# Opposition Brief — Kloeb v. Armour & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386402_0011%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1940 - **Citation:** 311 U.S. 199 ## Text Blank Page ae thre prarzk Ra. Blank Page IN THE Supreme Court ofthe United States October Term, 1939 No. 977 ) Frank L, Kiogs, Juoce or tHE District Court oF THE Unirep States FOK THE NorrHern District or Onto, WESTERN Division, Petitioner and Respondent Below, x vs. Armour & Company, an Intino1s Corporation, Respondent and Petitioner Below. BRIEF OF RESPONDENT OPPOSING PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT Epwarp W. Kautsey, JR., Frep A. Surrs, 807 Ohio Bldg. ., Toledo, Ohio, Joun P. Dovzz, Armour & Company. OS ne, ounsel fo seediil Wettzs, Kersey, Cosourn & Harrrneton, 807 Ohio Bldg. Toledo, Ohio, Of Counsel. je lank Page — | a Ti Options BROW fo ovis ccc ccs cdu cabccnsostecexs ~ Ti, Sebladiatio. 05sec sees ki code dabsavades “Sew 2 III. Statement of the Ott ois os tie ces gas 3 IV. Argument and Law............cceeceee- oh is 6 A. The Writ of Mandamus Is the Only Avail-— able Remedy to Correct the Refusel of the District Court to Give Full Faith and Credit to the Judgments of the Ohio Courts........ 6 Conclusion. ......... Sala Boia éoeisd ase See ke cache 14 INDEX OF AUTHORITIES American Surety vs. Baldwin, 287 U. 8. 156.........2,7 Armour & Co. vs. Kloeb, 109 109 Fed. COR) Fie Cacats ska 5 Armstrong vs. Walters, BW OG, Ges o'ig sca beee ees 11 Baldwin vs. Iowa State ane. Men’s Assoc., 283 We Ba case sas dees 62 sea a ee eeinsvesewe 2,7 eeeoeveeeeeveev eevee eeeeeeeeeeeeeeaeeeeeev ee eeeeee 1 City of Boston vs. McGovern, 292 Fed. 705; 265 U. O GGS site ad kad eee babs ete dees oaks 8 Clarke vs. Methewson, 12 Pet. 164.................. 10 Dane wa. Clerks, & Pet. 1.0. 6.5 cc rcccccedesnsaienes 10 = Reinsurance Corp. vs. Bryant, 299 U. S. Decade Ceska vs chek oss arches baeheeteneree ees Hammer et al. =. British Type Investors, Inc., 15 SR re oes ae 12 Hardenburgh vs. ee Ee a” Fee 10 Interstate B. & L. Ass’n vs. ee Hotel Co., 109 SR RRL ein ain SAN nA ste: 11 Kanouse vs. Martin, 15 How. SSPE ee Kirby vs. American Soda Fountain Co., 194 U. S. it, SOG asc cane PSS bs deus PRESEN OS RS OREN RS 10 Page Kniess vs. Armour, 134 O. S. 482; 17 N. E. (2d) 734; Le ee 6) Ae rer 3, 4, 12 Losito vs. Kruse, Jr., 136 O. S. 183..............5-. 12 Lucania, ete., vs. U. S. Corporation, 15 Fed. (2) 568.. 12 McGowan vs. Rishel, 125 O. S. 77, 80................ 13 Metropolitan Trust Co. 218 U. S. 312.............. 9 Mollan vs. Torrance, 9 Wheat. 537................. 10 Morgan’s Heirs vs. Morgan, 2 Wheat. 290, 297...... 10 Mullins Lumber Co. vs. Williamson & Brown Land Co., 246 Fed. 232....... RES iu ai wala we aidw kts © 6 11 is SB! Sir ie Se errr Te rere 10 Pullman Co. vs. Jenkins, 305 U. S. 534, 537.......... 11 Rogge vs. Michael Del Balso, Inc., 15 Fed. Supp. 499. 12 Rooker vs. Fidelity Trust Co., 263 U. S. 413........ 2,8 Stewart et al. vs. Nebraska Tire & Rubber Co., 39 Fed. SD es Na aan doa ho Sh ks ones Seo eles s cae 12 St. Paul Indemnity Co. vs. Cab Co., 303 U. S. 283.... 10 Tillman vs. Russo Asiatic Bank, 51 Fed. (2d) 1023... 12 Wichita R. & Light Co. vs. Public Utilities Comm’n, BE PA el er ane oy mre 10 Windholz vs. Everitt, 7¢- Fed. (2d) 834............. I Young vs. Southern Pacific Co., 15 Fed. (2d) 280..... 12 Ohio General Code—Section 11312...7............. 13 U.S.C. A, Title 28— Section 344(b) ............. ESE Oe ae 4,5 SE EES con ocuwnccdie ceacduewens cones 2 SUID CIE ois cw di ivsend cddadety lacemeeeeues 4,11 PIO NE oo oc oivresdbcnyadexwerienbcenshaane 5, 6 IN THE | Supreme Court of the United States October Term, 1939 No. 977 -.. Frank L. Kioges, JupcGe or tHE District Court oF THE UnitTep StaTEs FOR THE NortHern District or Ono, WESTERN Division, Petitioner and Respondent Below, vs. ~~ ww Armour & Company, an Ituinots Corporation, Respondent and Petitioner Below. BRIEF OF RESPONDENT OPPOSING PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT I a OPINIONS BELOW The first opinion in the Circuit Court of Appeals for the Sixth District was filed on December 5, 1939, and appears in the record, page 66 et seq. It is reported in 109 Fed. (2d) 72. The second opinion of said court has not been re- ported, but was rendered on March 12, 1940, and is found at page 71 of the record. No petition for rehearing .was filed in the court below. ae of JURISDICTION 1. The date of the judgment to be. reviewed is March 12, 1940. (Record, p. 71.) 2. Petitioner requests this court to review this judgment by virtue of the authority contained in Judicial Code, Sec. 240, as last amended by the Act of Congress approved February 13, 1925, C. 229, Sec. 1, 43 Stat. 938 (Title 28, Sec. 347(a), U. S. C. A.). Respondent con- cedes this court has authority to review the judgment below; but respondent urges that there are no reasons pursuant to Rule 38 (Rules of the Supreme Court) or otherwise for the exercise of this court’s discretionary powers and asserts that: This court should not grant the petition prayed for, as the question involved has been settled by this court. The cases believed to sustain respondent’s assertion are: Rooker vs. Fidelity Trust Co., 263 U. S. 413; Baldwin vs. Iowa State Traveling Men’s Assoc., 283 U. 8. 522, 524-526; American Surety vs. Baldwm, 287 U. S. 156, 164-167. iit STATEMENT OF THE CASE In the light cf the action of the petitioner in refus- ing to retain jurisdiction of this cause, a review of the proceedings prior to his decision is necessary. Five plaintiffs filed separate actions against Armour & Company, hereinafter referred to as ‘‘Armour,’’ and Charles J. Burmeister, hereinafter referred to as ‘‘Bur- meister,’’ in the Court of Common Pleas at Toledo, Ohio. In all material respects, petitions of the plaintiffs are identical. Each seeks to recover money damages for in- juries claimed to have resulted from contracting a dis- ease known as trichinosis due to the alleged presence of trichinae in fresh pork sold by Armour to Burmeister, and thereafter manufactured by Burmeister into a smoked product known as mettwurst sausage, which was ‘‘a food product, ready for human consumption without cooking or further treatment.’’ (R. 11.) The case of George Kniess, who was one of the five plaintiffs, was tried as a test case, and the other four remained pending. The Supreme Court of Ohio, on No- vember 30, 1938, rendered its decision in the case, George Kniess vs. Armour, 134 O. 8. 432, 17 N. E. (2d) 734, 119 A. L. R. 1348. The Supreme Court of Ohio reversed the judgment against both defendants on the grounds that: 1. The defendants were not jointly liable under the laws of Ohio. 2. Separate causes of action against different de- fendants may only be joined where the liability is joint; and joinder of such distinct causes of action is improper ! in the instant case under the Ohio statutes and does not defeat the right of a non-resident defendant to remove to the federal court the separate suit against such de- fendant. . 8. Armour was entitled to remove the cause of action against it to the United States District Court. 4. The judgment against Burmeister was reversed because he was not jointly liable under the laws of Ohio. The mandate (R. 19) being returned to the Court of Common Pleas, the petition for removal to the District. Court of the United States in each of said five cases was granted by the Court of Common Pleas, and said causes were removed to and duly docketed in the United States District Court. Instead of filing a petition for a writ of certiorari to this court, as. provided by law, Title 28, Sec. 344(b), U. S. C. A., the plaintiff, George Kniess, on March 3, 1939, filed a motion to remand, as likewise did the plaintiffs in the other four cases. In the George Kniess case, there was filed an affidavit in support of the motion to remand in which Kniess claimed to be an alien and a subject of Germany, and to copf-rm to the «alleged facts, Armour filed a motion in the District Court to amend its petition for removal, so as to show that Kniess was a citizen and a subject of Germany, if such was the fact, such amend- ment being authorized by Title 28, U. S. C. A., Sec. 399. The petitioner in this cause never made any ruling on the motion to amend. Petitioner entered an order re- manding the Kniess case and the four companion cases, in which it is not claimed the plaintiffs are aliens, but no opinion was filed in sustaining the motion to remand. ~ Thereupon Armour filed in each of said cases a motion f 4 5 to vacate and set aside the order to remand (R. 36), but said motions were overruled without opinion (R. 7). Thereupon Armour brought an original action by fil- ing a petition for a writ of mandamus in the United States Cireuit Court of Appeals for the Sixth Circuit (R. 2-7), leave having first been obtained (R. 1), request- ing the United States Circuit Court of Appeals to issue ty the writ on the ground that petitioner failed to give full faith and credit .o the decisions and ofders of the Su- ° preme Court of Ohio and the Court of Common Pleas of Lucas County, Ohio, as required to do by law (Title 28, Sec. 687, U. S. C. A.) ; that the petitioner transcended his power in remanding these cases, as there was not and could not be any matter presented to him for determina- tion that had not previously been passed upon and.finally disposed of by the Supreme Court of Ohio and the Court of Common Pleas of Lucas County, Ohio; that the de- cision of the Supreme Court of Ohio to the effect that the separate suit against Armour was removable was then res adjudicata; and the power to review the decision of the Supreme Court of Ohio is vested solely in the Supreme Court of the United States (Judicial Code, C. 229, Sec. 1); 43 Stat. 937, as last amended February 13, 1925 (Title 28, U.S. C. A. 344(b)) and cannot be exercised by the petitioner herein. (R. 7-10.) a Armour’s contention in the above res for the Cir- cuit Court of Appeals are set forth in a Memorandum in support of its motion for leave to file the petition, which appears in the record at pages 40 to 60. These conten- tions were adopted by the United States Circuit Court of Appeals in its opinion which is reported in 109 Fed. (2d) 72, and which appears in the record, pages 66, et seq. IV ARGUMENT AND LAW A. The Writ of Mandamus Is the Only Available Rem- edy to Correct the Refusal of the District Court to Give Full Faith and Credit to the Judgments of the Ohio Courts. The respondent concedes that an order of remand by a District Court is not reviewable by appeal or writ of error and likewise concedes that the usual order of remand following an original determination of the ques- tion by the District Court is not reviewable by way of a write of mandamus.‘ It is the contention of Armour in the instant case that the action of the District Court went beyond the usual order of remand, in that the District Court pur- ported to make.a determinaticn of a matter that had already been submitted to and passed upon by the state courts, and that the order of the District Court in effect refused to give full faith and credit to the decisions and orders of the state courts. 28 U, S. C. A., Sec. 687, pro- vides in part that: s qe 14 only be solved on a determination of the substan- tive law of the State of Ohio 110 with respect to joint liability. dO eh The petitioner agrees that this question has been finally disposed of by the Supreme Court of Ohio. It is also true that it was decided correctly. The petitioner’s claim that he possesses, power to review and reverse the decision of the Supreme Court of Ohio finds no support 4 in the statutes or authorities. 1 CONCLUSION We respectfully submit that the action of the court below was in all respects proper and that no substantial purpose can be served except a further ‘‘prolongation of the controversy’’ by granting a writ of certtorari in this case. Epwarp W. Ketsey, Jr., Frep A. Smirx, Joun P. Doyzg, Counsel for Respondent. Of Counsel: Wettss, Kersey, Copourn & Harrineron. Blank Page --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386402_0011%3A5. Public record. Not legal advice.