Petition for Writ of Certiorari — Shamrock Oil & Gas Corp. v. Sheets
Supreme Court brief1941
Ask Donna
What actually matters in this document.
Text
BLANK PAGE
f e
f
‘, f
SUPREME COURT OF THE. UNITED STATES
OCTOBER TERM, 1940
"No. 727
THE SHAMROCK OIL AND GAS CORPORATION,
* Petitioner, ~
vs. |
G. OBIE SHEETS ann CHESTER SHEETS, Dome
Business as F'n1ona INDEPENDENT Or Company. ‘
\
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT AND BRIEF IN SUPPORT
THEREOF: ¥
/
Mies C. Jonson,
Joseru B. Dootey,
R. E. Uwsperwoop,
\. B.A. Witeor,
W. M. Surron,
Counsel for Petitioner.
‘ e e -_ Poe o
sy ei jie
1 . r ~ ii
. erg We &
q
ad
7
?
}
;
&
BLANK PAGE
Argument and authorities under Point I
Point Il (Referable to Rpecification IIT)...
Gian 70 AS ee a
Argument and authorities under Point
We ae oes Fig
~~ .Oonclusion’’......... Saray oie ee nd bss Given an
ex Appendix: 2... eee eee dete reas
* American Fruit Growers, Inc. v. La Roche (D. C.
SC 2008), OO FOR) DAR. ook os ieee sens:
—2272 :
INDEX.
of Petition:
A Caption ...... Etc eaebakecoed ees Viudevanes
z Statement of matter involved......... gi CNG Boe
a Basis of jurisdiction .......... SPL a A 2.4
me Questions presented ................ Papas sata |
3 Sy RPP eee eee ney See w ees ao
4 Corman TE icieng cae nd was wa enaV tn
#9 Reasons relied on for the allowance of the writ
4 Reason I (Referable to Question I)........
4 Reason II (Referable to Question I).......
: Reason III (Referable to Question I)......
4 Reason IV (Referable to Question IT)......
Z| Camden sc. cies kas eh re eeeee ects ee eees
; Brief : ene
Opinions of courts below.:...................
Grounds on which jurisdiction is vend eghin
Piahumnet OF OHNE 6 ik 55 ob i RN
Bpockhentions of: e9T0r: . .. 6. .5 0.
Specification I ............ pare wien b er es ee
Specification "SRN ates gies Sa ca-diates
Se | | Geoire Wire reneanre ys bones |
¢ ee Gk vin ck iv vdicten coneeees
Point I (Referable to Specifications I and
BAAS Sea
DNONET. ss ie URNS RE Sy: tk eae
bat _
COONAN f Oe g
feck pak fk fk feed fet
So 9 Go ho bo ht fo fe
bat pet
to 0
bo
—_
SS
17
INDEX
Page
Arthur .v. Edmunds (C. C. A. Fifth Circuit), 66 F.
Ce Ne sos oes eee ca br ee eee ee 10, 22
Baker v. Keebler (D. C. Tenn. 1939), 29 Fed. Supp. |
RN Se Be aa ee rey re 7 yy paling per aCe see |
Bankers Securities Corporation v. Insurance Equities,
Corporation (1936, C. C. A. N. J. Third Circuit),
Ap: +} | EEN emreemree ay recto rutrn 6, 15, 16
_ Bender v. The Pennsylvania Company, 148 U. S. 502,
19 BO. 6, 37 Us. Mb. O07 |... ek eee: . 10, 22
Brown v. I ronsdale (1891), 138 U. S. 389, 11 S. C. 308,
ee ke ns ee aes oo 9,18
Carson & Rand Lumber Co. v. Holteclaw (1889, C. C.
SR OB RPP a re pete tie Taare ner 6, 16
Chambers v. Skelly Oil Co. (1937, C. C. x Kan. Tenth
Circuit), 87 F. (2d) 853..... eens prea Ce gen rere 6, 16
Chicago, M. & St. P. Ry. Co. v. City of Bovncor (D. C. |
Towa 1922), 283 Fed. 824.......... reap auth bade ee
Consolidated Textile Corp. v. Iserson (1923 D. C.
ap ee Se Beer ery ere, may 6,16
Ellis v. Peak (1938 D. C. Tex.), 22 Fed. Supp. 908... 19
Employers Reinsurance Corp. v. Bryant (Note 9),
299 U. S. 374, 57 8. C. 273, 81 L. Ed. 289........ 5
Evetts v. Peoples’ Life Insurance Co. (D. C. Tex.
SO he ee Ce ts hooks fein hs eee 17
Gay v. Ruff, 292 U. S. 25, 54 8. C. 608, 78 L. Ed. 1099. 5,11
Glover Machine Works v. Cooke-Jellico Coal Co.
(D, C. Ky. 1915), 222 Fed, 531...... otha ys 17
Groveville Sales Corp. v. Stevens (D. C. N. J. 1936) —
16 Fed. Te. GER. 8203. Sa eR ease. 17
Habermel v. Mong (1929 C. C. A. Sixth Circuit,
| Tenn.), 31 F. (2d) 822 (writ of certiorari denied
‘ ___ in 280 U. S. 587, 74.L. Ed. 636, 30 S. C. 37)... .. 8, 19, 20
Hagerla v. Mississippi River Power Co. (1912 D. . |
Iowa), 202 Fed. 771 .......: POE EOE PES 18,7 6, 8, 16, 20
Hamsen v. Pacific Coast Asphalt Cement Co. (1917
D.C. Onl), S68 Pod. BOG, Bebe ee eis 6, 16
p Houlton oe Bank v. American Laundry Machin-
re ery Co. (D. C. Me. 1934), 7 Fed. Supp. 858...... 17,19
: / Illinois Central Ry. Co. v. A. Waller & Co. (C. C. Ky.
1908), 164 Fed. 358-00... 0. eee eee eee bee. a Ge
‘ ‘
iS —_ ‘ ;
see HE CLERK, ALE SOE RINSE PSOE NSCOR ANS RARE AEE IISA MT
INDEX’ ps | iii
Indiana Mountain Jellico Coal Co. v. Asheville Ice & -
Coal Co. (C. C. N. C. 1905), 185 Fed. 837...... 17
W. S. Kirby v. American Soda Fountain Co, (1904),
194 U. S. 141, 48 L. Ed. 911, 24 8. C. 619: ........ 9,15
Klein v. Wilson & Co. (C. CO. A. Third Cir.), 7 F.2d)
5 2 RE Diag aes a a ha Ue dy 10, 22
Lockhart v. New York Life Insurance Co. (C. C. A.
Fourth Circuit), 71 F. (2d) 684................ 10, 22
Mason City & Fort Dodge Ry. Co. v. Boynton (1907),
204 U. S. 570, 27 S. C. 321, 51 L. Ed. 629....... 9, 18, 19
McKown v. Kansas &é Texas Coal Co. (C. oer: eae
S008): 708 Fed 6 CARs 17
Merchants Cotton Press & Storage Co. y. The Insur-
ance Company of Nor. America (1894), 151 U.S. |
368, 385, 14 S. C. 367, 38 L. Ed. 195, 204..... ante Meee
M erchants Heat & Light Co. v. James B. Clow & Sons i:
(1907), 204 U. S. 286, 51 L. Ed. 488, 27S. C. 285.. 9,15
Mohawk Rubber Co. of New York v. Terrell (D. ae
MMe, 1990), 13 F.. (20) SO. icc len etree e / 017
Niles-Bennett-Pond Co. v. Iron Moulders Union
(1920), 254 U. S. 77, 41 S. C. 39, 65 L. Ed. 145... 9,19
O’Neill Bros. v. Crowley (1938 D. ©. S. C.), 24 Fed.
NN POR. five kup heya epeees an es _.... 6,7, 8,17, 20, 21
Pierce v. Desmond (1926 D. C. Minn.), 11 F, (24) 327,
6, 8, 16, 20
Price & Hart v. T. J. Elis & Co. ast. ©. Ark),
19) Ved: 408 05 SS ES 6, 8, 16, 20
Removal Cases (1879), 100 U. S. 457, 25 L. Ed. 593.. 9,18
San Antonio Suburban Irrigated Farms v. Shandy
(1928 D. C. Kan.), 29 F. (2d) 579........ 7, 8, 17, 20, 21
Venner v. Great Northern Ry. Co. (1908), 209 U. S.
i Ge OS G. OC. SIR, 06 ts: We. GO. ee ec iceces, 9,19
Waco Hardware Co. v. Michigan Stove Co. (C. C. A.
Fifth Cir: 1899), 21 Wed. 260... 2. ae cee 17
Walcott v. Watson (1891 C. C. Nev.), 46 Fed. 529,
68, 16, 20
—Ward-v-Congress Construction Co. (1900 C. C. A
Seventh Cir.), 99 Wed: 006... 2... ced 8, 20.
~ West v. The City of Aurora (1867), 73 U. 8S. 193, a
6 Wall. 189, 18 L. Bi, SY9.. 0:3. i crv reece 8, 19
+
oe
“. s
t
2 ~ty
ne
Ras
af
ey
x
ot
ag
ee
eet)
.
Vee eee
Ag a Rina ages
pane TM A —
De TES Tt ee aes es ee
ee ee ee ee
wos Se oe
: =
iv : _ ‘INDEX
Page
Wichita sie Co. v. City National Bank (1938
C. C. A. Tex. Fifth Cir.), 95 F. (2d) 671, 97 F.
(2d) 249 (1937 D. C. Tex.), 18 Fed. Supp. 609
(affirmed without reference to question of removal
jurisdiction 306 U. S. 103, 83 L. Ed. 515, 59 S. C.
a0 ou BUN 04 CGA EK CORSA ER ea oA ds oa Fe haw 8% 7, 16
Wilson v. Oswego Township (1894),. 151 U. S. 56, 63,
Ty Re ek bak ko We are oe ee 9,18
Zumbrunn v. Schwartz (1927 D. C. Ind.), 17 F. (2d)
BOP ee ee rs 6, 8, 17, 20
; Statutes Crrep.
Act of Sept. 24, 1789 (c. 20, 1 Stat. 73)............ 19
Act of Mar. 3, 1875 (c. 137, Sec. 2, 18 Stat., 470) .. 18
Act of Mar. 3, 1887 (c. 373, 24 Stat. p. ae 7,8, 15
Act of Aug. 13, 1888 (c. 866, 25 Stat. p. 433)... .... 7, 15, 18
Judicial’ Code, Act of Feb. 13, 1925 (c. 229, Sec. 1,
43 Stat. 938 (28 U.S. C. A. Sec. I oie 's Kana 4,11
_ Sudicial Code, Sec. 28 (28 U. S. C. A., Sec. 71),
2, 3, 4, 5, 6, 7, 8, 13
Article 3736, Revised Civil Statutes of ‘Texas, as :
amended 1931 (Note 1 Appendix).............. 24 ee |
Text Books Crrep. |
. Annotation Note 668, Title 28, U. S. C. A., Section 71. 17
Texas Sarispradenee, Vol. 38, P. 292, Section 6.. 14
ee cee TR SS ep mee
FF
—_, o oo
Ee aeaeEEeEeee WLAN ANE MEE SPIE EEE LEM LS NIT ORE TE ER POPE LLY NLT OT
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940 7
No. 727 |
THE SHAMROCK OIL AND GAS CORPORATION;
Petitioner,
vs.
G. OBIE SHEETS ann CHESTER SHEETS, Dorxe
Busrvess as F'riona InpDEPENDENT On, Company.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT.
To the Honorable the Chief Justice and the Associate
Justices of the Supreme Court of the United States:
Your petitioner, The Shamrock Oil and Gas Corpora-
tion, a corporation organized under the laws of the State
of Delaware, rays this Court for the issuance of a writ of
certiorari to feview a final judgment of the United States
Circuit Court of Appeals for the Fifth Circuit, entered on
lg
ee eee eee ee ee Fee
— —
a
-— = et — 3
ema tegen.
ee ee
Gq
EEE TIES BERN TPES PEST
e Trey pi
a ae
we ft rere te
RRS STITT.
ata, 4 RRA eee
2°
the 6th day of December, 1940, reversing a decree of the
United States District Court for the Northern District of
Texas, Amarillo Division, and remanding this case to the
United States District Court for the Northern District of
Texas with instructions to remand same to the State
Court from which it was removed.
Statement of the Matter Involved.
The matter involved herein is a question of removal
jurisdiction and the proper construction of the removal
statute, being Section 28 of the Judicial Code as Amended
(28 U. 8. C. A. Section 71). It was held by the Honorable
Circuit Court of Appeals for the Fifth Circuit (R. 127) that
the petitioner was not entitled under the removal statute
as the cross-defendant in a counterclaim or cross-action
to remove the counterclaim to the Federal Court, the basis
of such, decision being that since the petitioner had been
the original plaintiff, it was not a defendant within the
meaning of the statute referred to..
The petitioner, a Delaware corporation, sued the respond-
\—@nts in the District Court of Potter County, Texas, on an
account for petroleum products sold respondents in the
‘amount of $5,390.42 (BR. 1 to 60). On the filing of a plea of
privilege by respondents (R. 61) the venue of such suit
was transferred to the District Court of Parmer County, ©
Texas (R. 62-63). The respondents filed their original
answer in the District/Court of Parmer County, Texas (R.
_ 64), and in such answer filed their cross-action or counter-.
claim (R. 67-68), wherein respondents, citizens of Texas,
sought to recover damages in amount of $7,200.00 for the
alleged breach of contracts relative to the leasing of an
automobile truck, which contracts were separate, distinct
and unrelated to the indebtedness originally sued upon. _
Petitioner, as defendant in the cross-action, filed its peti-
tion for removal and reméved-the cause to the United States
\
District Court for the Northern District of Texas, Amarillo
Division (R. 69 to 76), on the grounds (R. 69 to 70) that the
cross-action presented a separate and distinct suit by re-
spondents, citizens of Texas, against petitioner, a citizen of
Delaware, for $7,200.00 damages. Respondents moved to
remand (R. 76), which motion was denied (R. 80), and an
unreported opinion of the Trial Court was rendered (R.
108) in open court. After trial on merits and judgment
for petitioner was rendered on both the original suit and
counterclaim (R. 81), respondents filed a motion for recon-
sideration of their motion to remand (R. 85 to 93), which
. motion was overruied by the Trial Court (R. 93). Re-
- gspondents appealed to the United States Circuit Court of
Appeals for the Fifth Circuit from the order overruling
P
_
Le A NRE ESN ONCE ee nae a ee. INT RNE EEL
¢
their motion to remand and from the judgment of the court
overruling respondents’ motion for a reconsideration of
the court’s order overruling motion to remand (R. 103 to
107). :
- The United States Cireuit Court of Appeals entered its
judgment on the 6th day of December, 1940, reversing
the judgment appealed from and remanded this cause to the
‘Trial Court with instructions to remand same to the State
Court from which it was removed (R. 134). An opinion in
this cause was filed by the Circuit Court of Appeals on
the 6th day of December, 1940 (R. 127), 115 F. (2d) 880,
in which it was held that Section 28 of the Judicial Code
as Amended (28 U.S. C. A. Section 71) does not permit the .
removal of a cross-action or counterclaim for more than
Pet ,000.00 involving the alleged breach of contracts distinct
aud separate from the indebtedness originally sued upon,
at the instance of a non-resident cross-defendant, if such
party had been the original plaintiff,in the State Court. The
petitioner filed its petition for rehearing on the 26th day of
Déceniber, 1940 (R. 136), which petition was denied by a
judgment entered on the 14th day of January, 1941 (R. 145).
29 Z .
)
ee
— weed vee se
=a r , a ‘i , + . » =
digeietee’ emesiniiiadicnah Cuaiaiad pe ee ee
2 -
o °
a ee
- 7
= Pee Se Oe ae
Basis of Jurisdiction.
"The judgment scught to bo reviewed is the judgment of
the United States Circuit Court of Appeals for the Fifth
’ Circuit rendered on the 6th day of December, 1940 (R. 134)
reversing the judgment of the United States District Court
- for the Northern District of Texas, Amarillo Division, and
remanding this case to such court ‘with instructions to re-
‘ . mand same to the State Court from which it was removed.
The nature of the case presented is fully set out in the
preceding statement of the matter involved, but is one
involving a question of removal jurisdiction and the proper
construction of Section 28 of the Judicial Code as Amended
(28 U. 8. C. A. Section 71). The unreported oral opinion
(R. 108) of the District Judge for the United States District
Court for the Northern District of Texas reflects the judg-
| ment of the Trial Court to the effect that this cause was
properly removed to the Federal Court by the petitioner.
The opinion of the United States Circuit Court of Appeals
for the Fifth Circuit filed on the 6th day of December,
1940 (R. 128) 115 F. (2d) 880 reflects the decision of said
“court to be that Section 28 of the Judicial Code does not per-
mit the removal of this case by the petitioner from the
State Court to the Federal Court. Petition for rehearing
was filed on the 26th day of. December, 1940 {(R. 136) and
same was denied on the 14th day of January, 1941 (R. 145).
Petition for writ of certiorari is pronase herein on the
30th day of January, 1941. iy
- The jurisdiction of this Court is invoked under Section
240(a) of the Judicial Code as Amended by the Act of
_ February 13, 1925, c. 229, Section 1, (43 Stat. 938) (28 -
U. S. C. A. Section 347). The jurisdiction of this honor-
able Court under such statute to review by certiorari a
judgment of a Circuit Court of Appeals remanding a case
to the District Court with instructions to remand to the
State Court from which it was removed, such as is here
am > -
REE he a A IIOIAR PIO MS RAIS eee See ee eee 4
MENS SPE 7
5
involved, was sustained in Gay v. Ruff, 292 U.S. 25, 54S. C.
608, 78 L. Ed. 1099. Such holding was referred:to and re-
affirmed in Employers Reinsurance Corporation v. Bryant,
(Note 9) 299 U. S. 374, 57 S. C. 273, 81 L. Ed. 289.
Questions Presented.
| ees
The primary question presented is:
Whether a counter-claim or cross-action, set up by
resident defendants in a State Court seeking damages
against the original non-resident plaintiff in the amount \
of $7,200.00 for the alleged breach of a separate and
distinct contract from the $5,390.42 indebtedness due
on open account and originally sued upon, is a suit .
which is removable by the defendant in the cross-action
> (petitioner), who had been the original plaintiff, on the
grounds of diversity of citizenship under Section 28
of the Judicial Code as Amended Aged S. C. A. Sec-
tion 71)?
IL.
A second question is presented in this case, but petitioner ~
does not claim that this question alone would warrant the
granting of a writ of certiorari, but same is presented for
the Court’s consideration and so that it may be papery
preserved:
Whether the order or judgment of the Trial Court
_ overruling respondents’ motion for a reconsideration =
of the Trial Court’s previous order overruling motion
to remand, which motion to reconsider was filed after
final judgment on merits had been entered, is such a
final judgment as would authorize the appeal by re- ‘Bit
spondents to the United States Circuit Court of Ap- E
peals, Fifth Circuit?
eos a
Reasons Relied on for the Allowance of the Writ.
Reasons I to I hereafter are referable. to Question No. L
Reason ie
The judgment and decision of the Circuit Court of Ap-
peals herein, to the effect that the petitioner was not en-
titied to remove the cross-action ‘of respondents to the
Federal court, even though the cross-action admittedly
sought affirmative relief for damages totaling $7,200.00
_ for breach of contracts unrelated to the original suit, for
the reason that Section 28 of the Judicial Code as Amended
(28 U. 8. C, A. Section 71) grants the right to remove a’
suit to the original defendants only, and that such a cross-
action was not a suit within such statute, conflicts with
NN prior dedisions (hereafter cited) of other Circuit Courts
- of Appeals and with a-prior decision of the Circuit Court -
of Appeals for the Fifth Circuit. The Circuit Court of
_ Appeals in its opinion hérein acknowledges that its decision
and holding upon such point is in conflict with the following
prior decisions of other Circuit Courts of Appeals and Dis-
trict Courts (R. 129-130): Bankers Securities Corporation
v. Insurance Equities Corporation (1936, C. C. A. N. J.
Third Circuit) 85 F. (2d) 856; Chambers v. Skelly Oil Com-
pany (1937, C. C. A. Kans. Tenth Circuit) 87 F.. (2d) 853; .
Carson & Rand Lumber Co. v. Holtzclaw (1889, C. C. Mo.),
39 Fed. 578; Walcott v. Watson (1891, C. C. Nev.), 46 Fed,
-§29; Price & Hart v. T. J. Ellis & Co. (1904, C. C. Ark.},
129 Fed. 482; Hagerla v. Mississippi River Power Co. (191?.
D. C. Iowa), 202 Fed. 771; Hansen v. Pacific Coast Asphalt
Cement Co. (1917, D. C. Cal.), 243 Fed. 283, 284; Consoli-
dated Teatile Corporation v. Iserson (1923, D. C. N, Y.),
- 294 Fed. 289; Pierce v. Desmond (1926, D. C. Minn.), 11 F..
(2d) 327; Zwmbrunn v. Schwarte (1927, D. C. Ind.), 17 F.
(2d) 609; waded ure. v. — (1938, D. C. 8. C. Jn
Fed. Supp. 705; San Antonio Suburban Irrigated Farms
v. Shandy (1928, D. C. Kans.), 29 F. (2d) 579. Petitioner
further submits that the holding of the honorable Circuit °
Court of Appeals for the Fifth Circuit in the case of
: lichita Royalty Company v. City National Bank (1938,
- 60 A. Tex. Fifth Circuit) 95 F. (2d) 671,97 F. (2d) 249,
(1937, D. C. Tex.) 18 Fed. Supp. 609 (affirmed without .
_ reference to question of removal jurisdiction, 306 U. 8. 103, ae
83 L. Ed. 515, 59 S, C. 420), conflicts with the decision and -
_ holding of the Circuit Court of Appeals in this case, though
same was sought to be distinguished by the Circuit Court
of Appeals hereirfrom the instant case on the grounds that
the basis for a therein was a Federal question and
iz not diversity of
tizenship. rage
. Reason II. ii.
- The honorable Circuit Court of Appeals has decided an”
important question of Federal law involving the proper
construction of a Federal statute, to-wit, Section 28 of
Judicial Code as Amended (28 U. S. C. A. Section 71),
which question has not been, but should be, settled by the
Supreme Court. Since the enactment of Section 28 of the
Judicial Code (28 U. 8. C. A. Section 71) in substantially
its present form by the Judiciary Acts of 1887 and 1888
(Act of March 3, 1887, 24 Stat., Ch. 373, p. 522; Act of
$ August 13, 1888, 25 Stat., Ch. 866, p. 433) more than twenty- :
five reported cases have passed upon the question of the — .
Tight of a defendant in a cross-action or counter-claim filed
in a State Court secking affirmative relief to remove such
counter-claim or cross-action to the Federal Courts. These Ne
cases, many of, which are cited under Point I of brief which a
follows are in hopeless conflict and the ho therein - eae
| diametrically opposed upon such question. e Supreme
Court of the United States has not passed upon such ques-
tion under the act of 1887 (Act of March 3, 1887, 24 Stat.,
f
of,
‘ baba
"ee
a
BS
ee
5 ‘
ee
:
ms
Soars tents
ass SAY ROS SPREE SRE OG
StS age Se aE Le ee ee ey ee ene Ree
meen, arerenane
8
Ch. 373, p. 552) and its amendments. The case of West v.
Aurora City (1867),.73 U. S. 193, 6 Wall. 139, 18 L. Ed.
. 819, decided under tle Judiciary Act of 1789 (Act of Sep-
tember 24, 1789, c. 20, 1 Stat. 73) is cited by the Circuit
Court of Appeals for the Fifth Circuit in the instant case
as being controlling on the question presented, and on the
construction of the present removal statute. In so holding
the decision of. the honorable Circuit Court of Appeals
conflicts with the decisions in the following cases in which
it was held that the case of West v. Aurora City, supra, is
not applicable to the present removal statute because of
difference in the language of the two acts, or that such.
decision is distinguishable upon other grounds upon the —
question here presented. The cases so holding are: Haber-
mel v. Mong (1929, C. C. A. Sixth Circuit, Tenn.), 31 f. (2d)
822 (writ of certiorari denied Habermel v. Mong [1929] 280
U. S. 587, 74 L. Ed. 636, 30 S. C. 37); San Antonio Suburban
Irrigated Farms v. Shandy (1928, D. C. Kan.), 29 F. (2d)
‘ 579; O’Nedl Bros. v. Crowley (1938, D. C. 8. C.), 24 Fed.
Supp. 705; Zumbrunn v. Schwartz (1927, D. C. Ind.), 17 F.
(2d) 609; Price & Hart v. T. J, Ellis & Co. (Cir. Co. Ark.
1904), 129 Fed. 482; Ward v. Cousvaen Construction Com-
pany (1900, C.&. A. Seventh Circuit), 99 Fed. 598; Pierce
v. Desmond (1926, D. C. Minn.), 11 F. (2d) 327; Hagerla v.
Mississippi River Power Company (1912, D. C.. Iowa), 202
Fed. 771; Walcott v. Watson (1891, Cir. C. Ney.), 46 Fed.
529. The Circuit of Appeals recognizes in its dpinion
(B. 132-133) that sych conflict exists.
Reason Til.
‘The honorable Circuit Court of Appeals, in holding, as
it did in the instant case, that the petitioner, having been
' the original plaintiff in the State Court, was not entitled
under Section 28-of the Judicial Code as Amended (28
‘U. 8. C, A. Section 71), to remove the cross-action filed by
a”
9
.the respondents to the Federal Court, has decided a Federal
question involving the proper construction of such statute
in a way that conflicts with the applicable decisions of the
Supreme Court in the cases of Merchant’s Heat and Light
Company v. James B. Clow & Sons (1907) 204 U. 8. 286, 51
L. Ed. 488, 27 S. C. 285, and W. 8. Kirby v. American Soda
Fountain Company (1904) 194 U. 8. 141, 48 L. Ed..911, 24
S. C. 619, which cases recognize that when an original de-
fendant files a cross-action or counter-claim the original
defendant becomes as to such eross-action the actor or plain-
tiff and the original plaintiff becomes as to such cross-
action or counter-claim the defendant. The opinion and
holding of the Circuit Court of Appeals herein likewise con-
flicts with the following applicable decisions of the Supreme
Court, which hold that under the Judiciary Act of 1887 and
1888 in determining the right of removal the parties should
‘be realigned in accordance with the matter in dispute, and
without regard to the position they occupy in the pleadings
as plaintiff or defendant: Removal Cases, (1879), 100 U. 8.
457, 25 L. Ed. 593; Brown v. Ironsdale, (1891), 138 U. S.
389, 11 S. C. 308, 34 L. Ed. 987; Witson v. Oswego Township
(1894), 151 U. S. 56, 63, 14.8. C. 259, 38 L. Ed. 70; Mer- .
chants Cotton Press & Storage Co. v. The Insurance Com-
pany of North America (1894), 151 U. 8. 368, 385, 14 8. C.
367, 38 L. Ed. 195, 204; Mason City & Fort Dodge R. R. Co.
v. Boynton (1907), 204 U. S. 570, 27 S. C. 321, 51 L. Ed.
629; Venner v. Great Northern Railway Company (1908),
209 U. S. 24, 28 8. C. 328, 52-L. Ed. 666; Niles-Bennett-Pond
Co. v. Iron Moulders Union (1920), 254 U. 8. 77, 41'S. C.
39, 65 L. Ed. 145.
Reason IV hereafter i is referable to — No. T
3. Ee Reason Iv.
In entertaining the REE ¢ respondents from an order
of the District Court overruling a motion for reconsidera-
%
?
a
.
¢ ‘»
|
‘ e hi oat RE aie m
Ee RS [ee Se atacaneaal Sent aie eaeienipean aaah
g
tO ws vet =
Risinak: Seadace teen curt! aterm tele nn SOS
DES SE I a eS
abe
a t
i : |
ae
Va | 10
Va tion of motion to remand, which motion to suiciaamtades
it _ filed subsequent to the rendition of judgment on the merits
1 ‘in the Trial Court, the Citeuit Court of Appeals held in
Wi effect that: such order of the District Court was a final |
i i F - judgment from which an appeal might be taken to the —
. Circuit Court of Appeals. Such action upon the part of the
_ honorable Circuit Court of Appeals is in conflict with the
can ‘not be taken from an order overruling a motion to
_. vemand: Bender v. The Pennsylvania Company, 148 U. S.
. . 602,13 S: C. 640, 37 L. Ed..537; Arthur v. Edmunds (C. C, A.
Fifth Cireuit) 66 F. (2d) 21; Lockhart v. New York Life
Insurance Co. (C. C. A. Fourth Circuit), 71 F. (2d) 684;
Klein v. Wilson & Co. AC. C. A. Third Circuit), 7 F. (2d)
its jurisdiction to review by writ of certiorari the judgment
of the Cireuit Court of Appeals to the end that an important
question of Federal law involving the’ construction of a
Federal statute relating to removal jurisdiction be settled
and an end be put to the conflict in the. decisions of the
Fe : | various Circuit Courts of Appeals and other inferior coufts.
Respectfully submitted,
R. C. Jonson,
JoszPxH B. Dootey,
R. E. Unperwoop,
- BR. A. Wuson,
W.M.Sutros,
All of Amarillo, Texas, —
Attorneys for Petitioner.
holdings in the following cases to the effect that an appeal -
| te re : Conclusion $$$.
it Wherefore, for the reasons herein advanced, it is re-
a a spectfully submitted that the Supreme Court should exercise
es | ) L.
BRIEF IN SUPPORT oF PETITION FOR WRIT OF
: eee
Opinions of Courts Below.
The unreported oral “opinion of the United States Dis-
trict Court for the Northern District of Texas, rendered in
open court, when motion to ‘remand was overruled, ap- ae no
pears at Page 108 of Record.. 3
The opinion of the United States Circuit Court of Ap-_
__peals, Fifth Circuit, rendered on December 6th, 1940, ap-
pears at Page 127 of Record and is reported in 115 F. (2d)
at Page 880.
_ Grounds on Which J urisdiction is Invoked. P
A statement of grounds of jurisdiction is contained in the
petition. “The judgment of the United States Circuit Court
of Appeals (R. 134) reversed the judgment of the District 3 ;
Court and remanded this case to the District Court with in- gos ie. Le ‘
structions to remand to the State Court from which it-was :
removed. Such judgment of the Circuit Court of Appeals §=-—s_|
was entered on the 6th day of December, 1940 (R. 134). A
petition for rehearing was filed December 26, 1940 (R. 136)
and same was denied January 14th, 1941 (R145). Petition
for certiorari is presented herein on the 30th day of Janu-
ary, 1941. Jurisdiction is invoked under Section 240 (a) of
the Judicial Code as Amended by Act of February 13, 1925,
c. 229, Section 1 (43 Stat., 938; 28 U. 8S. C. A. Section 347).
The case of Gay v. Ruff , 292 U. 8. 25, (eh EPs 548. C. we! Beare
608, supports jurisdiction. pe |
Statement of Case. . eS
“k isieciakt’s| te tats eed Ga
“Statement of \iatter Involved’’ in the foregoing petition, = = = = = —
Pages 2 to 3, Mie ~~ A -
aieleaes 3 sr ecroree magpieeracomeeente ete,
a a
ween eee
12
‘emphasize: that the verified account originally sued upon' :
by petitioners (R. 1 to 60) was not denied under oath by *
respondents in their original answer (R. 64 to 68), and that
the correctness of the plaintiff’s account sued upon was
thereby admitted under Article 3736, Reyised C Civil Statutes
of Texas, a8 Amended 1931 (Note 1, Appendix); that the
cross-action filed by respondents against petitioner (R.
67-68) was found by the trial court in its opinion (B. 108 to
117) and the Cireuit Court of Appeals in its opinion (R. <
127 at 127, 128 and 129) to be a counterclaim for damages
in excess of $3,000.00 for breach of contracts unrelated to
the indebtedness sued upon originally by the petitioner, a
citizen of Delaware. It is true that the respondents in
their answer allege defensively that the, products admit-
tedly furnished by petitioner to respondents were furnished
under an agreement violating the Texas Anti-Trust Stat-
_utes, and by such answer respondents sought to defeat all
liability upon plaintiff’s account (R. 64 to 67), but the cross- |
action prayed for $7, 200.00 damages (R. 67-68) for breach
of separate contracts. In the motion to remand filed by
respondents in the Trial Court, respondents admitted (R.
79) that the petition for removal was filed in time required
by law, that is, before the time petitioner was — to
. answer the cross-action. oi
f
‘Specifications of Error.
3 naan I. ; : nae
The Honorable Circuit Court of Appeals for the Fifth
Circuit erred in remanding this case and in holding that the
- eross-action filed by the respondents in the District Court
of Parmer County, Texas, in which respondents, citizens
of Texas, sought damages totalling $7,200.00 against peti- -
tioner, a citizen of Delaware, for the alleged breach of con-
tracts separate and distinct from ~ vr originally
Py
"aval pik
Summary:
foe
13. : /
sued upon, was not a suit removable by the petitioner as a |
defendant, for the reason that such decision and holding
‘ incorrectly: egies action 28 of the Judicial Code as
Amended (28 U. 8. ‘A. Section ). ‘and is contrary to the-.
‘weight of ee
Il,
The’ Honorable Circuit Court of Appeals erred in re-
| manding this case and in holding that petitioner, a citizen of
Delaware, was not entitled under the provisions of Section
“98 of the Judicial Code as Amended, as defendant in the
cross-action, to remove the cross-action or counterclaim
filed by respondents, citizens of Texas, in the District Court
of Parmer County, Texas, from such State Court to the’
Federal Court, for the reason that such holding and decision —
improperly interprets such statute and is| contrary to the
weight of authority.
“1.
The Honorable Circuit Court of Appeals erred in enfer-
_ taining the respondents’ appeal to such court fron/ the
order -of the Trial Court overruling respondents’ motion
to reconsider their motion to remand, filed after judgment
on the merits, for the reason that such order or decree was —
not a final judgment from which an appeal lies.
: :
F -
Point E es
The Circuit Court of Appeals orjed | in holding that the
_ eross-action of respondents was not a suit that could be
removed by petitioner as a defendant under the Removal es
Act. pases
_Referable to Question I ont Realons I, HW, and aut in
| Petition, and Specifications of Error x and Tj in Brief:
\ } y
?
A ty i “
; A. Hi / ‘
Ts a j > }
set | | ae se
7A is : 4 . ° . ‘
) eae Ss Baer: sy
i
{
a
*
LANE ESLER BIDE PRD Re PER NEN VE ALOE GA BS pH SIE
» ~ . 5
x ‘
. . -
;
— ton — ‘ .
we tl ee i FF ge ne een rr ad alr pon oh pe
SRE RETE RELI
Briiediny
a Ck
7 For brevity and to avoid being repetitious, the Argument
under Specifications I and II will be combined under this
Arguil@nt and Authorities under Powwt I:
The relevant portion of the statute involved herein, being
a part of Section 28 of the Judicial Code as Amended (28
U. 8. C. A. Section 71) is as follows: . ea8
‘¢ Any other suit of a civil nature, at law or in equity,
of which the district courts of the United States are
given jurisdiction, in any State court,:may be removed
into the district court~of the United States for the
proper district by the defendant or defendants therein,
being non-residents of that State.’’ 3 |
Se "The decision and hdiding of the Circuit Court of Appeals
herein was to the effect that the counterclaim of the respond-
‘ ents was not a suit within such statute and the petitioner
herein was not a defendant within such statute. The cross- ©
action or counterclaim filed by the respondents sought af-
firmative relief for more than $3,000.07 on a matter un-
. related to the verified account sued upon by petitioner.
Under Texas practice such cross-action or counterclaim
_ isasuit. The rule in Texas upon such subject is well stated
in 38 Texas Jurisprudence, Page 292, Section 6, as follows:
‘¢A eross-bill or cross-action, or a plea in reconven-
- tion, or a set off or counterclaim is, or occupies the same
position as, an independent suit by the defendant in the ©
original suit against the plaintiff. As to the matter
__.. ‘asserted in his cross-action or plea the defendant is the
actor or- plaintiff; and he has the rights and responsi-
while the plaintiff in the original
bilities of a plaintiff ;
suit is a defendant, with the privileges wghelosuiginzes
*»
In other words, each party is plaintiff in res tohis ~
ees own particular grievance and each party is defendant
in respect to the grievance of the other. Theré are two
o
Saal bia enecleck Setlan
15
cases which may be tried together in the same proceed-
ing or it has been said two actions are really combined
_____into-ene.”” 5
Such text is amply supported by stitorities cited in such
text.. The Supreme Court of the United States has recog- |
_ nized that the defendait in a eross-action upon the filing of
a cross-action or counterclaim becomes the actor and is as to
such cross-action the plaintiff or actor. Merchants Heat « and
’ Light Company v. James B. Clow & Sons (1907) 204 U. 8S.
286, 290; 51 L. Ed. 488, 490;.27 S. C. 285; W. S. Kirby v.
American Soda Fountain Company (1904), 194 U. 8. 141,
48 L, Hd. 911, 248.C.619.
Since the first enactment of Section 28 of the Judicial
Code in substantially its present form in 1887, and amend- __-.
ment in 1888 (Act of March 3, 1887, ¢. 337, fos, 4 24 Stat.
552; Act of August 13, 1888, c. 866, Sec. 1, 24 Stat. 433)
more than twenty-five reported cases in the District Courts
or Cireuit Courts of Appeals have passed upon the right
of a defendant i in a cross-action seeking affirmative relief
to remove such cross-action or counterclaim to the Federal
Court. The decisions upon such question are in hopeless
conflict. By far the greater number of cases and petitioner ; |
submits the better reasonéd cases, uphold the right of an j .
original plaintiff to remove to the Federal Court such aes Be
cross-action or counterclaim seeking affirmative relief under
the statute above quoted. There are a few cases which deny
- the right to so remove. ~These cases are in the minority,
however, and were decided in many ‘instances before the _ et
beginning of the present: century. The Circuit Court of
' Appeals herein in its opinion (R, 129-130) recognized that
the majority of the decisions were contrary to the decision —
of the Circuit Court of Appeals kerein. The rule that peti- ‘é
-tioner contends governs the ultimate decision in this case
is briefly stated in Bankers Securities O rporation v. Insur: .
a 3
ance Equities Cnianestin (1936 C. C. A. Third Cireuit) 85
F. (2d) 856, as follows :
‘*When a counterclaim i is filed, the plaintiff becomes
the defendant in the cause of action set forth therein,
and this extends to removal prewesne? from a State
court to a Federal court.’? | :
The decisions upholding the right of a plaintiff to remove
_ @ counterclaim filed against it to the Federal Court under -
the removal statute above quoted is coped or —
in the following cases:
Bankers Securities Corporation v. Insurance Equities
Corporation, (C. C. A. Third Circuit N. J. ree 85
F. (2d) 856;
Chambers v. Skelly Oil Company (C. C. A. Tenth ae
~ cuit 1937), 87 F. (2d) 853; :
Wichita Royalty Co. v. City Netiondt Bank (D. C. Tex.),
_ 18 Fed. Supp. 609, Affirmed (C. C. A. Fifth Circuit
1988), 95 F. (2d) 671; Affirmed by the Supreme |
Court without referring to the jurisdictional question,
ie 306 U. S. 108, 83 L. Ed. 515;
Carson and Rand Lumber Co. v. Holteclaw (D. C. Mo.
1889), 39 Fed. 578;
_ Walcott v. Watson (C. C. Nev. 1891), 46 Fed. 529;
Price & Hart v. T. J. Ellis od Co. (C. C, Ark. 1904),
129 Fed. 482;
Hagerla v. Mississippi River Power Co. (0. C. Iowa
1912), 202 Fed. 771;
_Hamsen v. Pacific Coast Asphalt Odiaent Co. (D. C.
Calif. 1917), 243 Fed. 283;
_ Chicago, M. & St. P. Ry. Co. v. City of Spencer (D. C.
Towa 1922), 283 Fed. 824; /
Consolidated Textile Corporation v. Iserson (D. C.
N. Y. 1923), 294 Fed. 289 ; .
Pierce v. Desmond (D. C. Minn. 1926), 11 F. (2d) 327;
~—
_
2 17 4
Mohawk Rubber Co. of New York v. Terrell (D. ©. Mo. oe a4
~ ~~ 1926), 13 F. (2d) 266; AE
? Zumbrunn v. Schwartz (D. C. Ind. 1927), 17 F. (2d)
1 SOR
San Antonio Suburban Irrigated Farms v. Shandy ) ad
(D. C. Kan. 1928), 29 F. (2d) 579; cs - , ot
Evetts v. Peoples Life Insurance Co. (D. C, Tex. 1929), =
36 F. (2d) 832; %
American Fruit Growers, Inc. v. La Roche (D. C. 8..C.
4998), 39 F. (2d) 243; |
~\° Houlton Savings Bank v. American Lomiiey Machia-
ery Company (D. C. Me. 1934), 7 Fed. Supp. 858;
Groveville Sales Corporation v. Stevens (D. C. N. J.
_ 1936), 16 Fed. Supp. 563; ae | : i
O’Neill Bros., Inc. v. Crowley (™. ©. §. C. 1938), 24 oy |
Fed. Supp. 705; a
Baker v. Keebler (D. C. Tenn. 1939), 29 Fed. Supp. 555.
The fgllowing cases deny on one ground or another the
right of removal to a defendant in a cross-Action:
Waco Hardware Company v. Michigan Stove Company
(C. C,.A. Fifth Cireuit 1899), 91 Fed. 289; mt.
McKown v. Kansas and Texas Coal Company (C. C. ae EE
Ark., 1901), 105 Fed. 657; ,
Judidas Mountain Jellico Coal Company v. Asheville | at
Ice and Coal Company (C. C. N. C. ss 135 Fed. ae ££
837;
Illinois Central Ry. Co. v. A. Waller & Co. (C. C. Ky.
1908), 164 Fed. 358;
Glover Machine Works v. Cooke-Jellico Coal Comins
(D. C. Ky. 1915), 222 Fed. 531. |
' The annotator in Note 668 of 28 U. 8. C. A. Section 71
says: : :
_ “The Authorities are in hopeless discord upon the
question whether, when a counterclaim or cross-bill is
+ Say ee! ate Pa yee ah hg < m PST ee ak te
- ‘ oe Pict os Cn acede Bu iw hel - eee bi pte ress
ane : ~ nf ‘
? OP beg tee ?
18
filed, the plaintiff or the defendant to the dviginal suit
is to be regarded as defendant for the purpose of re-
moval.”’
Petitioner submits - ‘is reason of such conflict the Su-
preme Court should exercise its jurisdiction to cose the
‘writ of certiorari.
It is respectfully submitted that the decision and holding
of the honorable Circuit Court of Appeals i in the present
~ ¢ase that the term ‘defendant or defendants” as used in the
portion of the removal statute above quoted does not apply
to a plaintiff or cross-defendant (R. 129), likewise conflicts
with decisions of the Supreme Court and other Circuit
Courts of Appeals. Mr. Justice Holmes, speaking for the
court in Mason City & Fort Dodge Railway Company v.
Boynton, 204 U. 8. 570, 579; 51 L. Ed. 629, 633; 27 S. C.
321, and referring to the statute in question, stated: _
‘‘But this court must construe the act of Congress
regarding removal. And it is obvious that the word
‘‘defendant’’ as. there used is directed toward more
important matters than the burden of proof or the
right to open and close.”’ s.
~ he Supreme Court has repeatedly held that under the
Judicial Acts of 1875 and 1887 (March 3, 1875 c. 137, Sec.
2, 18 Stat. 470; March 3, 1887, c. 373, Sec. 1, 24 Stat. 552;
August 3; 1888, c. 866, 25 Stat. 433). that in determining the
right of removal, the parties should be realigned in accord-
ance with the matter in dispute without regard to the
position they occupy in the pleadings as plaintiff or de-
fendant. Removal Cases (1879), 100 U. S. 457, 25 L. Ed.
593; Brown v. Ironsdale (1891), 138 U. S. 389, 11 S. C. 308,
34 L. Ed. 987 ; Wilson v. Oswego Township (1894), 151 U.S.
56, 63, 148. C. 259, 38 L. Ed. 70; Merchants Cotton Press ¢
Storage Co. v. The Insurance Company of North America
(1894); 151 U. S. 368, 385, 14 S. CG. 367, 38 L. Ed. 195, 204;
x ‘
¢
\
19
Mason City & Fort Dodge R. R. Co. v. Boynton (1907), 204 —
U. 8.570, 27 S. OC. 321, 51 L. Ed. 629; Venner v. Great North-
ern Railway Company (1908), 209 U. 8. 24, 28 8. C. 328,
52 L. Ed. 666; Niles-Bennett-Pond Co. v. Iron Moulders
Union (1920), 254 U. 8. 77, 41 S. C, 39, 65 L. Ed. 145. . The
right. of a third party brought in by a czoss-action_ to
remove under our present removal statute has likewise
ee recognized in Habermel v. Mong (1929 C. C. A.
Sixth Circuit) 31 F. (2d) 822, Writ of. Certiorari denied,
280 U. 8. 587, 74 L. Ed. 636, 50 8. C. 37; Houlton Savings
Bank v. American Laundry Machinery Company (1934
D. C. Me.), 7 Fed. Supp. 858; Ellis v. Peak (1938 D. C.
ily 22 Fed. Supp. 908. :
The honorable Circuit Court of pes vinythe cone
case cites the decision of the Supreme Court in West v. The
City of Aurora (1868) 73 U.S. 18, 6 Wall. 139, 18 L. Ed. 819,
as being controlling in the present case. The facts very
briefly are that the plaintiffs in error were plaintiffs in the
- State court. The nature of the suit was not clear to the
Supreme Court but appeared to be for the recovery of the
amount of interest coupons of certain bonds. The City
filed an answer setting up defensive matter and prayed for
suit and sought to remoye the new y matters to the Federal
Court. The action was remanded. The Supreme Court
held that such action was proper. This case was decided
under the Judiciary Act of 1789 (Act of September 24, 1789, |
c. 20, 1 Stat. 73), the pertinent part (Section pty of such
statute being as follows:
“That if a suit be commenced in any State court
against an alien, or by a citizen of the State in which
the suit is brought against a citizen of another State,
and the matter in dispute exceeds the aforesaid sum or
—_—
™
value of $500.00, exclusive:of costs, to be made to ap.
pear to the satisfaction of the court; and the defendant
shall, at the time of entering his appearance in such
State court, file a petition for the removal of the case
for trial into the next ciréuit court * * *” (His-
torical Note, 28 U. 8. C. A. Section 71). |
This decision of the Supreme Court has been distin-
guished from the question here presented on three distinct
grounds by other Cireuit Courts and District Courts. The.
grounds of such distinction are:
(1) The Act of 1789 and the present seaiaiival: statute
are materially different in that the Act of 1789 limited the
right of removal to a defendant ‘‘who shall at the time of
entering his appearance in such State court * * *”’
file a petition for removal, while such requirement is not in
our present Judicial Code. Habermel v. Mong (1929
CCA; Sixth Cireui ) 31 F. (24) 822, Writ of Seddiondeng
eresenicia
Bros. v. Crowley’ t 538 D. 0. 8. C.) 04 Fed. Supp, 705;
San Antonio Sub ban Irrigated Farms v. Shandy (1928
D. ©. Kan.) 29 F. (2d) 579; Zumbrumn v. Schwartz (1927
D. C. Ind.) 17 F. (24) 609 Price & Hart v. T. J. Ellis and -.
Co. (1904 C. C. Ark.), 129 Fed. 482;
(2) The so-called cross-action filed by the defendant in
the West case presented defensive matters only and was
merely supplemental proceedings ancillary to the main suit.
Ward v. Congress Construction Company (1900 C. C. A.
' Seventh Circuit) 99 Fed. 598; O’Neill Bros. v. Crowley
(1938-D..C. S. C.) 24 Fed. Supp. 705; San Antonio Suburban
Irrigated Farms v. Shandy (1928 D. C. Kan.) 29 F. (2d)
579; Pierce v. Desmond (1926 D. C. Minn.) 11 F. (2d) 371;
Hagerla v. Mississippi River Power Company (1912 D. C.
Iowa) 202 Fed. 771; Walcott v. Watson (1891 C. C. Nev.)
46 Fed. 529; 4 , Le
21 y
(3) The record in the West case, as pointed out by the
court therein, was so fragmentary as to be unintelligible.
O’Neill Bros. v. Crowley (1938 D. ©.'S. C.) 24 Fed. Supp.
705; San Antonio Suburban Irrigated Farms v. Shandy .
(1928 D. C. Kan.) 29 F. (2d) 579.
Point. IT.
Summary:
_ The order of the Trial Court overruling respondents’ —
motion for reconsideration of its order overruling motion to
remand is not a final judgment from which an appeal lies
to the Circuit Court of Appeals.
Referable to Question II and Reason IV in Petition and
- Specification of Error II in Brief:
Argument and Authorities Under Point II:
When this cause was removed to the Federal Court,
_Peapondents filed their motion to remand (R. 76 to 80) which
-was overruled (RB. 80) before trial on the merits. After
rendition of judgment on trial on the merits (R. 81),
‘the respondents filed their motion for new trial and for
reconsideration of their motion to remand (R. 85 to 93).
This was overruled (R. 93-94). Respondents’ notice of
appeal (R. 95), the cost bond (R. 96), respondents’ appli-
cation for leave to appeal (R. 101), the order allowing
appeal (R. 103), and assignments of error (R. 103-107) all
recite in substance that the appeal is taken from the
order of the Trial Court overruling the respondents’
. motion for reconsideration of their motion to remand. No
appeal was taken from the judgment on the merits rendered _
on October 13, 1939 (R. 81). It is respectfully submitted
that such an order or judgment of the Trial Court is not a
final judgment from which an appeal may be taken and it is
respectfully submitted that the action of the honorable
Circuit Court of Appeals in entertaining this appeal is in
89 , |
22
_ conflict with the oi telhaies decisions : Bender v. The Pennsyl-
vania Com mpany (1893) 148 U. S. 502, 37 L, Eid. 537, 13 S. C.
640; Arthur v. Edmunds (1933 C. C. A. Fifth Circuit) 66 F.
(2d) 21; Lockhart v. Now York Life Insurance Company
41934 C. C. A. Fourth Circuit) 71 F. (2d) 684; Klein v. Wil-
son & Co. (1925 C. C. A. Third Circuit) 7 F. (2d) 777; which
cases hold that an order overruling a motion to remand is not
_a final judgment from which an appeal lies. The petitioner
recognizes that on an appeal from a final judgment in a
_ ease or on appéals from interlocutory orders which are
made appealable by statute, that the appellate court has
jurisdiction to review the action of the Trial Court in refus-
ing a motion to remand. In the instant case, no appeal was
attempted to be taken from the final judgment on the merits
rendered on October 13, 1939, but the only judgment or |
order appealed from is an order rendered after final judg-
ment on a motion to reconsider a motion to remand, which
motion to reconsider was filed subsequent to the judgment
on the merits. If action on a motion filed after a
judgment to reconsider a previous interlocutory order
of the Trial Court is a final judgment from which an appeal
may be taken, the power to evade the provisions of the
statute that kn appeal may be taken from a final judgment
only is put in the power of either party and there could be
no limitation as to the time that such. motions might be
filed and appeals taken. }
Conclusion.
It is respectfully submitted that by reason of the im-
portance of the question involved being a question of the
proper construction_of a Federal statute and involving
Yemoval jurisdiction, and because of the trreconeilable~”
conflict between the Circuit Cour.3 of Appeals upon the-
question involved that the Supreme Court of the United
‘States should exercise its jurisdiction and grant a writ of
23
gertiorari in this cause to the United States Circuit Court
of Appeals for the Fifth Circuit to review the judgment
of said court entered on the 6th day | of December
and that upon such review the judgment of saig/court be
reversed and the judgment. of the United Staj
Court for the Northern District of Texas be
. Respectfully —
- RR. C. Jomnson,
. Josep B. Dooxzy,
R. E. Unperwoop,
_ BR. A. Wuson, —
W. M. Surtoy,
All of Amarillo, Texas;
Attorneys for Petitioner.
a pe
Sidbpadini jeoconisin-oianenenpphenepurenstvaniorecepinadivotn
i
+
.
.}
* - . . “.
2
° 3 ‘ fr :
: be . 7
os ° > ; r " } ‘
‘ . : : } i
A “ - + < : ¥ ; Ae ‘ a3 aes : iS rn te Bieri ne OS, Rae Owe a Ree Bo datemint etre ee
‘ : ne Y on . sh ie ee eke Rite ab Xe Ree EE ee a ee ee ONE Pe MO ek ee ROTTS Lee Nae Fe ES Ree ee tye : A
> > > = a anos be ry = . - > ~ _ > rm, . ve
- . “ » " . * . . “a
ij : ; ~ : hes yon De <i pis apy 9th Sa maa Say nd Has SEP a aaa io wise inl PRR ER Tet os piso Sigs he hyiaoadl BR mw pi hace. ‘
o ICPIITRERI arrears Denes en ne nee ten On A ne cean tne eeeeamndiaesieaasenencunensatenesar?” siteesauiedemiarenrnatancutaineemmenin aa Saar UR OARS deivi campers eianae ip arscctrtaainnepetnacreamisne seis rei oR Loe Oe ee nt $e VAS .
° 2 .
4 ° ry iy
x } ne ; mh, : pes a eatee?
. -s >
.
e , : .
4 ; ‘ ; :
chandise, including claims or suits for liquidated money |;
. such account is not just or true, in whole or in part,.and —
24
APPENDIX. |
Nore 1—Article 3736, Revised Civil § Skatates of Texas, "
asamended 1931: 4
‘*When any action or defense is founded 1 upon an open 3
account or other dlaim or claims for goods, wares and mer- §
demands based upon written contracts or based on business ©
dealings between the parties, or for personal service ren- |
dered, on which a systematic record of said account has @
been kept, supported by the affidavit of the party, his agent ~
or attorney, taken before some officer authorized to ad- ~
minister oaths, to the effect that such cause of action is, ¥
within the knowledge of affiant, just and true, that it is =
due, and that all just and lawful offsets, payments and —
credits have been allowed, the same shall be taken as —
prima facie evidence thereof, unless the party resisting ©
such claim shall, before an announcement of ready for trial ©
in said cause, file a written denial, under oath, stating that ~
if in part only, stating the items and particulars which ~
are unjust; provided, that when such counter-affidavit shall *
be filed on the day of the trial the party claiming under ——
such verified account shall have the right to continue such |
cause until the next term of court; when he fails to file such ©
affidavit, he shal! not be permitted to deny the account, or &
any item paren as the case may be.’’ :
» (2272)
Ponte get
a carmen
SrA ene gm
PIES OR 40 PU cee a PYE e II Te &
PeKQReTNR Maney
della altan cee = 9 RAO oon
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.