Brief for Respondent — Shawkee Manufacturing Co. v. Hartford-Empire Co.

SUBJECT INDEX

PAGE

‘Official Reports of Decisions. . ee

Counter-Statement of the Case, Ff ar ans er 2

The proceedings and issues below. 2

The issues in this Courꝶi . — 4.

The opinion of the court e Shawkee’ 8

knowledge of the facts in 1933; Shawkee =

es) ke MARKER SAME EE SKK RO a

The- Clarke Article „

Factual errors in the dissenting opinion below 9

Inaccurate statements and arguments in Shaw-

kee’s brief in matters outside the record. 9.

Summary r an ate in 8 11

Argument r lu

First Point. Respondent interposed no objec- -

tion in the court below, on procedural .

grounds, to petitioners’ original application

in the court below for leave to file a bill of

review in the District Court, but opposed

only on the lack of merit in the petition. ©

Respondent concedes that it is petition-

ers’ procedural right to file an original bill

in a competent court of original jurisdic-

tion to impeach the judgment now standing

against them but insists that the court be-

8. ect Inden.

i PAGE

low was without statutory or other author-

ity to grant the relief sought by petitioners.

‘Petitioners’ several contentions in regard

to the legal power and as to the public in-

. ‘terest are wholly without merit. 16

Second Point. There was no fraud in the prep-

aration and publication of the Clarke ar-

ticle, or in its use by respondent in the

Patent Office or in the Circuit Court of Ap-

peals. The Clarke article was not 8

to the deeision of the Court of Appeals. . 17

Third Point. The court below correctly held

that petitioners have known since 1933 of

respondent's connection with the Clarke

article and have no. standing to seek the ä

relief for which they petitioned 6 21

Fourth Point. Petitioners are barred by their

own election from seeking relief. At the

first hearing in the Court of Appeals in

1933, petitioners voluntarily proposed and

entered into a stipulation, approved by the

court, that the appeal from the granting of

the preliminary injunction should be con-

sidered as if on final hearing, thereby waiv-

ing ‘their right to call and examine wit-

nesses.

Although, prior to the decision of the

Court of Appeals in 1934 they had ac-

quired. knowledge of respondent’s connec-

tion with the Clarke article, petitioners

did not seek to be relieved of their stipula-

' Table of Cases Cited. = 1

tion, as they might have done, but stood

upon it, thus electing not to call and exam- :

ine witnesses known by them td have full

knowledge regarding the Clarke article.

Petitioners thereby barred themselves

from the relief they now belatedly seek... 26

Fifth Point. The judgment below was ‘aa

because the alleged fraud did not prevent

petitioners from making a full and fair

VVV .

Sixth Point. Petitioners’ contention that the.

original complaint below should be dis-

missed on the authority of the KEYSTONE

DRILLER cases is without merit . 32

g Seventh Point. The writ of certiorari should

be dismissed because the judgment below

was based on several grounds, mainly of a

factual nature and each sufficient to dis- ae

| — ee V 34

Conclusion ..... 777 RP Ra rE Pig ele 34

Table of Cases Cited

Art Metals Works, Inc. v. Abraham & Straus, Inc.,

2 Cir., 107 F. 2d 940; 107 F. n 3,12

Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403. 28

General Talking Pictures Corp. v. Western Electric _

. Oe rrr my reer 3

Hazel-Atlas Glass Company v. Hartford-Empire

Company, 3 Cir., 137 F. 2d 764.......... „

a * 30 Cases Cited.

- PAGE

Hartford-Fairmont Co. v. United States Class Cos, 5

%%% ũ ͤœmQeſ—A—OAh]A PTET Tere . 10

In re New England Oil — Co., 1 Cir., 9 F. 2d

— ⅛ Pe Ee re eer ery nd ee 17

Keystone Driller Co. v. General Mucavator Co., 290

. eo eer © + Fe

Marshall v. Holmes, 141 U. 8. 589: . 8 . 12

Rorick v. Devon, 307 U.S. 299 . 4

Schneiderman v. United States, 320 U.S. 118. me

Toledo Scale Co. v. Computing Scale Co., 7 Cir., 281

Fed. 488; 261 U.S. E 15, 22, 23, 30, 32

Vnited States v. Morgan, 307 U.S. 18 32

United States v. Sterling, 2 Cir., 70 F. 2d .

United States v. Throckmorton; 98 U.S. 61. 12, 15, 29

U.S. ex rel. Fisher v. Williams, 67 Fed. 384. . 17

Winslow v. Staab, 2 Cir., 242 Fed. 42066 2 17

Other Citations.

2 UBC. 1 VV un

“in ‘Tae. 13

Supreme Court of the United § States

8 "OCTOBER TERM, 1943

No. 423

——

———

‘'SHAWKEE MANUFACTURING COMPANY,

GLENSHAW GLASS COMPANY,

McKEE GLASS COMPANY and

ict: ae Petitioners,

v.

HAkrronp. EMPIRE COMPANY, N

*

On writ of Certiorari to the Circuit Court of ——

for the Third Circuit

BRIEF FOR RESPONDENT, HARTFORD-EMPIRE

—— Y

re

Official Reports of Decisions

The decision of the court below is reported at 137

F. 2d 764 and appears at page 79 of the Record. That

decision disposed not only of this case, but also a com-

_ panion. one, -Hazel-Atlas Glass Company, petitioner, v.

Hartford-Empire Company, in which certiorari has also

been granted, No. 398 at this. Term. ;

\

*

——

The earlier decision of the Circuit Court of Appeals,

upon which was based the judgment sought to be re-

opened by the present proceeding, appears at 68 F. 2d

726. That opinion was filed January 11, 1934 and judg-

ment was entered on the same day. - 8

g II .

Counter-Statement of the Case

For brevity, petitioners will be collectively referred

to in this counter-statement as “Shawkee”, respondent.

as “Hartford”, the earlier litigation reported at 68 F. 2d

726 as “the Shawkee infringement suit”, the petitioner

at No. 398 as — and the record at No. 398 as

“Hazel R. vl 2 :

Many of the facts and legal ae in the

present case relate likewise to the Hazel-Atlas case.

(Shawkee's brief, p. 1, says the questions presented are

. the same, except for the additional contention, in the

Shawkee case, as to the effect of the Keystone | Driller

case, 290 U.S: 240). To avoid repetition, we shall incor-

porate by reference in ‘this brief such portions of our

brief in the Hazel-Atlas case as deal with matters com-

mon to both cases. Copies of both briefs will be served

upon counsel for the Shawkee petitioners and copies of

this brief will be supplied to counsel for Hazel-Atlas..

The proceedings and issues below

On October 24, 1941, Shawkee filed a petition in the

Court of Appeals for leave to file a bill of review in the

District Court, annexing the proposed bill of review to

Matters appearing in the Hazel record were in-

corporated in the record herein, bad reference (R. 57).

*

the petition (R. 2, 14). The petition alleged that Shaw-

kee had discovered “new matter of consequence in said

cause (R. 5). The proposed bill of review prayed that

the decree of the District Court be vacated and that

‘Shawkee be awarded damages. and reimbursement of

monies paid by Shawkee to Hartford in settlement of

the infringement accounting and by way of royalties (R.

19). Hartford maintained by counter affidavits (Hazel -

R. 49-145) that the alleged facts were not new, and that

certain of them were not facts. In a memorandum op-

posing the petition (R. 21), Hartford raised the question

of Shawkee’s diligence, and denied the allegations as to

the “newly-discovered” character of the facts alleged.

on December 29, 1941, the Court of Appeals ruled

that the gist of the petition was in the charge of fraud

on that court (R. 53) and denied the.petition, but

granted leave to amend its prayers so as to petition the

Court of Appeals to set aside its 1934 judgment on the

ground of fraud, the court stating that it would adopt

the practice followed in the Second Circuit in the Art

) Metal cases, 107 F. 2d 940; 107 F. 2d 944 (R. 54).

On January 7, 1942, Shawkee filed an amendment -

to its petition (R. 54), which in substance was a motion

to set aside the judgment in the Shawkee infringement

suit which the Court of Appeals had entered in 1934, on

the ground of fraud, for a rehearing therein, for dis-

missal of the suit on thé ground of unclean hands and

for the assessment of treble damages by the Court of

Appeals.

On February 3, 1942, Hartford filed its reply to the

amended petition. (R. 57). It incorporated by reference

portions of Hartford’s reply to the Hazel amended peti-

tion (Hazel R. 155) which outlined the history of the

_

_. Clarke article; stated reasons why there was no fraud

and why the evidence referred to in the proposed bill of

review was not newly discovered; And included a -state-

ment as to Shawkee’s laches. — ca

Subsequently in its brief, Hartford raised the ques-

tion as to whether the Court of Appeals had the power

to recall its mandate, vacate the judgment and rehear

the case after the close of the term, about eight years

before, at which the final judgment was rendered. o

this question, the answer must be in the negative, fraud

or no fraud, because a Circuit Court of Appeals loses all

jurisdiction of a case at the close of the term in which its

‘judgment is entered unless the jurisdiction be reserved,

which was not done in the Shawkee infringement suit.

The case at bar offers no ground for making an exception

to that rule. 5

The issues in this Court

The record before this Court is limited to the above-

mentioned petitions and the proceedings thereon. Shaw-

kee’s brief herein undertakes to present many matters

from the Hazel and Shawkee infringement suits, and to

refer to the proceedings therein, although neither the

record in the Hazel infringement suit nor the record in

the Shawkee infringement suit is before this Court. The.

merits of the patent infringement suits are not involved

here, for obvious jurisdictional reasons. Toledo Scale

Co. v. Computing Scale Co., 261 U.S. 399, 417-8. We

shall proceed herein upon the assumption that the only

matters to be here considered are those raised by the

petition. Rorick v. Devon, 307 U.S. 299, 303; General |

Talking Pictures Corp. v. Western Electric Co., 304 U.S.

175, 179.

* . ‘ ; :

The opinion of the court below;

Shawkee’s knowledge of the facts in 1933;

Shawkee’s laches , |

For a statement as to the opinion below (R. 79;

Hazel R. 216), insofar as it deals with matters com-

mon to the Shawkee and Hazel cases, we nespectfully ..

refer to our companion brief filed in the Hazel case, No.

398, pages 4-9. With specific reference to the Shawkee.

ease, the opinion below covered the following points: |

| rr 0

The Court of Appeals found that its 1934 decision

in the Shawkee case confirms the fact that its 1932 deci-

sion in the Hazel case was not based upon the Clarke |

article.

“But, whpily apart trois the Clarke article, 0

majority of the court in the Hazel-Atlas case, upon

‘turning to ‘the proofs’, drew their own conclusions

in support of the action which the court thereupon

took. That such was the primary basis of the ma-

jority opinion in the Hazel- Atlas case is —

by the opinion for the court in the Shawkee case*

where, without mention of or reference to the Clarke

article, this court again held the.Peiler patent valid.

True enough, in the Shawkee case the court referred

to what it had held in the Hazel-Atlas case with

respect to the validity-of the Peiler patent. But

that only served to confirm that what was held in

the Hazel-Atlas case was the court’s independent

judgment, regardless of the Clarke article. That

—

ä in ine ours. throughout this 8

brief.

(

a\

4

this is ep h further confirmed by the fact that Judge

Woolley, who had dissented sharply in the Hazel-

Atlas case, separately concurred in the court's order

in the Shawkee case stating that he regarded him-

self as bound by the court's decision in the Hazel-

Atlas case. And that was after the matter of the

Clarke article had been brought to the court’s atten- -

tion by the Barnett correspondence while the Shaw-

kee appeal, which had been lately argued, was still

under advisement.”. (Opinion, R. 87) ä

— W

a The Court of Appeals found the fact to be that

r

of the Clarke article long before 1941,

“the only difference being that Shawkee brought to

the attention of the court forthwith, at the time of

its pending appeal, its lately acquired information

concerning the Clarke article, in the manner and

— (Opinion, R.

84-85) :

and that in 1934,

“In K Shawkee

had again set forth * * * ‘that the [Clarke

article was a publication instigated by the plaintiff

Hartford] and published at the plaintiff's urgent

request * * (Opinion, R. 86)

(3).

The Court of Appeals found the fact to be that

Shawkee’s representations to that court in 1933 and 1934

concerning the aathorship of the Clarke article were

considered by all three of the judges who had heard the

Hazel and Shawkee cases.

At to Shawkee’s 1933 representations:

“That the information respecting the Clarke article,

thus imparted to Judge Buffington, came to the at-

tention of the full.court is evident * °* *”

(Opinion, R. 85) N

7

And as to Shawkee’s petition for rehearing: a

There can be no doubt that the matter received the

attention of all of the members of the court which

had heard the Shawkee, as well as the Hazel-Atlas

case. . a

4 6

The Court of Appeals found that the facts alleged

were not “after-discovered.” On the contrary, it found

that Shawkee had such knowledge respecting the Clarke

article “as long ago as 1933, while the original appeai in

the Shawkee case was still pending in this court”, fol-

lowed by applications of Shawkee for rehearing and for

leave to file bill of review, that | aa Sr

“Not possibly can the information as to the facts

attending the publication of the Clarke article be

deemed to rate as after -· discovered evidence so far

as either Hazel-Atlas or Shawkee is concerned. af

(Opinion, R. 86) At

| |

xd (5)

The Court of Appeals held as a matter of law, as

in the Hazel case, that it had no power to vacate or set

aside the decree of the District Court or to recall its

mandate to that court ieee R. 88-89).

—

The Clarke Article ela Uae

For a general narrative of the circumstances sur-

- rounding the preparation and publication of the Clarke

article, and related matters, we respectfully refer to our

brief in the Hazel case, No. 398, pages 10-14.

The Shawkee brief attacks 1 2 truth of the Clarke

article on three grounds:

First, there is an innuendo (Br. p. 8) that the article

was not based upon the Union Proceedings; but the fact

is, as clearly shown in the record, that the article was

based in greater part upon the Union Proceedings and

consisted largely in a compilation therefrom (Hazel R.

70, 59-60, 195-215; and see our brief in the Hazel case

p. 45).

Second (Br. pp. 8-9), Shawkee criticiess the truth

of the article because it does not mention various prior

art paper patents, the disclosures of which never went

into practical use. As is apparent from a reading of the

Clarke article, it was not concerned with patents, but

only with the history of the practical glass art which

the Union members encountered in their work.

. Third (Br. pp. 9-10), Shawkee criticizes the curves

in the chart appended to the Clarke article, on the basis

of correspondence which dealt with preliminary drafts.

of the curves, which were different from the corrected

2

curves appearing in the chart (Hazel R. 62-63). The

published curves are as accurate as could be arrived at”

(Hazel R. 62); “as nearly correct as * —

R. 63). 55

Factual errors in the a

dissenting opinion below. P

We hereby incorporate by eine the portion of

our brief in the Hazel case, No. 398, pp. 15-6, * this

matter.

W statements and arguments in

Shawkee’s brief in matters outside the record

Snawxkee's brief is replete with statements and argu-

ments wholly outside the record before this Court.

Those statements and arguments, apparently intended

to create “atmosphere”, cannot be permitted to go un-

challenged. In the circumstances, we feel justified in

-stating our disagreement therewith, and commenting—

not as the basis for any argument of our own, but solely

for the purpose. of holding the case within its *

compass as follows:

(1) . Shawkee’s assertion that Hartford obtained

the allowance of broad claims in the Peiler patent “by

use of the Clarke article” (Br. p. 21). The file wrapper is

not in this record. Contrary to Shawkee’s assertion, the

facts are that the Peiler application was rejected three

times by the Patent Office after a copy of the Clarke ar-

ticle was filed in October, 1926, twice by the Primary

Examiner and once by the Board of Appeals.* The

Peiler application was allowed, not because of the Clarke

* See the opinion of the District Court i in the Hazel

infringement suit, 39 F. 2d 111, 117, — on p. 7 of

Shawkee's brief herein.

= =

article, but on n proof of Peiler’ 8 priority over a Howard

patent, upon which Peiler's broad claims had theretofore

been rejected. The Clarke article was never so much as

mentioned in any 9 or any action by the Patent

Office.

(2) Shawkee’s reargument of the Showkee in-

fringement suit. The record in the Shawkee infringe-

ment suit is not a part of the record before this Court.

Nevertheless, Shawkee’s brief reargues the principal

points debated in that suit, decided against Shawkee and

not referred to in the Clarke article, such as iis conten-

tion that its glass feeder, held to infringe the Peiler pat-

ent, used a method “entirely different” from the method

disclosed by that patent (brief, p. 2), and that Shawkee

used the “principle of the old Hitchcock patents” (brief,

p. 21). Sinee the present proceedings do not require

consideration of these matters and the record on them is

not in this Court for review, the factual errors of this

sort in the Shawkee brief will not be discussed here.

We call attention, however, to the fact that petitioners’

intimation that their feeder, en joined in the Shawkee

infringement suit, was the feeder of the old Hitchcock

patent”, is belied by petitioners’ own conduct in filing a

patent application covering their feeder. (R. 22; Hazel

_R. 87), thus representing to the Patent Office that their

feeder was not old i in the art.

(3) The Shawkee brief; page 9, contains the wholly —

erroneous statement, purportedly on the authority of

_. the decision of the District Court in Hartford-Fairmont

Co. v. U. 8. Glass Co., 2 F. 2d 109, 111, that a certain

Brookfield patent “under which the defendant was qper-

ating was known to be in commercial operation and suc-

cessfully feeding suspended gobs or charges to ware.

— a

forming machines”. The facts are that the defendant

was not operating under any Brookfield patent, that the

disclosure of that patent was never commercially oper-

ated to feed suspended gobs or charges of glass, and

that the District Court did not so hold. |

(4) The statements of alleged fact in the “Conclu-

sion” of the Shawkee brief (pp. 21-22) are entirely out-

side of the record, including comments on “the history

of Hartford’s patent situation”, Hartford's alleged pat-

ent monopoly to which the Clarke article is said to have

been the key“, alleged patent monopoly from 1905 to

1954, and the suggestion that the judgment against

Shawkee prevents it from using prior art feeding appa-

ratus or methods. We do not here debate these errone-

ous allegations; deeming it improper to do so, but merely

point out their utter recklessness and lack of support

in the record:

8

Summary of Argument

| — as

Respondent interposed no objection in the court be-

low, on procedural grounds, to petitioners’ original

application in the court below for leave to file a bill of

review in the District Court, but opposed only on the

lack of merit in the petition. Petitioners now have the

procedural right to file an original bill in a competent

court of original ‘jurisdiction to impeach/ the judgment f

now standing against them. Petitioners ask this Court

to prescribe an improper procedure for this case, which

is unnecessary. There is a proper procedure open to

‘petitioners, as the court below pointed out, whereby |

—

—12—

— can rere * if * is warranted 5 the

facts.

The court below was without 8 1

to grant the relief sought by petitioners. I the petition

be regarded as a part of the original Shawkee infringe-

ment suit, the Court of Appeals had lost all jurisdiction

by the expiration of the term in which its 1934 judgment

was entered. If the petition be regarded as an original

bill to impeach the 1934 judgment of the Court of Ap-

peals, the court had no jurisdiction because it is a court:

of appellate jurisdiction only. The* limitation is not

merely one of judicial pronouncement, but is imposed on

the Circuit Courts of Appeals by statute..

‘The Art Metal cases in the Second Circuit are not

applicable here, as the court below correctly held. The

Second Circuit, as well as the other Circuit Courts of

Appeals, follows the general rule, established by many

decisions of this-Court, that the power of a Court of Ap-

peals over its final judgment, rendered by a competently

constituted court, expires with the expiration of the

term in which the judgment is entered, unless steps are

taken during that term to continue the court’s jurisdic-

tion.

The Manniting opinion below is erroneous in con-

sidering that analogy exists between the present case

and the Art Metal cases, and in holding that a Court of

Appeals can act as a nisi prius court. It disregards the

the controlling decisions of this Court.

There is no conflict between the judgment below and

the decisions of this Court in United States v. Throck-

morton, 98 U.S. 61, and Marshall v. Holmes, 141 US.

589, both of which dealt with 9 bills brought in

courts of original Jurisdiction.

—13—

The English cases cited by Petitioners are not ap-

plicable here.

The public interest does not require reversal of the

judgment below. On the contrary, the public interest

requires that the judgment below be affirmed and that

petitioners be held to a procedure by original bill which

would protect the rights of both parties.

(2) -

There was no fraud in the preparation and publica-

tion of the Clarke article, or in its use by responderit in

the Patent Office, or in the reference which respondent

made to it in its 1931 brief before the Circuit Court of

Appeals. The Clarke article was true. Clarke checked

the article for accuracy, adopted it as his own, signed it,

and sponsored its publication. Consequently, it was

Clarke’s own article when it was published, and it was

so considered by respondent’s counsel in good faith.

The Clarke article was not material to the 1932 decision.

of the court below, as that court en held.

(3)

The court below correctly held that petitioners have

known since 1933 of respondent’s connection with the

Clarke article and have no standing to seek the relief for

which they petitioned. Petitioners submitted to the

Court of Appeals, in 1933 and again in 1934, facts and

. Contentions concerning the Clarke article, similar in all

‘material respects to those they now advance. They re-

“mained inactive for nearly eight years after the Court

of Appeals refused to rehear the Shawkee infringement

suit in 1934, and for nearly two years after being put on

notice by the filing of a Government antitrust complaint,

Sa

— eal

—

in which allegations were made as to the authorship of

the Clarke article. Petitioners began these proceedings

only after respondent sued one of the petitioners for

coverdue reyalties. There is no merit in petitioners’ con-

tention that respondent, in 1932, 9 ‘investiga-

tion as to the Clarke article.

(4)

Petitioners are barred by their own election from:

seeking relief. At the first hearing in the Court of Ap-

peals in 1933, petitioners voluntarily proposed and en-

tered into a stipulation, approved by the court, that the

appeal from the granting of the preliminary injunction

should be considered as if on final hearing, thereby waiv-

ing their right to call and examine witnesses. Although,

prior to the decision of the Court of Appeals in 1934 they

had acquired knowledge of respondent's connection with

the Clarke article, petitioners did not seek to be relieved

of their stipulation as they might have done, but stood

upon it, thus electing not to call and examine witnesses

known by them to have full knowledge regarding the

| Clarke article. Petitioners thereby barred themselves .

: from the relief they now belatedly seek.

(5)

The court below correctly found that the alleged

fraud did not prevent petitioners from making a full and

fair defense. There was a full adversary proceeding in

the Shawkee infringement suit. Petitioners: nowhere

contend that respondent prevented them from present-

ing every possible defense, including all pertinent prior

art and all proof as to the similarity to that art of their

accused glass feeding: method. Petitioners are now

merely seeking reargument of issues already thoroughly

: a

ie

utigated. United States v. Throckmorton; 98 U.S. 61;

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399.

(6) .

Petitioners’ contention that the original complaint N

below should be dismissed on the authority of this

Court’s decision in the Keystone Driller cases is without

merit. That decision does not derogate from the rule

that a Circuit Court of Appeals has no jurisdiction over

its final judgment after the expiration of the term in

which that judgment was entered; for the Keystone

Driller cases were in interlocutory stages, and thus re-

mained under the control of the court below as to both

‘subject matter and parties. No case of “unclean hands”

is presented here, because respondent committed no

fraud in connection with the Clarke article. The article

was true, it was Clarke’s own article when it was pub-

lished,-it was-so regarded’ and referred to by respond-

ent’s counsel, and it did not procure the decision of the

Court of Appeals in 5 Hazel infringement suit. |

(7)

The writ of certiorari should be dismissed because

the judgment below was based on several grounds,

mainly of a factual nature and each sufficient to dispose

of the case. This Court has dismissed writs of certiorari

in such circumstances.

@

—

IV

ARGUMENT |

8 First Point

Respondent interposed no objection in the court

‘below, on procedural grounds, to petitioners’ original

application in the court. below for leave to ſlle a bill of

review jn the District Court, but opposed only on the

lack of merit in the petition.

. Respondent concedes that it is petitioners’ pro-

cedural right to file an original bill in a competent court

of original jurisdiction to impeach the judgment now

standing against them, but insists that the court below

was without statutory or other . to grant the

relief sought by petitioners,

Petitioners’ several contentions in regard to the

legal power and as to the public interest are wholly

without merit.

To avoid repetition, we hereby incorporate by refer -

-- ence our argument under the First Point in our brief in

the Hazel case, No. 398, pages 22-43.

Shawkee’s brief (page 17) erroneously states that

the court below held that “application should be made

to the District Court for leaye to file a bill of review”.

What the court held (R. 89) was that the course is open

to Shawkee to file an original bill to impeach the decree

now standing in the District Court on the ground of the

alleged fraud in the issuance of the patent”. The sub-

stance of such an original bill would be without merit

but petitioner does not deny that Shawkee has the pro-

cedural right to file it.

Petitioners’ brief, pp. 18 and 20, cites several deci-

sions not relied upon by petitioner in the Hazel case No.

—hi— - g . :

398 in support of its argument that the Court of Appeals

had power to vacate its judgment after the expiration of

the term in which the judgment was entered. The deci-

sions include Winslow v. Staab, 2 Cir., 242 Fed. 426;

United States v. Sterling, 2 Cir., 70 F. 2d 708; In re New

England Oil Refining Co., 1 Cir., 9 F. 2d 344; U. 8. ex rel.

Fisher v. Williams, 67 Fed. 384. Without exception these

cases deal with judgment of District Courts. Therefore,

none of them is authority for the proposition that a Cir-

cuit Court of Appeals has the power to recall its mandate

after the expiration of the term of its entry. Moreover,

in each of the circuits in which these cases were decided

there have been subsequent decisions confirming the

Court of Appeals’ lack of such power. See footnete on

p. 28 of our brief in the Hazel case at No. 398. |

Petitioners’ brief at p. 18 also refers to a decision of

the British House of Lords. There is nothing to show

that the House of Lords has any terms such as are pro-

vided for by statute for the United States Circuit Courts

of Appeals; 28 U.S.C. § 223.

\

, ©@

Second Point

There was no fraud in the preparation and a

tion of the Clarke article, or in its use by respondent in

the Patent Office or in the Circuit Court of Appeals: The

Clarke article was not materia) to the decision of the

Court of Appeals.

Shawkee’s contentions as to the alleged fraud have

been answered in our brief in No. 398, pp. 43-53. We will

not here repeat what we there said. We merely point

vut here that in spite of Shawkee’s knowledge of the

Clarke article and of the fact that the court below quoted.

a ae

therefrom in its 1932 opinion in the Hazel infringement.

suit, which Shawkee must have known more than a year

before the bill of complaint was filed against it in May,

1933, Shawkee made no claim of falsity of the article

until 1941. On October 30, 1933, Hartford’s counsel as-

serted in a letter to Mr. Barnett, then counsel for Shaw-

kee, that the quotations from the Clarke article, appear-

ing in the decision of the Court of Appeals in the Hazel

infringement suit, were true (R. 68). Shawkee neither

questioned nor denied that fact (Hazel R. 81 et se.).

3 Shawkee had ample 9 to discover inaccu-

racies if they existed. a

Even now, it makes no claim that any anden in

the article is inaccurate, but only criticizes (brief, p. 9).

a preliminary draft of the chart, which was subsequently

corrected (Hazel R. 62-63), and (brief, pp. 8-9) the omis-

sion from the article of reference to various patents:

The Ciarke article, of course, dealt with machinery and

methods that were in practical use, not with patents.

The conclusion is inevitable that there were, no inaccu-

racies in the published article. 8 '

Shawkee makes the unfounded contention (brief, p.

5) that Hatch prepared the articlé for the purpose of

influencing the Patent Office. Hatch did not compile tlie

article for use in the Patent Office, and in fact never

knew the article was to be used in the Patent Office until

shortly before its publication (Hazel R. 65, 69).

Confirmation of the truth of the Clarke article. is

found in an extract. (Hazel R. 87-88) from a patent ap-

plication filed by Haub, one of the Shawkee petitioners

here, upon the Shawkee glass feeder involved in the

Shawkee infringement suit. We ask the Court to read

this extract and compare it with the parts of the Clarke

-.article that deal with the commercial developments of

—19—

automatic glassware machinery. Haub was the designer

of the Shawkee feeder (R. 63; see also Hazel R. 56, 72,

76). His account of the feeding methods in practical

use is precisely the same, in effect, as the account given

in the Clarke article, though it adds a reference to cer-

tain Hitchcock patents.

The gravamen of Shawkee’s complaints seems to be

that Hartford fraudulently concealed its connection with

the Clarke article from the Court of Appeals and from

Shawkee (Petition, R. 11); but prior to that court’s 1934

decision both that court and Shawkee had before them:

. Documentary evidence in the form of corre-

‘ , spondence in July, 1926 between Hatch and

Kimes, of the National Glass Budget, showing

that the article was published at Hartford's re-

quest. Hartford interposed no objection to the

submission of these papers to the court below

and its counsel stated. in a letter to Judge

BUFFINGTON, “So far as we are concerned, your

Court may consider them, if it desires so to do,

as a part of the record in this cage.

(Hazel R. 81)

2. Mr. Barnett’s assertion “that the Clarke article

woas printed at the instigation of the Hartford-

Empire Company, through one of its attorneys,

R. F. Hatch .* * (Hazel R. 77) which was

not denied by Hartford.

3. Letter from Edmund P. Wood to W. J. Belknap

of November 14, 1933, stating that we under-

stood that Mr. Hatch was instrumental in hav-

ing the article published in the Glass

Budget and were so told by Mr. Hatch“ (Hazel

R. 145).

—20—

4. Mr. Barnett’s assertions that the article “first .

had been instigated and then inyoked by plain-

tiff”, that “the publication of this article in the

Glass Budget was instigated by the ingenious

brain of Mr. Hatch”, and that the article “had .

been published at the instigation of one of

plaintiff's attorneys and with strong circum-

stantial indications that it had been written at

such instigation”, none of which was denied

(Hazel R. 84, 85).

Within a month after the 1934 decision of the Court

of Appeals was handed down, Shawkee filed a petition

for rehearing based in part on the assertion that “the

article was Ia publication] instigated by plaintiff and

published at plaintiff's urgent request (R. 27), and that

Hartford did not come into court with clean hands

“where it relies upon a prior decision which rests in

large part upon this self-serving and apparently home-

made ‘evidence’” (R. 27-28). This petition was denied.

Shawkee had sufficient knowledge to make the fore-

going assertions to the Court of Appeals. What now is

the “newly discovered evidence” justifying this latest

attempt to disturb that court's final judgment?

Except in so far as it is applicable only to peti-

tioner in No. 398, we hereby incorporate by reference

our argument under the Second Point in our brief in No.

398, pages 43-53.

In addition, we note a material error in the Shawkee

brief, page 11, which quotes a reference by Judge

BUuUFFINGTON to the “labor conventions”, and states :

“There is no other statement in Judge Buffington’s

opinion from which it might be inferred that he had

considered the prior art of record on the merits.”

A

A

we — —

Judge BurrincTon’s opinion is to the contrary. At 59 F.

2d 399, 409, first column, Judge BurrincTon refers to

“our study of the art” and this reference is preceded and

followed by discussion of proofs in the record having no

connection whatever with the Clarke Article or the union

proceedings. Also on pages 411-3 Judge BuFFINGTON |

repeatedly held that the prior art patents did not show

what is claimed in the Peiler patent. He referred, for

example (p. 412), to “alleged anticipation which abso-

lutely did not disclose Peiler’s device”, and stated p.

413) r

Peiler’s combination a

Third Point

_ The court below correctly held that petitioners

have known since 1933 of respondent’s connection with

the Clarke article and have no standing to seek the relief

tor which they petitioned. ,

The court below found the facts to be that in 1933,

while the appeal in the Shawkee infringement suit was

pending, Shawkee “brought to the attention of the

court its lately acquired information concern-

ing the Clarke article”; that in a petition for rehearing

) in 1934, “Shawkee had again set forth ‘*:* * that the

[Clarke] article was a publication instigated by the

plaintiff Hartford] and published at the plaintiff's

urgent request ; and that in 1935 Shawkee

sought that court's leave to file a bill in the nature of a

| bill of review and in 1938 sought leave to file a petition

for rehearing, both of which applications were refused

| (Opinion, R. 85-86). The court below then held:

“Not possibly can the information as to the facts

attending the.publication of the Clarke article be

- deemed to rate as after · discovered evidence 80 tar

as either Hazel-Atlas or Shawkee 18 concerned. 2

(Opinion, * 86)

* * * * *

“So far we have considered this matter on the

merits of the petitioners’ allegations and their

standing to seek the relief for which they petition;

and we conclude against them on both grounds.“

(Opinion, R. 88)

These holdings are manifestly convict: Having

known since 1933 of respondent’s connection with the

Clarke article, as found by the court below, and having

knowledge of the witnesses from whom they could have

secured whatever facts they then may not have known,

petitioners have failed to exercise any diligence what-

ever, are guilty of laches, and are therefore barred from

now attempting to reopen the final judgment below.“

Counsel for Hartford in November, 1933 sent to

counsel for Shawkee and to the Court of Appeals a copy

of a letter from Edmund P. Wood to W. J. Belknap

(Hazel R. 83, 145) setting forth that Hatch had told

Wood that Hatch had been instrumental in having the

Clarke article published. Shawkee has never consulted

Mr. Wood as to his knowledge of the preparation and

; publication of the article (Hazel R. 190).

Counsel for Shawkee did write to counsel for Hazel-

Atlas and received a carefully worded answer, part of

which is quoted in respondent's Reply (R. 62), in which

HFazel's counsel stated that probably soon after the

patent issued in 1927, I thought that the Hartford-

ee Company might have been responsible for the

si CE. Toledo Scale Co. v. ei Scale Co., 261

U.S. 399, 422-423, 425. b

3

article * * . Hazel’s counsel stated that in order

to be more definite he would have to search his papers.

Shawkee apparently never even requested 3 coun-

sel to conduct such a search.

Hatch has never denied but on the contrary has,

whenever asked, freely described his part in the prepara-

tion and publication of the article (see Hazel R. 28, 30).

Clarke admitted to William R. Wood that the article was

“prepared and written by” Hatch (Hazel R. 28), and to

Hazel's investigator MeCarthy that essential parts of the

article, and the diagram, had been furnished by Hart-

ford's representatives (Hazel R. 193). If Shawkee had

ever exercised ordinary diligence, had ever attempted to

obtain a statement from Wood, Clarke or Hatch, it would

have discovered those additional facts which it now

claims, but which we deny, are material. Yet Shawkee

never asked Wood. Clarke or Hatch as to their knowledge

of the genesis of the article, nor has it ever made any at-

tempt to obtain statements, under — or otherwise,

from any of them. : a

Shawkee then considered the matter of. sufficient

importance to file a petition for rehearing based in part

on what it knew about the article. Yet it never took

any steps to follow the paths which then were clearly

before it. Perhaps Shawkee knew where those paths

would lead and considered the additional information it

might obtain to be immaterial, but in any event it is

now barred by its failure for more > than seven years to

follow those paths.

‘The Seventh Circuit Court of Appeals in Toledo

Scale Co. v. Computing Scale Co., 281 Fed. 488, 499,

affirmed 261 U. S. 399, said that the Toledo company,

‘whose position in that case corresponded to that claimed

here for Shawkee,*

—

“had continuously in its hands the thread which, if

followed, would have led to Computing: Company’s

lair, which Toledo company’s present counsel allege

was first discovered on December 20, 1921, after the

affirmance of the accounting deere. Toledo

Company, with the aforesaid factsand clews in its

possession, and without applying to this court as the

only court having authority to grant relief for newly

discovered evidence which might make an account-

ing unnecessary, engaged Computing Company ———

prolonged accounting contest which involved great

labor and expense.“

In —— this Court held (261 U.S. 399, 420-1) that,

the applications to reopen on the ground of alleged fraud

on the court and on the defendant were

' “addressed to the sound discretion of the court, and

based as they were upon the ground of newly dis-

covered evidence, the indispensable condition of

their being granted was that the failure to discover

the evidence in time for the trial was not due to a

lack of diligence on the part of the applicant. That

condition precedent was not fulfilled.” - |

Either Shawkee is barred by the denial in 1934 of

its petition for rehearing based upon its ‘charges then

made, the matter being thus res adjudicata, or else it is

. barred by its utter lack of diligence in not pursuing the

3 inquiry further.

It is worthy of ete that the present petition,

though filed nearly eight years after that court’s deci-

sion, was not instituted, in spite of the knowledge, con-

victions and known sources of further information that

Shawkee has had for all that period, until after Hartford

had commenced a suit for overdue royalties against

Glenshaw Glass Company, one of these petitioners.

—

In December of 1939 or shortly thereafter, counsel

for Shawkee obtained a copy of the verified complaint in

an antitrust proceeding against Hartford, Hazel and

others, which complaint set forth detailed allegations as

to the preparation and publication, of the Clarke article.

Yet even then, Shawkee waited twenty-two months be-

fore filing its petition for a bill of review for newly:

discovered evidence”:

Shawkee’s brief offers no ‘excuse for its negligence

from 1934 to 1941 except the completely erroneous claim

on pages 11-12 that Hartford’s employee Hatch paid

money to Clarke “shortly” after the 1932 decision of the

court below in the Hazel infringement suit, and thus

“foreclosed every avenue of investigation”. The true

facts concerning Clarke’s request for money after Hazel_

made its cross-license contract with Hartford and Hart-

ford's later payments to Clarke, are described in our

brief in No. 398, pages 62-6. The payments “foreclosed”

no investigation which anyone cared to undertake; the

facts had been disclosed long before (see Hazel R. 71).

Moreover, it is not even contended that Hartford did

anything to “foreclose” avenues of investigation. which

were open to Shawkee through Messrs. Wood and Hatch.

or ‘to. “foreclose” Shawkee’s investigation through

Hazel's counsel (which Shawkee began but apparently -

dropped) or to “foreclose” Shawkee from obtaining

leave to take the depositions of Clarke, Hatch and others

who, as Shawkee knew, could have testified fully « on

every detail of the Clarke article matter.

The’ mere statement of the. uncontroverted facts

thus lead to the conclusion that Shawkee has been com-

pletely lacking in —— and has been guilty of gross

laches.

Fourth Point

Petitioners are barred by their own election from |

seeking relief: At the first hearing in the Court of

Appeals in 1933, petitioners voluntarily proposed and

entered into a stipulation, approved by the court, that

the appeal from the granting of the preliminary injunc-

tion should be considered as if on final hearing, thereby

- waiving their right to call and examine witnesses.

Although, prior to the decision of the Court of

Appeals in 1934 they had acquired knowledge of re-

spondent's connection with the Clarke article, petition-

ers did not seek: to be relieved of their stipulation, as

they might have done, but stood upon it, thus electing

not to call and examine witnesses known by them to

have full knowledge . regarding the Clarke article.

Petitioners thereby barred themselves from the relief

head now belatedly seek..

We here summarize certain facts which are im-

portant in the consideration of this Point: N

The Bill of Complaint was filed May 31. 1933. At

that time, one of the defendants, Shawkee Manufactur-

ing Company, was making and offering for sale glass

feeders whose operation was charged to infringe the

Peiler patent in suit. Two other defendants, Glenshaw

Glass Company and McKee Glass Company, were using

the feeders in day-to-day operation. The fourth defend-

ant, George R. Haub, was an engineer formerly in the

employ of Hartford and of Hazel-Atlas Glass Company.

and was made a defendant as the designer af the accused

feeders. The District Court filed its opinion on June

~~ =

22, 1933, and granted a preliminary injunction, limited,

however, to enjoining the sale or disposition of the ac-

cused, feeders to third parties. It refused tp enjoin pre-

liminarily the use of the feeders by the defendants them-

selves (R. 62-63). ;

a On June 27, 1933, the defendants filed their answer.

Two of the defendants, Glenshaw Glass Company and

McKee Glass Company, admitted in the joint answer of

the defendants that they were then and had béen li-

censed by Hartford to use certain glass feeders owned

by Hartford and embodying and performing inventions

of Hartford, including the method invention of the

letters patent here in suit; and that they have acknowl-

edged and recognized and still continue to acknowledge

and recognize the validity of letters patent of plaintiff

including the letters patent here in suit“ (R. 63).

The defendants. further averred that if the claims

in suit of. said patent 1,655,391 were interpreted to em-

body the apparatus and method of the accused device,

then the claims in suit were invalid in view of certain

- prior art cited, including prior art not before the Court

in the Hazel-Atlas suit (R. 63).“ '

At the hearing of the appeal in 1933, Shawkee’s

counsel voluntarily proposed that the parties stipulate

that the case be considered as if on final hearing (thus

- waiving its right to call and examine witnesses), and a

written stipulation to that * was entered into and

filed (R. 63). N N

ä

~~ * This was the gravamen of their contentions in re-

sponse to the motion for preliminary injunction. The

District Court found a saad them.

—

Before the 1934 decision of.the Court of Appeals,

Shawkee had obtained sufficient knowledge as to the

preparation and publication of the Clarke article so that

it wrote to the Judges of that court that the publication

of this article in the Glass Budget was instigated by the

ingenious brain of Mr. Hatch, one of plaintiff's attor-

neys * * (Hazel R. 85), that this fact was clearly

shown by the correspondence in Shawkee’s possession

between Hatch and Kimes of the National Glass Budget

(KR. 71-75, and this brief, pp. 19-20 supra), and that the

article “had been published at the instigation of one

of plaintiff's attorneys and with strong circumstantial

indications that it had been written at such inatigation”

„ (Hazel R. 84). =, |

‘In Shawkee’s s petition for rehearing in the court

below, filed February 8, 1934 (R. 76), which was based in

large part upon its knowledge as to the Clarke article,

that article is characterized as “self-serving ‘and ar

parently home-made evidence” (R. 28).

Notwithstanding its knowledge of Hartford’s con-

nection with the preparation and ‘publication of the

Clarke article, and notwithstanding its knowledge that

witnesses such as Hatch, Clarke, and the Messrs. Wood

could have supplied any additional facts which Shawkee

may not then have known, Shawkee made no attempt to

withdraw from its voluntary stipulation or to obtain

leave to take the testimony of those witnesses. Had it

so requested, leave would undoubtedly have been given.

Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 444.

Shawkee thereby elected to affirm its waiver of the

right to call and examine witnesses. It cannot now

repudiate that irrevocable election. :

*

ae

1

N Fifth Point

The judgment below was correct because the al- |

leged fraud did not prevent —— from 9 a

_full and fair defense.

The court below, after outlining the knowledge of

| the Clarke article's authorship which both Hazel and

Shawkee had during the 3 suits, said (Opin-

„don, R. 87);

“To be material, the fraud, whereby a decree was

‘allegedly obtained, must have prevented the party

complaining from making a full and fair defense.

Toledo. Scale Co. -v. Computing Scale Co., 261 U. -

399, 421.“ .

In the leading case of United States v. Throckmor-

ton,” 98 U.S. 61, upon which petitioners rely here, this

Court held that a court of equity has the power to set

aside a judgment, on the ground of fraud, after the term

of the court in Which it was entered, but only when

“there was in fact no adversary trial or decision of the

issue in the case”, only where “the unsuccessful party

_has been prevented from exhibiting fully his case, by

‘fraud or deception practiced on him by his opponent”,

and only where “there has never been a real contest in

the trial or hearing of the case”

Petitioner contends (brief, p. 10) that Shawkee

was 2 9 presenting all its case to the court”

1 cited — in this Court's opinion in Schneider .

man v. United States, 320 U.S. 118, decided June 21. 19433,

and cited also in Mr. Justice RUTLEDGE’ 8 concurring —

3 in the same case. ;

a

because Hartford referred in the Shawkee case to the

decision of the court below in the Hazel infringement

suit and this, Shawkee says, “foreclosed inquiry by the

Court of Appeals into the prior art upon which Shawkee

relied”. But the facts are that Shawkee presented to

the trial court all defenses it chose to raise, including

prior art patents not before the court in the Hazel in-

fringement suit, and presented to the.Court of Appeals

not only those defenses but also substantially its present

defense of the authorship and use of the Clarke article.

It did so by several letters to the court (Hazel R. 77.81.

82, 83) and in its petition for rehearing (R. 27-28).

If the latter defense lacked any material detail whatever

in 1933 and 1934, petitioners could readily have supplied

it if they had exercised the slightest diligence, as we have

already shown under the Third Point, pp. 21-26 supra.

This Court said, in Toledo Scale Co. v. Computing

Scale Co., 261 US. 399, 421, relied upon by the court below

in its opinion (R. 87):

5 in any case to justify setting aside a decree

for fraud whether extrinsic or intrinsic, it must:

appear that the fraud charged really prevented the

party complaining from making a full and fair de-

- fense. If it does not so appear, then proof of the

ultimate fact, to wit, that the decree was obtained

by fraud, fails.” ’

Judged by this standard, which has never been disputed,

the alleged newly-discovered evidence upon which the

instant petition is based, even if it could be considered

to establish a fraud, even if such alleged fraud were ma-

terial, and even if the 1932 judgment for respondent

were obtained by the alleged fraud, all of which we

deny, would not constitute that kind of fraud which

3 —31—

would justify abtting aside a decree”. The petitioner |

has never been prevented by any action of the respondent

“from making a full and fair defense”. The principal

issue in the Shawkee infringement suit was infringe-

ment. Shawkee contended that its glass feeding method

was the method of certain old Hitchcock patents (R. 3).

This, its main defense, was elaborately presented and

was decided against it by the court below, which said

(68 F. 2d 726) :

“It is clear that, if the état apparatus

had been in use before the patent in suit,

it would have been a complete anticipation thereof.

Coming after the patent, it is as clearly an in-

fringement, and the court committed no error in so

holding.”

The Clarke article 8 did not bear upon this’

question of whether Shawkee’s method was or was not

merely the old Hitchcock method; for the Clarke article

did not refer to the Hitchcock patents or to the Shawkee

. feeder. —

The question of infringement 0 this suit, as in every

infringement suit, depended on the proper place of the

patent in the art. Petitioners nowhere contend that

they were prevented by respondent from presenting

every possible defense, including all the pertinent prior

art aan full explanation of that art. Petitioners are

merely seeking a reargument of issues 3 thor-

oughly litigated. * N

Petitioners are not herd seeking an opportunity to

offer new proof on any of the issues of the patent con-

troversy. Petitioners are merely seeking a reargument

of the issues of validity and infringement, already thor-

oughly litigated in an — * The very

the lower courts in the Keystone Driller cases at vari-

—32—

fact that the petition does not contain any prayer di-

rected toward amplifying the record of the patent case

conclusively demonstrates that petitioners were not pre-

vented from making a full and fair defense, and there-

fore, under the doctrine of the Toledo Scale case, supra,

the judgment below should be affirmed. |

Except insofar as it is applicable only to potitionst

in No. 398, we hereby incorporate by referefice our argu-

ment under the Fifth Point in our brief in No. 398,

pages 70-73.

Sixth. Point - 9

Petitioners’ contention that the tine complaint

below should be dismissed on the authority of the

KEYSTONE DRILLER cases is N merit.

There is nothing in the decisions of this Court orof -F

ance with the proposition that the final ‘judgments of the

Court of Appeals in the Shawkee and Hazel cases maß

not now be set aside because that court has no jurisdic-

tion to do so. The decisions in the Keystone Driller

cases were rendered while the proceedings were ir inter-

locutory stages; whereas here the jurisdiction of;the

Court of Appeals ended with the ending of the term in

which its mandate went down (see our brief in the H

case at No. 398, pp. 25-8). The doctrine of unclean ole.

is applicable while the court has control of the sub-

ject matter and of the parties: Cf. United States v. v. \

Morgan, 307 US. 183, 197. 3

4

Petitioners urged “unclean hands” and the decision

of this Court in the Keystone Driller cases upon the

court below in their letter to the court dated December

. ae :

4

Denne. n

1

1

5

%

75

ö

| 16,1033 (R. 26; Hazel R. 85) and in their petition for

. rehearing filed Febguary 8, 1934 and denied by the Court

_ of Appeals February 21, 1934 (R. 27, 76). This was the

petition for rehearing in which, as already said, peti-

tioners characterized the Clarke article as apparently

home-made evidence” (R. 28). Thus the Judges of the

court below who had heard and decided the Hazel and

Shawkee infringement suits did not consider that the

authorship of the Clarke article, or Hartford’s refer-

ence to that article in its brief, presented a case of un-

clean hands”.

Moreover, Hartford in fact committed no fraud in

connection with the Clarke article. As to this, we refer

to the argument under the Second Point in our brief in

the Hazel-Atlas case, No. 398, pages 43-53. Hence the

“unclean hands” doctrine of. the — Driller cases

has no application here. a

The charge of “unclean hands” is completely nega-

tived by the fact that not only was the Clarke article

true but Hartford’s counsel believed it to be true, and

properly deemed it to be Clarke’s own article, when they

referred to it in the Patent Office (Hazel R. 53-54, 92)

and when they referred to it in their — of e

, brief — R. 56).

Finally. as the court below correctly held (R. 870 8

the decision in the Hazel infringement suit was reached

wholly independently of the Clarke article. This is

shown in detail under the Second Point of the argument

in our brief in the Hazel case at No. 398, pp. 50-53.

*

**

Seventh Point :

The writ of certiorari should be dismissed because

the judgment below was based on several grounds,

malnly of a factual nature and each sufficient to dispose

of the case.

We hereby incorporate by reference our argument

under the Sixth Point in our brief in No. 398, pages 73-5.

Vv

CONCLUSION |

The judgment below should be affirmed, or in the al-

ternative, the writ of certiorari should be dismissed. —

Respectfully submitted,

WALTER J. —

Attorney for Respondent.

FRANCIs W. COLE,

Epcar J. Goopricn,

James M. CARLISLE,

N Of Counsel.

January, 1944.

*

0