Reply Brief — Keystone Driller Co. v. General Excavator Co.

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3 Table of Cases, | :;

* Bank of Commerce, et al. v. State of ee 163 y

U. 8. 416, 41 L. Ed. 211. /. eae aku is iced Bate tis 20 “ ¢

: Conley v. United States, 59 F. (2d) 999, ae

. Gantly v. Ewing, 3 How. 707, 717; ti L? Ed- 794, oa 2.

Hubbard v. ‘Tod, 171 U. 8. 474, 494, 43 L. Ba., 24 9 =

___ DAENE DRS Arere pee are ee ea rere peadecedg ©

Kosak v. United tetas 54 F. (2d). - Saaeares ae ee

_ Story v. Livington, 13 Pet. 399, 10 L. Ed.°200..:.... 3

The Board of Supervisors v.J. Ww. Kennicott, et al:,.

94. U.S. 499, 24° L. Ed. 260.0... Se eae 3

The Stephen Morgan v. Good, 94 U S. 599, 24 L ‘Ed.

hits Vana v es qeues.cs mer raeyer Weegee 3

D Witod States-+: Raifting eatin, al., 228 U. 8.

158, 57 Li. Ed. 779..... se Sah Airside apc iw aig aes a

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- Supreme Cert of the United Siates

OCTOBER TERM, 1933, " v4

KEYSTONE DRILLER COMPANY, ‘ ree

: > Petitioner, -

GENERAL EXCAVATOR’ C@MP ANY, \

Respondent.

KEYSTONE DRILLER COMPANY, . os

* Petitioner, ®. ie Reig <a

a - GENERAL EXCAVATOR COMPANY, a aN ; >

. ae d * — i sa ®

KEYSTONE DRILLER COMPANY, , ‘

am wtiioner, i Mae

‘THE OSGOOD. COMPANY, is .

\ | Respondent. an i oo

__- KEYSTONE DRILLER COMPANY, -

: ont Petitioner,

: . _ No. 87.”

THE OSGOOD COMPANY, ;

_- Respondent,

REPLY BRIEF IN SUPPORT OF MOTION TO

yy RECALL AND CORRECT MANDATES.

Statup: The ‘The decrees of the Cirenit. Court of Appeals.

“were ‘suspended by that Court and never issued as man-

dates to the District Court for the Northern: District of”

: . i oe +

{ ee ae es :

Ohio. “The only mandates which re are" é the Dis:

trict Court Were those mandates issued by’ this-Court on

January 5, 1934. The mandates of this Court were re-

a ceived by the District Court on or about J anuary 9, 1934. oe

No: decrees have, been entered by the District Court.

x The entry of such. decrees is being ‘postponed pending

_’ decision’ of the’ Court of Appeals ‘ipon a: petitios for

i as to costs in that Court. - .

The Motion to Recall and Correct. the Mandates should.

be granted for the following reasons: ~~ | z.

This motion cannot be classed as a petition for re--—

hearing’ as suggested by the petitioner, ‘Itis- ‘brought

‘within the same term in which h_the- mandates have been

issued by this Court: The decrees have not been’ en-

d- by ‘the District Court. Every appellate : tribunal

- power to recall and correct its mandates to conform

to what was actually decided. A motion for recall and

correction is the propér provedure. oor .

Bank of. Commerce, et al: v./ State of ‘Tennessee

Se : 163 U: 8. 416,41 'L. Ed. 211. ° -

-\Xat + United States v. a Yompany, et al. 2280.

oe es S. 158, 57 L. me. 779.

\ .

‘The case of iaiie Vv. idee 3 Rion: 707, ‘ni, i L. m4

i. 794,798, has no relation whatever to this situation. - A

| request’ for recall and correction. of mandates is not an, -

_att-directly. prohibi d. ‘It is an act that is directly per-.

_ mitted and an act oy approved by the decision of this

- Court as the proper. rocedure when thee cireumstances _

warrant it. : ae pees

| paragraph of the respondents’ brief. before this Court

“requested that the decrees of the Circuit # sg of Ap’

peals should be affirmed, these respondent are now pre=~

cluded from asking for a correction.of the mandates of

this Court. It is clear, however,.that-this single sentence

taining ¢) proper_cortection of a mistake in the man-

dates. _The briefs - ‘before this Court show that respond- ¢.

Court ‘of Appeals as a whole, The decrees of, the. Court

of Appeals cannot, be detached from the Opinions. upon

_ which they are. supposed to be founded. This Court

in connection with the O pinions and the record for the

Court. a ee |

/

al., 94 U. 8. 499, 24 L. Ed. 260.

Story’v. Livingston, R Pet. 359, 10 L. Ed. 200.

; “The case of. Kosak v. United States, 54 F. (2d) 72,. is

. not pertinent to the present. situation. In that case, there

was no mistake to correct. * In the present case, a com-

Opinion of this Court with the mandates clearly shows

is needed. « ’

* The cases 5 of The Stephen Miveen v. Good, ' of U. Ss.

599,24 L. Ed. 266, and Hubbard v. Tod, 171 U: 8. 474,

A siggestion is made that, because. the eoncluding *

.-in “eSpondents’ brief cannot-bar respondénts from ob

_-erits were asking for an: -affirmance of the decision of the —

- has many. times held xthat decrees ‘are to be construed’ |

purpose of carrying into — the actual decision. ‘of the |

The. Board of ‘geeivianin « v. d. W. Kennicott, et a

“parison of the Opinions of the Court’ of Appeals and the”

that a mistake was made. by the Clerk and that correction

ost

494, 43 t.. Ed. 246, 953, are not pertinent to’ this situation.

~ The fact that respondents did not apply for writ of cer-

’ tiorari certainly hag. no bearing upon respondents’ right /

to move for recall and correction of the mandates which if

- fail to. conform with what was actually m ided-as shown

by the Opinions of the Court of Appeals and:this Court:

The case of Conley v. United States, 59 F.. (2d). 929, .

936, does not bear upon the present situation. “Whether

_/ or not. the Court of Appeals had discretion i in this’ mat-

_ ter. is not at issue. The point is: that the mandates i

“not conform to what was actually decided and the ques- .. ;

| tion of discretion or abuse. of discretion can have no-

ot beating upon this point. Ee ee

. CONCLUSION.

It is vedinashtiiliy submitted that ‘the motion i recall |

and correct’ the mandates should be granted. :

| Respectfully submitted,

| _EDWIN P. CORBETT,

LLOYD T. WILLIAMS,

“4. \- -EDWARD L. REED,

JOHN J. MAHONEY,»

: 3 .- Counsel for Respondents.

-WADE H. ELLIS, | ara

' CHALLEN'B. ELLIS,

. Of Counsel.

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