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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0408%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1933
- **Citation:** 290 U.S. 240

## Text

/
“* i a
— s 7% :
as oad m an 4 4 ‘ ‘ “ ¢
° 2
° 5 : . P Ed
\ ° -
. OA: " .
. e .
. 5 : “
: ° . = ?
\ . ;
.
. x . *
- 5 . .
° = e
a : ° ;
= 3
re °
: 2
j " . ry . a
» . o ea
ph tie # P
‘ °
” .
: x “ -
. : ¢ fp ru c-
j x... ; ;
° _— ~
"i e
. > - . se
© \
. - ° . + ‘
ye p : ‘
as
.
. ¢ .- . :
. - . e . rod
¥ M ris ry .
. ri * e °
> . . e . :
: ‘
. . © ; .
. =e F
: ° -
° e ; \e
“i e 7 . .
. ° aa . .. t
. - Re Ls C hs
. e . or & °° :
33 e . , e
es ¢
. . 7.
+ ee
> sae : - . t
: ® . .
° x * : @
- m ° .
" Son °. -
« - , ° :

iS ° ‘ 8,
° .2 ;
‘ a eA
Rk ee.
P. —
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
. ° ” . fs | 4 ;
a rae
‘ ‘
Segoe,
\ ;

“a | ’ “~ aa tis ‘

- 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
. 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.

% :

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0408%3A13. Public record. Not legal advice.