Petition for Writ of Certiorari — Titus v. Wallick

Supreme Court brief1939

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Te COPY JUL 8 1938

CHARLES ELMORE PROPLEY

Cicrenw

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 188.

EDWARD H. TITUS,

Petitioner,

LOU C. WALLICK.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO AND BRIEF IN SUP.

PORT THEREOF.

Tuomas L. Suenman,

~ Aanonx FReaxk.

Caunxel tay Petitioner

° INDEX.

Suszect Iwvex.

Page

Petition for a writ ot certiorari. _. 1

Summary statement of the matter involved 2

Reasons relied ona for the allowance of the writ 9

Prayer for ee 13

Brief in support of petition for writ of certiorari 15

L. The opinions of the courts below 15

ar Jurisdiction 16

Statement of the case 19

IV. Specification of errors 20

V. Arguments. 21

Summary of argument 21

Point I—The Ohio courts refused, di-

rectly so, and contrary to constitu-

tional provision to give full faith and

credit to the New York judgment 22

Point [l—Frand in obtaining a judg-

ment furnishes no ground for col-

lateral attack 24

Point I1]—The judgment remains unim-

peached and unimpeachable in New

York and it is therefore not subject to

collateral attack in Ohio 25

Point IV—Petitioner was the rea! party

in interest in the New York suit 28

Point V—The New York judgment is

conclusive upon whether petitioner is

real party in interest 34

Point VI—The absence of extrinsic

fraud 36

Conclasion 40

Tape or Cases Crrep.

Armstrong v. Armstrong, 117 O. S. 558 y

Allen v. Brown, 44 N. Y. 228 30, 32, 33

Abram French v. Marz, 8 N. Y. Mise. Rep. 490 35

—6553

ii INDEX

Bryant v. Zimmerman, 278 U.S. 63 __.

Barbin v. Moore, 85 N. H. 362......

Brown v. Powers, 53 N. Y. App. Div. 251...

Birdall v. Read, 188 N. Y. App. Div. 46.

Bachman v. Hausman, 241 N. Y. App. Div. 153

Banca C. 1. Trust Co. v. Clarkson, 274 N. Y.69......

Brown v. Gim, 66 O. 8. 316................. ae

Borgos v. Price, 140 N. Y. Misc. Rep. 283

Boston € Mame R. Co. v. D. é H. Co., 268 N. Y. 382.

Crapo v. Kelly, 83 U.8.610........... 19,

Crescent City Livestock Co. v. Butchers’ Soaeen 120

Pad ns cece cawaeadecdes. es 19,

Christmas v. Russell, 72 U. 8. 290 . )

Cole v. Cunningham, 133 U. 8. 107...

Corley v.N.Y.d4 H. Rail Co.,12 N. Y. App. Div. 409

Casady v. Scott, 40 Idaho 137. tf

Cauldwell v. City of New York, 252 N. Y. “App. Div.

559, 278 N. Y. —, 15 N. E. (2d) 70.

Donlin v. Carlow, 120 N. Y. Mise. Rep. 698

Dockery v. Central,45 Arizona 434

Elmquist v. Markoe, 45 Minn. 305

Fiske v. Kansas, 274 U. 8. 380

Fauntleroy v. Lum, 210 U. 8. 230

Green v. Van Buskirk, 72 U.S. 307 19, 22

Great Western Telegraph Co. v. Purdy, 162 U.S. 329 19, 22

Gray vy. Richmond, 167 N. Y. 348

Hancock National ‘Bank v. Farnum, 176 U.S. 640 19,

Hanley v. Donoghue, 116 U.8. 1

Holden, Matter of, 271 N. Y. 212 27,

Horne v. McGinley, 252 N. Y. App. Div. 296

Hunter v. Allen, 106 N. Y. App. Div. 557

Hentschel v. Fidelity, etc., 87 F. (2d) 833

Hoffman v. Foote, 172 N. Y. 348.

Harrington v. Denny, 3 Fed. Supp. 584, 68 F. (2d)

1004 36,

Jacobowitz v. Herson, 268 N. Y. 130

Kansas City So. Ry. v. Albers Comm. Co., 223 U.S.

573 23

Kalb v. Leff, 138 N. Y. Mise. Rep. 830 32

Lentz v. Oregon, 116 Oreg. 683 30

ERSSSRE KBNSERNR RRESSSSSSss

SRLS

Los Robles Water Co. v. Stoneman, 146 Cal. 203

McNitt v. Turner, 83 U. 8. 352

McCauley v. Georgia R. R. Bank, 239 N.Y.514 .....

McCandless v. Furland, 293 U. 8. 67

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291

Milwaukee County v. White Co., 296 U.S. 268 = 9, sees

Melgaard’s Will, 200 Minn. 493

Mayor v. Brady, 115 N. Y. 599

Meyers v. Credit Lyonnais, 259 N. Y. 399

Meeker v. Claghorn, 44 N. Y. 349

Moffett v. Robbins, 81 F. (2d) 431

Phillips v. Griffin, 236 N. Y. App. Div. 209

a a SS 8 ee

Roche v. McDonald, 275 U. 8. 449

Roby v. Rainsberger, 27 O. 8. 674

Stricks v. Siegel, 135 N. Y. Mise. Rep. 608, 138 N. Y.

Mise. Rep. 266.

St. Louis, L Mt. & So. Ry. Co. v. Starbird, 243 U.S.

592 |

Simmons v. ‘Saul, 138 U.S. 439

Shemdan v. The Mayor, 68 N. Y. 30

Schwartz v. Fletcher, 238 N. Y. App. Div. 554

Spencer v. Standard Corp., 237 N. Y. 479

Seybold v. Grand Forks,5 N. D. 460

Smead v. Fay, 1 Disney (Ohio), 531

Thompson v. Whitman, 85 U. 8. 457

Tioga v. Tidd, 164 N. Y. Misc. Rep. 273

Toole v. Fite, 57 Utah 1, 168 Pac. 427

Toledo Co. v. Computing Co., 261 U. 8. 399

Uni‘ed States v. Throckmorton, 98 U.S. 61 | 9,

United States v. Atkins, 260 U. 8. 220

United States v. California & Oregon Land Co., 192

U. 8. 355

Van Huffel v. Harkelrode, 284 U. 8. 225

Ward v. Southfield, 102 N. Y. 287

Warschauer v. Webb, 9 N. Y. St. Rep. 529

Webster v. Reid, 52 U.S. 437

Wolcott v. Hillman, 23 N. Y. Mise. Rep. 459

Wright v. Saltmarsh, 174 Oklahoma 226

RRBRERSSESNERSE

35, 39

24, 38

27, 39

iv INDEX

Taste or Statutes Crrep.

Page

Section 237 (b), Judicial Code... s—ss.s—iw. 16

Section 344 (b), Title280f U.S.C.A.... .......... 16, 19

Section 350, Title 28 0f U.8.C.A.................. 16

Section 905, Revised Statutes... .ss—si—iéi(‘(<a SO vests 16

Section 687, Title 2 of U.S.C.A................ 16

Section 210, New York Civil Practice Act... 4, 23, 31

TexTsooxs anv Ewcyciopepias Crrep.

Freeman on Judgments (5th Ed.), p. 633,663... 4

Freeman on Judgments (5th Ed.), p. 2569 are 39

Freeman on Judgments (5th Ed.) pp. 753-756. 35

Williston on Contracts, Rev. Ed., p. 1296. . re 29

Williston on Contracts, Rev. Ed., pp. 1166 to 1170. 32

Williston on Contracts, Rev. Ed, p. 1294..... 32

Carmody’s New York Practice, Vol. 2, pp. 804 to

MC aah Pe stene eres Delete dior 29, 32

23 Cyclopedia 964 ................... 35

34 Corpus Juris, Section 859... | 35

EEE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 188

EDWARD H. TITUS,

Petitioner,

vs.

LOU C. WALLICK.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO.

To the Supreme Court of the United States and the Honor-

able Justices thereof:

The petition of Edward H. Titus, praying for a writ of

certiorari on the ground that the courts of Ohio have denied

full faith and credit to a final judgment rendered in the

Supreme Court of the State of New York, and in support

thereof, respectfully shows to this Honorable Court:

There is presently pending in this case a motion by peti-

tioner to print an abbreviated record and by reason thereof

references herein refer to the typewritten record and the

exhibits annexed thereto.

Summary Statement of the Matter Involved.

On May Ist, 1934, petitioner recovered a judgment in

the Supreme Court of the State of New York against the

respondent in the sum of $389,103.21 (R. 27-30). There-

after petitioner instituted an aetion in the Common Pleas

Court, Franklin County, Ohio (hereinafter referred to as

the Common Pleas Court) for the purpose of making the

judgment in the Supreme Court of the State of New York

a judgment in the State of Ohio (R. 8).

Petitioner’s action in the State of New York was insti-

tuted on December 22, 1925 (R. 147, folio 2) and was bit-

terly contested by respondent. Said action was tried twice

in the Supreme Court of the State of New York (R. 144,

page 41 of Case on Appeal; R. 146, page 52) and it was sub-

mitted upon five occasions to the Appellate Division of the

Supreme Court of the State of New York, First Department

(R. 144, page 53; 227 N. Y. App. Div. 789; R. 146, page 784;

R. 147, page 42; R. 129), and once to the Court of Appeals

before final judgment was obtained by petitioner (R. 133-

135). In addition, three references were had (R. 144, folio

22; R. 145, pages 2-5; R. 30). The Ohio courts have predi-

cated refusal to recognize the New York judgment on the

ground of fraud (R. 176; 229, 233, 234) although the leading

case of United States v. Throckmorton, decided by this Hon-

orable Court in 1878, indicates that extrinsic fraud—possi-

bly a method of attacking a judgment—cannot be found

where an adversary trial is had and the merits of a cause

are disposed of.

The action in the State of New York was instituted by

petitioner, by reason of a fraud perpetrated by respondent,

to impress 4 trust on 250 shares of the Secor Hotel Com-

pany, an Ohio corporation, representing a one-quarter in-

terest therein (R. 12, 15-18). Petitioner’s complaint set

forth the fraudulent conduct of respondent in connection

with said stock and the resultant injury to petitioner (R.

14-17). In deciding that petitioner was entitled to the re-

turn of the stock the Appellate Division of the Supreme

Court of the State of New York stated that petitioner’s

version was amply supported by the documentary evidence

in the ease (222 N. Y. App. Div. 17); and wheu said Appel-

late Division of the Supreme Court of the State of New

York again recognized petitioner’s ownership of said stock,

after a new trial had been granted on the ground of newly

discovered evidence, that court stated that the additional

testimony was not of sufficient weight to cause the court to

change the determination, in favor of petitioner, reached

on the original appeal and for the second time rendered

judgment for petitioner (235 N. Y. App. Div. 662). This—

judgment was affirmed by the Court of Appeals of the State

of New York on July 19th, 1932 (260 N. Y. 519) and there-

after a reference was had which resulted in the award to

petitioner in the sum of $389,103.21 (R. 27-30; 130, 131).

At the time of the institution of the action by petitioner,

as plaintiff, in the Common Pleas Court, and at the present

time, the judgment in the State of New York in favor of

the petitioner and against respondent was and is a final]

jadgment in said State of New York (R. 90, 103). The

jurisdiction of the Supreme Court of the State of New

York has been conceded by respondent and'no attempt has

been made by him to impeach or set aside said judgment

on any ground in the State of New York (R. 95, 102, 167).

The petition filed by petitioner in the Common Pleas

Court, on August 20th, 1934, alleged the recovery of the

aforesaid judgment and attached to said petition was a

transcript of the judgment recovered in the State of New

York, authenticated as required by the Act of Congress

(R. 10, 27-31).

ee me

Respondent’s amended answer thereto averred three de-

fenses: (1) that the judgment sued upon was not responsive

to the issues made by the pleadings; (2) that petitioner was

not the real party in interest; and (3) that the judgment in

the State of New York was procured by-fraud practiced

upon the Supreme Court of that Staté and uron the re-

spondent, in that petitioner was not the real party in interest

and suppressed and withheld this fact from the Supreme

Court of the State of New York (R. 69, 70). By further

amendment respondent’s answer set up Section 210 of the

Civil Practice Act of the State of New York, requiring, with

certain exceptions, that every action must be prosecuted in

the name of the real party in interest (R. 73).

Petitioner and respondent waived a trial by jury in the

Common Pleas Court (R. 89). The evidence in the case was

largely documentary and petitioner relied wholly upon the

judgment recovered by him in the Supreme Court of the

State of New York, duly objecting and taking exception

to the introduction of any evidence by respondent in dero-

gation of said judgment (R. 99, 103-105, 106, 107). The

trial court found against the respondent on the first defense

(R. 166) but in favor of respondent on the second and third

defenses, thereupon entering judgment for the respondent

on December 3, 1936 (R. 167, 176, 193, 194). The judgment

of the Common Pleas Court was affirmed by the Court of

Appeals, Franklin County, Ohio (hereinafter referred to as

the Court of Appeals) and judgment was entered, with re-

spect thereto, on the 14th day of February, 1938 (R. 235).

Petitioner then appealed to the Supreme Court of Ohio (R.

238, 241) under Article IV, Section 2 of the Constitution of

Ohio, which gives that court jurisdiction as a matter of

right in cases, among other things, involving questions

arising under the Constitution of the United States; and

petitioner further moved said Supreme Court of Ohio for an

order directing the Court of Appeals to certify to the Su-

preme Court of Ohio its record for review (R. 245, 246).

Said appeal as of right was based upon the decisions of this

Honorable Court that where a claim is made upon or under

a judgment of-a sister state, it is a question arising under

the Constitution of the United States. On April 27th, 1938,

the Supreme Court of Ohio dismissed petitioner’s appeal as

of right and granted respondent’s motion to dismiss the ap-

peal as of right, so ordering and adjudging on the ground

that no debatable constitutional question was involved (R.

240). The Supreme Court of Ohio likewise denied peti-

tioner’s motion for an order directing the Court of Appeals

to certify to the Supreme Court of Ohio its record for review

(R. 240). Five of the seven Judges sitting in the Supreme

Court of Ohio rendered the aforementioned decision without

opinion (reported in XI Ohio Bar 612).

A brief summary of the facts leading up to the rendition ~

of the judgment in the Supreme Court of the State of New

York and the subsequent judgment in the Common Pleas

Court, gives full expression to petitioner’s claim that the

Court of Appeals failed to give full faith and oredit to the

judgment of the Supreme Court of the State of New York,

to the end that the Court of Appeals and the Common

Pleas Court denied to petitioner rights, privileges and im-

munities properly claimable under the Constitution and the

Statuces of the United States.

Prior to 1924 petitioner had a substantial claim against

respondent based upon respondent’s fraud in connection

with petitioner’s 250 shares of stock of the Secor Hotel

Company of Toledo, Ohio, which had been withheld from

him by respondent for many years (R. 12-17). On or about

March 31, 1924, petitioner assigned said claim to his brother,

Walter Titus, under an oral understanding with regard to

the use of any funds which might be derived therefrom in

part to pay off and discharge certain indebtedness of peti-

tioner and in part for the benefit of petitioner’s wife (R.

165; 137-139). Said assignment was in writing and absolak

upon ite face.

On or about December 1, 1925, in order to define more ef.

fectively the rights of the various interested parties in said

claim and in order that suit mi¢ht be brought thereon

Walter Titus, by an imstrument in wrifing (R. 137-139; 14

142; Petitioner's Exhibits D, E), reassigned said claim t

petitioner. This instrument, after referring to the prior

assignment and the oral understanding pursuant to which it

peta psa ott esa ger neath Are

words appointed petitioner as attorney-in-fact to ef.

‘eetuate collection of the claim. This instrument then pro

vided that any money or other property collected upon said

claim should be turned over to Walter Titus to be held and

used by him, first, toward the payment of the expenses in-

curred in the collection of the claim, second, to the payment

of one-half thereof to the wife of petitioner, third, to the

payment or discharge of certain indebtedness of petitioner,

and forth, the balance remaining, if any, to be paid to peti-

tioner. Shortly after said reassignment, suit was instituted

by petitioner on this claim in the Supreme Court of the State

of New York, and said suit resulted in the judgment herein.

before referred to (BR. 147, folio 2).

After petitioner recowered judgment’in the Supreme

Court of the State of New York, one London 1. Wallick, the

brother of respondent, made claim against petitioner for

a share in the proceeds, if any, to be realized from said

jadgment (Respondent's Exhibit 7; BR. 151-163). Said

London 1. Wallick claimed that an agreement to that effect

was made with petitioner on or about November 23, 1925

(BR. 157; 144, Folios 104, 105). Petitioner and London L

Wallick were in sharp conflict over whether any such agree-

ment hadebeen made and as to the validity and effect of any

writing @ evidence of such agreement. Approximately

nine years after the institution of suit in the State of New

York by petitioner against respondent, said London 1.

Wallick filed suit against petitioner in the Supreme Court

of the State of New York, in which he asked for an injunc-

tion pendente lite, restraining petitioner from disposing of

ony of the moneys received or collected upon said judgment

recovered by petitioner against respondent. Petitioner de-

fended said suit and submitted therein an affidavit, dated

August 17th, 1934, in opposition to the prayer for said in-

junction. Said affidavit set out at considerable length the

history of the transactions between petitioner and respond-

ent and London 1. Wallick, relative to the subject matter of

the action upon which judgment had been entéred for peti-

tioner and, among other things, petitioner's affidavit (KR.

156, 157, 162, 163; Respondent’s Exhibit 7) set forth the

following: *‘I told him (London 1. Wallick) at that time

(November 23, 1925) that I had already assigned any inter-

est in the proceeds of said action against Lou C. Wallick to

Walter L. Titus and Emilie F. Titus. * * *° The plain-

rat gee enytechagione “rigs, ~eepsmmtincteryer

Prior to my execution of the instrument of No-

vember 23, 1925 (between plaintiff and London 1. Wallick),

I assigned my interest in my claim against Lou C. Wallick

to Walter L. Titus, my brother, and Emilie F. Titus. The

plaintiff herein knew of this assignment before the instru-

ment of November 23, 1925, was executed. It is respect-

fally submitted that it does not lie within the jurisdiction

of this court to now enjoin what has already been accom-

plished."’ The words within parenthesis are petitioner's,

submitted, presently, for explanatory purposes. '

The Court of Appeals, adopting reasoning other than

that adhered to by the Common Pleas Court (R. 223, 227),

held that petitioner was not the real party in interest in

the State of New York under the written reassignment of

December 1, 1925, because that instrument constituted peti.

tioner an attorney-in-fact only (R. 225). Such holding is

contrary to the decisions of the State of New York and t

the general principles as enunciated by other courts as t

what

tion of the reassignment of December 1, 1925, that the peti.

tioner was not the real party in interest, then held that be

had suppressed and concealed this fact from the New York

court, as evidenced by the statements contained in the af

davit (RB. 229, 233). While characterizing the statements a

mere conclusions (R. 227, 228), referring to a status prior

to the commencement of the New York action, that court

In arriving at its conclusion to affirm the judgment in

favor of the respondent granted by the Common Pleas

Court, the Court of Appeals virtually disregarded the fact

that in 1929 respondent moved in the Supreme Court of the

State of New York for a new trial on the ground of newly

discovered evidence and that respondent submitted therein

an affidavit of one Gentach, sworn to on March 9, 1929, in

which certain matter is set forth with regard to an arsign-

ment by petitioner to Walter L. Titus and to petitioner's

wife (R. 234; 144, pages 115-122). Respondent possessed

knowledge in March 1929 of a prior assignment made by

petttioner, and respondent made imquiry with regard thereto

on the second trial held in 1930 (R. 146, folios 489-491).

At that time petitioner testified, on cross-examination, with

regard to the assignment. Petitioner testified that he did

have an agreement with his brother, Walter Titus, and that

it had always been a matter between them. Respondent 's

counsel proceeded to interrogate petitioner with regard

thereto but did not press the point, in his cross-examina-

tion, to the extent of ascertaining the exact character of

said assignment; and despite said evidence, putting the

respondent on inquiry as to a prior assignment of peti-

tioner’s claim, respondent made no effort to amend hi«

pleading for the purpose of setting forth a defense with

respect thereto.

Reasons Relied on for the Allowance of the Writ.

1. This Honorable Court expressed doubt in Milwaukee

‘ounty v. White Co., decided in 1935, as to whether fraud

n the procurement of a judgment will serve as a bar to

m action thereon. In any event it has never determined

hat « judgment may be collaterally attacked for the kind

{ fraud that was considered in this case. Such decisions

s it has rendered, particularly United States v. Throck-

orton, decided in 1878, indicate that a judgment is not

pptathable for intrinsic fraud and that extrinsic fraud

mnot be found where an adversary trial was had. A

termination as to whether the defense of fraud in the

rocurement of a judgment is available collaterally to a

dgment-debtor and further amplification of the meaning

extrinsic fraud are necessary to insure protection of the

ununities, with respect to judgments, set forth in the Con-

itution and Statutes of the United States, since the court«

Ohio gave consideration to a defense purely technical in

ture and ignored the adversary trial had in the State

New York.

2. The present status of the litigation between petitioner

and respondent is such that an unimpeached judgment ren-

dered in the State of New York because of a fraud per.

petrated by respondent is, from the practical standpoint

at least, uncollectible, while that same unimpeached New

York judgment is disregarded in Ohio—the State in which

respondent resides and in which his property interests are

apparently centered—on the theory that the cause of action

should have been prosecuted by petitioner’s brother. If

the present status is perpetuated by this Honorable Court's

refusal to assume jurisdiction the aforementioned anoma-

lous result would harden into grave injustice, because the

statute of limitations would bar recovery in suit insti-

tuted by petitioner’s brother. It would mean that while

the courts of New York have decreed that respondent per.

petrated a fraud upon petitioner and deprived him of

$389,000—a fraud proved by documentary evidence—re-

spondent may, nevertheless, continue ‘‘to enjoy his ill.

gotten plunder’’.

3. If petitioner were not the real party in interest and

if such fact had been concealed from the Supreme Court

of the State of New York this would not render the judg.

ment recovered by petitioner against respondent in the

State of New York impeachable in that State and the same

credit, validity and effect should have been given thereto

in the courts of Ohio.

t. The judgment recovered in the Supreme Court of the

State of New York by petitioner against respondent is

conclusive upon whether petitioner was or is the real party

in interest since that question was necessarily determined

by the Supreme Court of the State of New York in render

ing its judgment in favor of petitioner.

5. Under the instrument of reassignment from peti

tioner’s brother, Walter Titus, to petitioner, dated Decem

her 1, 1925 (R. 137-139), petitioner was and is the real

party in interest, possessing legal title to the cause of

action against respondent at all relevant times and pos-

sessing, as well, a definite beneficial interest by reason of

the fact that the proceeds of suit were to be applied in

liquidation of petitioner’s indebtedness, with part of the

proceeds payable to petitioner directly. Petitioner pos-

sessed full power to discharge respondent on respondent's

indebtedness as reflected in the cause of action. In so far

as the instrument of reassignment appointed petitioner a»

attorney-in-fact for his brother, Walter Titus, said appoint.

ment was not in derogation of the legal title and entirely

consistent therewith by reason of the fact that in non-

statutory jurisdictions an assignee is compelled to main-

tain suit in the name of his assignor.

6. Whatever statements were contained in petitioner's

affidavit of August 17, 1934 (R. 151-163), when considered

and interpreted in the light of the entire affidavit and in

the light of the circumstances under which it was given,

do not Warrant the interpretation that petitioner perpe-

trated a fraud upon the Supreme Court of the State of

New York. Said affidavit was directed specifically to occur-

rences on and the status us of November 23, 1925 (R. 227,

228). London I. Wallick was not seeking to enjoin pet-

tiomer’s interest in the judgment obtained against respond-

ent, but was seeking to enjoin the disposition of all of the

proceeds of the judgment (R. 152). In opposing the motion

for the all-inclusive temporary injunction petitioner was

entitled to every possible proper legal objection. London

L. Wallick was not entitled to the temporary injunction

because he knew of the prior assignment made by petitioner

to his brother on March 31, 1924 (R. 144, pages 115-122;

R. 156, 157) and said London I. Wallick was not entitled

to more than the alleged contract itself contemplated, that

is, an interest subject to a known prior assignment. Spe-

cifically, whatever occurred after November 23, 1925, did

not concern London 1. Wallick and as far as the latter was

concerned, petitioner was entitled to assert such facts as

would reveal to the Supreme Court of the State of New

York that London L Wallick; based upon his alleged con-

tract of November 23, 1925, was not entitled to the unusual

remedy of an injunction. Said London 1. Wallick could

not enjoin what be knew and contemplated could not be

enjoined as of November 23, 1925. His proper remedy, if

any, was indicated to him in said affidavit interposed by

petitioner, to wit, an action to set aside the assignment

under the Debtor and Creditor Law of the State of New

York. It remains, however, that in attempting to limit

said London I. Wallick in his application for a temporary

injunction no fraud was perpetrated upon the Supreme

Court of the State of New York in the action commenced

by petitioner against respondent, at which time petitioner

was the possessor of the reassignment of December 1, 1925,

which had been duly executed and delivered. The fore-

going destroys any possibility of inferring extrinsic fraud.

7. The judgment of said Court of Appeals, Franklin

County, Ohio, and the judgment of said Common Pleas

Court, Franklin County, Ohio, and tue findings and conclu-

sions thereof, are, by reason of the foregoing, in violation

of Article IV, Section 1 of the Constitution of the United

States, each of said Courts having failed and refused to

give to the judgment secured by the petitioner agains

respondent in the Supreme Court of the State of New York.

the full faith and credit required to be given said judgmen'

by said Article IV, Section 1 of the Constitution of th

United States and the Statutes of Congress enacted pur

suant thereto. Said findings, conclusions and judgment«

are contrary to the manifest weight of evidence: there is

————————— src es —~—~—~—~—

no evidence in the record to support them and they are,

farther, contrary to law, and said courts thereby denied

the title, right, privilege and immunities which your peti-

tioner claims under the Constitution and the Statutes of

Congress enacted pursuant thereto.

' @ The Supreme Court of Ohio, in determining that it

would not take jurisdiction of petitioner’s appeal as a-

matter of right, on ground that said appeal involved

no debatable consti question, acted in derogation of

petitioner's rights under Article IV, Section 2 of the Con-

stitution of the State of Ohio, and further failed to protect

and, in fact, denied the title, right, privilege and immuni-

ties which your petitioner claims under the Constitution

of the United States and the Statutes of Congress enacted

pursuant thereto and failed and refused to give full faith

and credit to the judgment secured by the petitioner against

respondent in the Supreme Court of the State of New York

as required to be given said judgment by said Article IV, .

Section 1, of the Constitution of the United States and the ”

Statutes of Congress enacted pursuant thereto.

Wueaerone your petitioner respectfully prays that this

petition for a writ of certiorari to the Supreme Court of

Ohio to review the judgment of the Court of Appeals,

Franklin County, Ohio, and the order or judgment of the

Supreme Court of Ohio in this case be granted.

Eowagp H. Trtvs,

By Tuomas |. Suenmman,

Aazonw Frayk,

His Attorneus.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 188

EDWARD H. TITUS,

Petitioner,

vs.

LOU C. WALLICK.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

The Opinions of the Courts Below.

The written opinion, dated November 30, 1937, of the

Court of Appeals, Franklin County, Ohio, is not reported

but it is set forth at length in the record on pages 220 to

234. The written opinion dated Apri! 21, 1936, rendered in

the Common Pleas Court, Franklin County, Ohio, is not re

ported, but it is set forth at length in the record on pages

166 to 176. No written opinion was rendered by the Su

preme Court of Ohio (XI Ohio Bar 612).

The written opinion dated December 2, 1927, of the

Appellate Division of the Supreme Court of the State of

New York, First Department, after the first trial, and by

virtue of which it was held that petitioner was entitled to

recover from respondent 250 shares of stock of the Secor

Hotel Company, is reported in 222 N. Y. App. Div. 17; and

the written opinion rendered by said Appellate Division

of the Supreme Court of the State of New York after a see-

ond trial, granted upon newly discovered evidence, pur-

suant to which that court’s original determination was ad-

hered to, is reported in 235 N. Y. App. Div. 662. The affirm.

ance thereof by the Court of Appeals of the State of New

York was rendered without written opinion and a report

thereof appears in 260 N. Y. 519.

No written opinion was rendered by the Appellate Divi-

sion of the Supreme Court of the State of New York when

said court affirmed an order granting a second trial on

the ground of newly discovered evidence ; nor did said Court

render written opinions when it vacated the second refer-

ee’s report and appointed Honorable Jeremiah T. Mahoney

as Referee and when it affirmed the judgment in favor of

petitioner and against respondent in the sum of $389,103.21.

Said decisions are reported in 227 N. Y. App. Div. 789; 240

N. Y. App. Div. 818; and 244 N. Y. App. Div. 789, respeec-

tively.

Jurisdiction.

1. Jurisdiction of this Court is invoked under the Judi-

cia] Code, Section 237 (b), as amended by the Act of Feb-

ruary 13, 1925, U. S. C. A. Title 28, Section 344 (b); Sec-

tion 350, Title 28 of U. S. C. A., as amended: and Revised

Statutes, Section 905, Title 28 of U. S. C. A. Section 687.

2. The date of the judgment to be reviewed, as deter-

mined by the order of the Supreme Court of Ohio, dated

April 27, 1938, adjudging its dismissal of petitioner’s appeal

to said Court on the ground that no debatable constitu-

tional question is involved, is April 27, 1938 (BR. 240).

3. The petition filed by petitioner in the Common Pleas

Court, Franklin County, Ohio, on August 20th, 1934, was

predicated entirely upon the judgment, properly authenti-

cated, recovered by petitioner against respondent in the

Supreme Court of the State of New York (R. 8; 10; 27-31).

Respondent’s answer thereto set forth affirmative defenses

presumably predieated upon exceptions to the rule that full

faith and credit shall be given by each State to the judg-

mente of a sister State (R. 69, 70, 73). The pleadings in

the cause drew into question, directly so, the full faith and

credit clause of the United States Constitution. In estab-

lishing a prima facie case at the trial held in the Common

Pleas Court, Franklin County, Ohio, petitioner relied en-

tirely upon the properly authenticated judgment recovered

in the Supreme Court of the State of New York and during

the course of the trial petitioner duly objected and excepted

to the admissibility of any and all evidence offered by re-

_ spondent in derogation of said judgment (R. 99; 103-107).

Petitioner placed full reliance upon the judgment recovered

by him in the New York Court. In refusing to enforce the

judgment in Ohio the Common Pleas Court, of necessity,

gave consideration to the constitutional question because it

subjected the New York judgment to collateral attack, and

it invoked in its conclusions an exception to the full faith

and credit clause when extrinsic fraud is established. In

addition, the constitutional question was squarely presented

to the trial court because a motion was filed by petitioner to

respondent's answer, seeking to strike it from the files as

frivolous on the ground that under the full faith and credit

clause of the Constitution the judgment became final in the

State of New York and the defenses raised by the answer

were, therefore, unavailing (R. 45-47; 101). This motion

was overruled (R. 52).

The Court of Appeals considered and passed upon the

corstitutional question, as is apparent from the language

of its opinion (R. 230-232), where the Court discussed the

authorities determining under what circumstances a judg-

meni of a sister State may be assailed despite the immunities

set forth under Article 4, Section 1 of the United States Con-

stitution. The contention that the New York judgment could

not be denied the protection of the full faith and credit

clause of the Constitution in the Courts of Ohio was again

presented to the Supreme Court of Ohio by the Assignments

of Error (R. 242). Moreover, arguments of counsel and all

briefs submitted set forth full discussion of the immunity

claimed by petitioner by reason of Article 4, Section 1 of the

United States Constitution (R. 222, 230, 231). After af-

firmance of the judgment of the Common Pleas Court,

Franklin County, Ohio, and within eighteen days thereof

and on or about the 4th day of March, 1938, petitioner duly

appealed to the Supreme Court of Ohio as a matter of right,

by reason of a debatable constitutional question (R. 238,

241) and petitioner also moved said Supreme Court of Ohio

for an order directing the Court of Appeals, Franklin

County, Ohio, to certify to the Supreme Court of Ohio its

record for review (R. 245, 246). Petitioner’s appeal as of

right to the Supreme Court of Ohio was dismissed on the

ground that no debatable constitutional question was in-

volved and petitioner’s motion for an order directing the

Court of Appeals, Franklin County, Ohio, to certify its ree-

ord for review was overruled on the 27th day of April, 1938

(R. 240). The aforementioned decisions and rulings of the

Supreme Court of Ohio, as found particularly in its entry

dismissing the appeal (R. 240), thereupon became the final

judgment of the highest State court in which a judgment

could be had. The decision of the Supreme Court of Ohio

whereby it refused to assume jurisdiction of the appeal on

the ground that no debatable constitutional question was in-

volved, constituted a decision of the case on the merits.

By reason of the failure of the Courts of Ohio to give fuli

recognition to the judgment recovered by petitioner against

respondent in the Supreme Court of the State of New York,

the title, right, privilege and immunity of petitioner, claimed

under the Constitution and Statutes of the United States,

which title, right, privilege and immunity were claimed by

petitioner at all relevant times during the proceedings in

Ohio and were dealt with by the courts of Ohio, were denied

by the Common Pleas Court, Franklin County, Ohio, the

Court of Appeals, Franklin County, Ohio and the Supreme

Court of Ohio. It is respectfully submitted that this Hon-

orable Court has jurisdiction to review the judgment ren-

dered in this cause in Ohio under the provisions of Section

344 of Title 28, United States Code.

4. The following cases sustain the jurisdiction of this

Court to review the judgment of the Court of Appeals,

Franklin County, Ohio and the order or judgment of the

Supreme Court of Ohio:

Van Huffel v. Harkelrode, 284 U.S. 225;

Green v. Van Buskirk, 72 U. 8. 307;

Crapo v. Kelly, 83 U. 8. 610;

Crescent City Livestock Co. v. Butchers’ Union, 120

U. 8.141;

Great Western Telegraph Co. v. Purdy, 162 U.S. 329;

Hancock National Bank v. Farnum, 176 U.S. 640.

ITI.

Statement of the Case.

A fnll statement of the case has been given under the

heading in ‘‘A’’ in the petition and in the interests of

brevity no repetition of the statement will be made at this

point, except to set forth that the instrument of assignment,

dated March 31, 1924, ard the instrament of reassignment,

dated December 1, 1925, by virtue of which it is established

that petitioner was and is the real party in interest con.

stitute respondent's Exhibit 8 (R. 165) and petitioner's

Exhibits D, E, respectively (R. 137-142). It may also be

pointed out that the affidavit executed by petitioner on A»

gust 17, 1934, upon which respondent relied in order to bring

about the denia! of full faith and credit to the judgment re

covered by petitioner against respondent in the Supreme

Court of the State of New York, constitutes Respondent's

Exhibit 7 (BR. 151-1664).

The relevant portions of the affidavit of Gentech, sworn to

on March 9, 1929, which affidavit contains matter with re.

spect to an assignment by petitioner to his brother and to

petitioner's wife, is set forth in Respondent's Exhibit [,

folios 345 to 350 thereof inclusive (R. 144). The Gentech

affidavit was submitted by respondent when he made # mo-

tion in the Supreme Court of the State of New York for

new trial on the ground of newly discovered evidence, and

it is this affidavit which serves to spell out knowledge on

the part of respondent of such facts which would have

enabled respondent to plead lack of capacity in the action in-

stituted by petitioner against respondent in the State of

New York.

The testimony given by petitioner, in cross-examination,

at the second trial held in the Supreme Court of the State

of New York, as a result of which respondent again ac

quired sufficient knowledge with respect to an assignment,

enabling respondent, if he saw fit, to plead lack of capacity,

is set forth in respondent's Exhibit 3, at folios 489 to 491

thereof inclusive (R. 146).

IV.

Bpecification of Errors.

The reasons relied on for the allowance of the writ, ap-

pearing in the petition (ante pages 9-13), with the excep-

J 21

tion of the second paragraph thereof, contain the Specifica-

tion of Errors now urged and are here adopted.

. *

Summary of the Argument.

Point 1. The prosecution of petitioner's cause of action

against respondent in the courts of Ohio necessarily in-

volved a constitutional question since he sought to obtain

recognition in Ohio of a judgment recovered in New York.

The disposition of the constitutional question by the courts

of Ohio was directly in derogation of petitioner's constitu-

tional rights and therefore petitioner properly seeks to in-

voke this Court's supervisory jurisdiction.

Point 11. The controlling authorities in this Court indi-

cate that parties to an action cannot, in a collateral pro-

ceeding, impeach a judgment for fraud in the obtaining

thereof.

Point HL Petitioner's judgment remains unimpeached

and unimpeachable in the State of New York and, therefore,

it was not properly subject to collateral attack in the Ohio

courts.

Point IV. Petitioner was the real party in interest in the

suit commenced by him in the Supreme Court of the State

of New York by virtue of his legal ownership of the claim

against the respondent, as well as his beneficial interest

therein.

Point V. The judgment recovered by petitioner in the

State of New York is conclusive upon whether petitioner is

the real party in interest.

Point V1. Petitioner was guilty of no fraud on the New

York court and even if he was, it did not constitute ex-

trinsic fraud and it did not justify a denial of fall faith and

credit to the New York judgment.

Powr L

The Ohio courts refused, directly so, and contrary to cos

stitutional provision, to give fall faith and credit to the

New York judgment.

It is clear that the specific question in this case is whether

the New York judgment is within the protection of the fal

faith and credit clause of the Constitution. The Ohio trial

court and the Court of Appeals denied it this protection:

and when the Supreme Court of Ohio failed to see that nos

recognition of the New York judgment involved a debatabl

constitutional question it likewise struck at the constite

tional inviolability of the judgment.

The Supreme Court of Ohio achieved this result despite

its own decision in Armstrong +. Armstrong, 117 O. S. 554.

where suit was instituted in Ohio on a Kentucky jodgmest

for alimony payable in future installments. The court beld

that the question arose ‘‘under the provisions of the Fed

eral Constitution, Article IV, Section 1°’ and granted a peti

tion in error as of right.

This Court, in determining its own jurisdiction, has held.

uniformly and repeatedly, that where suit is filed in on

State on » judgment secured in a sister State, or where

defense in one State is based upon a judgment secured in «

sister State, the question presented is one arising under thr

Constitution of the United States.

Green +. Van Buskirk, 72 U. 8. 907; 74 0. S. 139, 145.

Crapo +. Kelly, 83 U. 8. 610, 620, 621;

Crescent City Livestock Co. +. Butchers’ Union, 1%

U.S. 141, 146, 147;

Hancock National Bank +. Farnum, 176 U. 8. 640;

Great Western Telegraph Co. +. Purdy, 162 U. 8. 329:

Mutual Life Ine. Co. +. McGrew, 188 U. 8. 291, 311.

The decisions state only what is apparent, that is, that the

ing of the petition itself presents the constitutional ques-

on, a8 it is only by virtue of the full faith and credit clause

‘the Federal Constitation that a court of one State is re-

dred to enforce a judgment rendered in a sister State.

: refusing to enforce the jndgment in Ohio the lower courts

ast necessarily have considered the effect of the judgment

sder those provisions of the Constitution. No other situa-

on is possible. The mere presentation of the yudgment for

forcement raves the question.

ln addition, the constitutional question was kept in the

weground by reason of respondent's affirmative defenses

lack of capacity to sue an extrinsic fraud, the latter

ing peculiarly applicable to suits on judgments and, fur-

er, by reason of respondent's specific amendment to the

wewer that Section 210 of the New Yo: « Civil Practice Act

wred recovery in Ohio on the New York judgment.

It is well-recognized that no particular words or phrases

« necessary for the assertion of the claim of consti-

tional rights and that it is sufficient if it appears from

« record, either expressly or by clear intendment, that

ch rights were brought to the attention of the State court

ith fair precision and in due time.

Bryant +. Zimmerman, 278 U.S. 63:

St. Lowis, 1. Mt. & So. Ry. Co. +. Starbird, 243 TU. S.

592, 599.

It may be stated, parenthetically, that this Court may

roperly review the findings upon which the Ohio courts de.

rmined that petitioner was not the real party in interest

xd that he perpetrated a fraud upon the New York court

cause the findings are completely interwoven with the

nial of fall faith and credit to petitioner's judgment re-

wered in the State of New York.

Piske +. Kansas, 274 U.S. 380, 385;

Kansas City So. Ry. v. Albers Comm. Co., 222 U. 8. 573,

51.

Porwr IL

Fraud in obtaining judgment furnishes no ground fe

collateral attack.

In Freeman on Judgments (Sth Ed), pages 633 and 663,

the view is expressed that parties to an action, as distin

guished from third parties, may not attack a judgment

collaterally for fraud, except possibly such fraud whid

goes to the question of jurisdiction.

This Court has stated, clearly and unequivocally, that

f in proctring a judgment cannot be set up, by way

collateral attack, to bar recovery thereon. The prin

ciple may be expressed by the statement that a judgment

may be assailed for want of jurisdiction, but not otherwise

Christmas +. Russell, 72 U. S. 290, 303-306: cited in

Fauntleroy v. Lum, 210 U. 8. 230, 236, 237.

Hanley +. Donoghue, 116 U. 8. 1, 4:

Swmmons +. Saul, 138 U. 8. 439, 458:

Thompson +. Whitman, 85 U. 8. 457.

an cases such as United States v. Throckmorton, U.S

; Cole +. Cunningham, 133 U. 8. 107, 112, and United

mado v. Atkins, 260 U. S. 220, when this Court discussed

the question as to whether extrinsic fraud will bar enforce

ment of a judgment, a direct proceeding, attacking the judz

ment, was under consideration: while in such cases as

Webster v. Reid, 52 U. 8. 437, and McNitt +. Turner.

U. 8. 352 (referred to in Milwaukee County +. White Co.,

296 U. S. 268, 276, on the subject of extrinsic fraud), suit

was brought not to enforce a judgment, but to recover land

purchased either under an execution sale or a court decree.

In the two latter cases vacation of « judgment was not ar

objective in the action; the judgment was brought colliat-

erally before the court as evidence and it was held there

ore that, similarly, consideration might possibly be given,

sliaterally, to the subject of extrinsic fraud. It is sub-

itted that the Webster and McNutt cases have no rel-

vancy in a case such as the instant one, which involves

ait on the judgment itself.

The fundamenta! distinction between collateral! and direct

ttack, on the basi« of frand, led the Supreme Court of

finnesota in In re Melgaard’s Will, 200 Minn. 493, to state,

» discussing the Throckmorton case, that :

“Only after it has been determined, by other and ap-

propriate standards, to be direct attack, on the ground

of fraud, can the distinction between that which is

extrinsic and that which i intrinsic find the subject.

matter for its operation. In order to be open to col-

lateral attack a judgment must be void on the face of

the record, as for want of juriadiction.”’

In the light of the foregoing, the statement in Milwaukee

outy +. White Co., 296 U. 8S. 268, 276, that recovery on a

sigment may be resisted ‘‘possibly because procured by

aud’ is entirely clear and completely reconcilable with

w earlier authorities. It is expressive of the recognized

istinction between direct attack, which may be countenanced

od collateral attack, such as the instant case, which will not

+ countenanced.

Port IIL

The judgment remains unimpeached and unimpeachable

| New York and it is therefore not subject to collateral

tack in Ohio.

The law is well-settled that a judgment of « State court,

hich had jurisdiction, is entitled in the courts of other

lates to the same credit, validity and effect which it has in

State in which it was rendered.

Roche +. McDonald, 275 U. 8. 449, 451, 452.

At the outset it may be stated that the defendant bore the

burden of establishing, by a fair preponderance of the ev)

dence, that the judgment obtained by petitioner was im

peachabie in the State of New York by reason of extrinsic

fraud In other words, it was incumbent upon respondent &

show that the courts in the State of New York would ot

aside a judgment if suit therefor had been maintained by

one who was not the real party in interest. No authority

whatsoever was furnished on this point by the respondent or

by either of the lower courts in Ohio. Assumptions by «

foreign court as to what the New York court should regard

as extrinsic fraud are completely unwarranted. An (hic

court cannot assert that a New York court should consider

iteelf as having been subjected to extrinsic fraud. To dis

regard petitioner's judgment it was absolutely necessary

for respondent to establish that a New York court would

consider itself as having been subjected to extrinsic fraud—

and only adjudication on this point can be regarded as con

clusive. In summary, it is for the New York court—and

only the New York court—to state whether its judicial

process has been outraged. That statement must be found

in the litigated case or in cases of similar nature. Respond.

ent failed completely in bis efforts to meet this test.

The New York viewpoint with regard to the effectiveness

of a judgment is well stated in PAdllips +. Griffin, 236 N.Y

App. Div. 209, at p. 211:

**The question involves consideration of the ful! faith

and credit clause of the Federal Constitution. (Art. 4

Sec. 1.) A judgment of a sister state may be assailed

for want of jurisdiction over either the person or the

subject-matter but not otherwise. (Andrews ¥. Ax

drews, 188 U.B. 14; Clarke v. Clarke, 178 id. 186).""