessary Umita-

tions upon our issue of the writ.”

| Magnum Import ca, vs. Coty, ‘262 U. 8. 189.

The true rule is that even tuouch the writ be granted

a eee 5475 2 2 *

Bay 272

td the Circuit, Court of Appeals such, cases will not be

_ ‘reversed on certiorari unless it amounts to a e 1

Keen 1 42 f Lt

eae 2. Justice Taft held that this court would” Bet;

ss Sai entertain requests for certiorari of an ordinary patent 5

dess ‘unless it be necessary to reconcile decisions of the:

8 . Court ol Appeals on the. same Fea ö

1 a? e

| ny 8

The petitioner herein seems to think that this court,

will issue the writ of certiorart to review the ‘Cireuit —

‘Court of Appeals decision because in the opinion of peti-

tioner that decision conflicts in principle with certain

decisions of circuit courts of appeals in other cases not

related to the present. We do not understand this to

be the rule, . : ‘any mee Nii

* -

Mr. Chief Justice Taft said in th» Keller va, Adams

case, supra: Ped As re | ee

, me

“Such an ordinary patent. case, with its issues

of inventions, breadth of claims; and non- infringe-

ment, this court will not bring here by eertiorari .

unless it be necessary to reconcile decisions of the

Circuit Court of Appeals on the same patent. We,

therefore, find ourselves mistaken in assuming that

an important issue of general patent law, under See-

tion 4916, Rev. Stat. (Comp. Stat. Sec. 9461, 7 Fed

Stat. Anno. 2nd, Ed. P. 211) is here involved. The

result is that an order must be entered dismissing the

writ of certiorari as improvidently granted at the cost 7

*

of the petitioner. Layne & B. Corp. vs: Western

Well Works, 261 U. 8. 387, 67 L. Ed. 712, 48 Sup.

Ct. Rep. 422; Furness W. & Co. vs. Yatig-Tsze Ins.

Asso., 242 U. S. 480, 61 L. Ed. 409, 37 Sup. Ct. Rep.

141; United States vs. Rimer, 220 U. S. 547, 55. L. Ed.

578, 31 Sup. Ct., Rep. 596; Keller vs. Adams, 264

U. S. 314.“ ais 7 : 5 '

3. If upon examination of such: a case there is no

real conflict of such decision the petition will be dismissed.

Layne. & B. Corporation vs. Western Well Works,

“Ine, 261 U. 8. 377.

_ Inthe lr. 4 Bowler case, urs, the Chief Justice 5

also remarked that since there was no conflict isi the deci- 8

9

5 ales of the Circuit Courts of 3 on the same aden 5 oo

ke of’ ‘certiorari’ in 2 8 case would be dismissed

ing: 1 rt J 8 7

“rt it be suggested that as onic effort and tine

as we have given to the consideration of the alleged

conflict would. have enabled us to dispose of the |

case before us on its merits, the answer is that it is

very important that we be consistent in not granting

. the writ of cértiorari except in cases involving prin-

ciples the settlement of which is of importance to

the public as distinguished from chat of the parties

and in cases where there is a real and embarrassing

conflict of opinion and authority between the cir- —

cut courts of appeal. The present case en |

comes under neither head.’ a Ey ¥ —.—

4. Certiorari will not be 8 . mere is he

a any other remedy. 2

In Re Tampa Sub. R. K co, 168 U. S. 883.

By 5. That the judgment of the Circuit Court of rok Me

Reals: ‘of whieh certiorari is asked must be final. 0

—

Ges. A. 1 co. vs. Otis I —— Co. 245 v. S. 489. a

‘In the Fuller case, supra, Mr. Justice Holmes deliv- 5 :

| _ ered thé opinion in the case and held. ;

*

a t is objected 5 the writ * certiorari in this

ease that there was no final judgment; but the writ we

‘* when issued to the court of appeals is not limited

to cases in which final judgment has been entered,

but only to cases in which the. judgment when en-

tered: is final. — 255

ot course, ‘the ede from which the writ of

5 Gartiorari was asked in the Fuller case was under Judicial

eee ae Code 251 which has now heen repealed but the words

oes a quoted i Justice Holmes as follows: 80 5

— 3

—

“With the same power and authority inthe

case as if it had been carried by ‘writ o error on

appeal to said Supreme Court.” ar \:

gee which are still substantially a part of Sec. 347, Title 28, .

U. S. Code under which the present writ of certiorari is

requested as fallows:

_ “With like effect as if the cause had been

brought there by unrestricted writ of error or ap-

*

peal.” /

We take it that the last quoted words in Section 347,

Title 28, U. S. Code, mean just what J ustice Holmes said,

——namely,, that while the power is given to issue a writ of g

oeertiorari, to Circuit Court of Appeals direeting it to dend

up the record in- a case, either before or after a judg-

ment or deeree by such lower court, but that hen

record is sent up after a judgment granted by the Circuit

Court of Appeals it must be on one which was final.

Denver vs. New York Trust Co, 229, U. S. 123,

6. That the passage of Section 347- Title 28, U. S.

Code An., which is the amendment of Section 240, Judi- i.

‘cial Code by act February 18, 1925, 43 Statutes at Large

938, did not change the grounds or causes for the issuance

- of writs of certiorari, or make writs-of certiorari procur-

able under any less extraordinary circumstances is evident

from the fact that this court in the revision of its rules

adopted June 5, 1928, effective July 1. 1928, more than

three years after the amendment of February 13, 1926,

aforesaid, did not change that part of former Rule 85 -

contained in Paragraph 5 thereof, which: provides that.

a. review on writ of certiorari is not a matter of right

but of sound judicial discretion, and will be granted only

dere there are special and important reasons therefor.” |

And then continues to give the rules generally used in

1 5 measuring the court’s discretion. (Reference is here made

to the rule of this court No. 88). gia

1

1 ‘ . , —18— aa 5 SS

ae 4 .

. 7. It is Wh innd of ‘course, that the Supreme

Court of the United States also kas the right to issue @

ewrit of certiorari in cases not provided for by Section 347,

Title 28, U. S. Code, under the provisions of the. other

Section 877, Title 28, U. S. Code, Anno., but sinee the

latter is rather a provision extraordinary and for the 4

issuance of writs not specifically provided for by statute, =

we judge that the reasons herein given for not issuing «3

the writ under Section 847, Title 28, U. S. Code, would

apply with @) greater force to requests to issue the ern

under Section 377, Title 20, V. S. Code.

SUMNAyꝑRR:R

The petitioner herein has no right to the writ ot

certiorari (a) because the decision of the court below

is not in conflict with either the decision of this court,

or any other circuit; (b) because the matters involved

are not of general importance; (e) because the decision

from which certiorari is asked has been entered by the

Fifth Circuit Court of Appeals, and was not a final dec“

sion; (d) because the decision, in the Circuit Court of

Appeals was ee g .

It is, therefore, enn submitted that the wrtt 4

of certiorari herein 52 for should be denied. 2

GERALD FITZGERALD, 7 4

Counsel for Respondents.

GREEN, GREEN & JACKSON,

ROBERSON & COR.

MAYNARD, FITZGERALD & VENABLE,

of Counsel.