Petition for a Writ of Certiorari — Noland v. Noland
Supreme Court brief1940
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IN THE
Supreme Court of the United-States—
October Term, 1940 ys ay
S) Sh i Js
NO... 4--49-% 2 “—s, : 4
WILLIAM DosTER NOLAND,
Petitioner,
vs.
Vyoia Buss Notanp, also known as Vyola Bubb Lough-
man, and WILFRED L. FARRAR,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE NINTH CIRCUIT, AND
BRIEF IN SUPPORT THEREOF.
Carvin S. MAukK,
Suite 305-306 Continental Building,
408 South Spring Street, Los Angeles, California,
Counsel for Petitioner.
Catvin S. MaukK,
Of Counsel.
Parker & Baird Company, Law Printers, Los Angeles.
ADIOS IE OTL TIED ON OTE A SINE MES EMILE SD AEE PE ONE ENGI MES TENG INT 1 BN NAR AMIEL
Pt CR A II BARES OG NOS AEDS Mn, pe BE ena
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SUBJECT INDEX.
PAGE
i. I ap aE a pCa anne nD reap E Pade Sy aR aca lenintoep Sales 1
Opinion of the Court Below............-.----.:.-:ceceee cect oe ie -
Recah eal Si II cis sweets ct ctsiepcadieuivaaceg ino tieancipavanmeneaantens 2
The Questions Presented.........--.-..-------:-:scseececreerereeeeees sakcbeege ties 6
Reasons for Granting the Writ of Certiorarti................- 7
i.
The Circuit Court of Appeals Have in This Matter Decided an
Important Federal Question in Conflict With the Applicable
Decisions of the Supreme Court of the United States............
i.
The Circuit Court of Appeals Have Decided an Important
Question of Law in Conflict With the Applicable Decisions
of the Supreme Court of the United States.....0..0....0...-. :
Ill.
The Circuit Court of Appeals Have Decided a Most Important
Question in Conflict With Applicable Decisions of the Su-
preme Court of the United States and Contrary to the Con-
stitution of than United Siitet a... cscs scscccticinsecsetee cep cancesnensnse-
IV.
The Circuit Court of Appeals Have Decided an Important
Question of Law in Conflict With Applicable Decisions ot
the Supreme Court of the United States and Contrary to the
Constitution and Federal Laws of the United States..............
: V.
The Circuit Court of Appeals Have Decided an Important
Question of Law in Conflict With Applicable Decisions of
the Supreme Court of the United States and Contrary to the
Provisions of the Constitution of the United States...
VI.
The Circuit Court of Appeals Have Decided an Important
Question in Conflict Wifh the Decisions of the Supreme
Court of the United States and in Conflict With the Weight
and Authority of Equity
Perrrrrrrrrrrr rt rirett titer ee
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16
26
ii.
PAGE
VII.
The Circuit Court of Appeals Have Decided an Important
Question in Conflict With the Applicable Decisions of the
Circuit Courts of Appeals, Courts of Equity of the United
States and in Conflict With Applicable Decisions of the
United States Supreme Courrt........................---cccsccses--sseseceesneeees 27
Conclusion ........ PETE, Tk FRE aed SS OR IO 33
Certificate of Verification.................. ESE TR Oe NTe Or e 34
INDEX TO SUPPORTING BRIEF.
Opinion of the Court Below....................-0-s-s-cscscseseeenseeessneseneneesenee 35
_ IE on cigiseccicensnninioninniesewennisvicmmncanneetto ssaceiicniabaiein 36
EE LES BOR ae Pe LO Oe 36
Specifications of Error Ki Canara 36
Argument 38
a.
Rights and Obligations of Contract Impaired Against Peti-
ep ONERRE SES MeOH Sear er OME Re RS ORE Te 38
II.
The Rights of Full Faith and Credit as Provided by the
Constitution of the United States Are Denied to Petitioner.. 40
III.
Petitioner Is Denied the Rights of a Ruling in Equity in an
Thera cesses eseees snr nansennntncnnen 43
IV.
Petitioner Is Denied Leave to Amend and Due Process of Law 45
V.
Petitioner is Subjected and Decreed to Pay Costs Unlawfully 46
VI.
Petitioner Is Entitled to Justice in Equity......... 47
Conclusion 48
ATS TEN oe et
«1 HBTS SEEN DEEL 5: LAST ITOEE
fabbiad sat StF Ait Einn Reet Tee! te ACRATO SED
ili.
TABLE OF AUTHORITIES CITED.
CASES. PAGE
American Express Co. v. Mullins, 212 U. S. 311...............2....... 25
American Surety Co. v. Baldwin, 287 U. S. 156......0.0..000000...... . 41
Atchison, T. & S. F. R. Co. v. Sowers, 213 U. S. 55................... 41
ins ©, Tee, Doe OE Fie 46
Bennet v. Butterworth, 11 How. (U. S.) 669, 13 L. Ed. 859... 32
Board of Liquidation v. Louisiana, 179 U. S. 622.20... 00... 39
Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. 342, 30 L. Ed.
a te Rca k alec alc ot inc eatin shies nian dalbonrcla Was nexenite 44
po Ee eee Be a Se >. See ee Ce ee
Burnes v. Scott, 117 U. S. 582, 6 Sup. Ct. 865, 29 L. Ed. 991... 47
Corser. Caeter Sind We, Di 0. Bi. Binsin scene scsi . 19
Chicago & Alton Ry. Co. v. Wiggins Ferry Co., 119 U.S. 615
Ei ey eae oA basal cecxey en mbascee pa bsriessaesdevestecoenn cbssaivaSacringcucnsnt 24, 42
Chicago, Rock Island & Pacific Ry. Co. v. Calicotte (C. C. A.
ce ry, We PR Bia, hs I a snncststcpractmicesnccnictetnne . 46
CN Wh TI FO vs scccersiemnstninssiccanionstinsneevaneanmncoens 23
err W. AREIORS, TD TEU, FG ioc ecnsss es ccnnsessincredssinsecorscssins 15
Dousies ¥. Rentucky, 166 UU. S. 406....n.c ane icceisseeieccecccinns 13, 39
Mranin ©; Tiras, FOU, Bo FBG oss sacscsewiscvcvsccececsciasetssccotneeseese 14
I We UO UIP Gs ie ec ciecteetcssayccinceensciccrpoeninuesnacccservannsons 24
Boebeett -w. Tverett, 215 U.S. Bian... enc cnccn nc ccecernicctenccersnedy 42
Porcmeiom wv. Termebawne, 95 U.S. G5 nine. cw cess cecter ete 15
Folsom v. Ballard, 70 Fed. 12, 16 C. C. A. 593.0... PME 48
French v. Barber Asphalt Paving Co., 181 U. S. 324..000.0....... 20
Georgia Power Co. v. Decatur, 261 U. S. 505............................ . 42
Seer , TR MIOEIN, FRE U.S BD naa sncsce. casei ccccscectanestecreeses 21
Graver v. Fauret (C. C. A. 7), 76 Fed. 257............... .29, 30, 31, 32
ee i mes, OE: INS Birch case sciceenosndewnsnceneeiadanbanaveds 15
Green Admix. v. Creighton, 23 Howard 98, 18 L. Ed. 419........ 27
ee x RC, FIG Fs i tens pscicrveasesnetntnsensbossveeg actos 23
PR We BO TT Ba. FOF ss ciseesinstssnierestesesepaienastnpspcssnsigonsenn 43
—-
rig
Ly
iv.
PAGE
Hollins v. Brierfield Coal etc. Co., 150 U. S. 371, 14 Sup. Ct.
i, wh. Ba. 208d... aS ie uc otaradcegaeuaenan 43
Holton v. Davis (C. C. A. 9), 108 Fed. 138..2.........---cceeeceeee 29
Ingraham v. Hanson, 297 U. S. 378.......-:--:eee:cee esse eesti 39
Johnson v. Waters, 111 U. S. 640, 28 L. Ed. OE iSicncdecnestennton 29
Kendall v. Creighton, 23 Howard (U. 5.) 90, 16 L. Ed. 419... 44
Kendig v. Deane, 97 U. S. 423.......---.:-::s:eseeseecececceeceseeecetteeees 26, 45
Kirby v. L. S. & M. S. Ry. Co., 120 U. S. 130, 7 Sup. Ct. 430,
Louisiana ex rel. Nelson v. St. Martin’s Parish, 111 U.S. 716... 15
Lynch v. United States, 292 U. S. 571 .....------.--s-ee cette 20
Marbury v. Madison (1 Cranch.), U. S. Reps. 5, pp. 61, 68, 69,
BO Fcc einen hanes dctrecnaogsnanesamntnseonsine 14
Marshall v. Holmes, 141 U. S. 589, 35 L. Ed. 870..................-.-- 31
Massie v. Watts, 6 Cranch. 148, 3 L. Ed. 180........+..---ssssssseee 29
=_— ae: ae af Se ¢ Aa eeeeenonenneRn ee omer 23
McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 424 U. S.
ee TF cies cecniecseveencagenten setasetnvwmemntnsnpedtamenensnemmepataneiee 44
Milwaukee County v. M. E. White Co., 296 U. S. 268.............. 7
Missouri v. Dockery, 191 U.S. 165.........0.....:-cscsescscscsseecosserssnenenees 42
Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447, 32 L. Ed.
ee a2 iii halk specie aivoa ietine tsiploshoniicedaai Smee 48
Morgan v. Beloit, 7 Wall. 614.................:ccs--sccsssscsesssneesssssseenneennsnes 47
a Se RE, i: Bits ctor ts ecienn nn cctanaiscnavieemietinmnivemnainvte 20
Murray v. Charleston, 96 U. S. 432.......ccccccsscsssesseceeeseesseeneeseneee 1S
Nat. Bank v. Insurance Co., 104 U. S. 54 ...u.0...0......ccscssosenass 47
Ochiltree v. Iowa R. Contracting Co., 21 Wall. 249.0000... 14
Ohio v. Chattanooga Boiler & Tank Co., 289 U. 5. 439............ 24
Planters’ Bank v. Sharp, 6 How. 301.....0.000000.- idcaostnasiah 15, 39
Seek B: Co. v. Pol. Ser. Com., 250 UU. S. 566........06...:005 28, 46
Robertson v. Pickhell, 109 U.S. GaB nas. sisveesnsserscecrsctovenecosonssest 24, 42
mee
SLIRELEE AS IOI OSI IA LEI LE LEI EME
RRS AUTOR IEETE
PAGE
Rogers v. Penobscot Mix. Co., 154 Fed. 606, 83 C. C. A. 380
..26, 45
Sawyer, In re, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402...... 44
Schenebeck v. McCrary et al., 298 U. S. 36........ PPE
ee. RCE BO Sl, Ba cisciccrccatoe sn dccem seed sacdeaeantmnces 21
Simmons v. Saul, 138 u. A AE IM aT eS TMS
Sistare v. Sistare, 218 U.S pth Siankkcewesenratnaeats 23
Se. Louis, 1. M&S. R Co.’ v. Taylor, 210 U.S. 281.......... 21
Stone v. Mississippi ex rel. Harris, 101 U. S. 8140000000000... 13
Sturges v. Crowinshield, 4 Wineat. 122. ........-.0.50 coo ccesecscceen 13
Truax v. Ralich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131... 8
Twining v. New Jersey, = WU. S.. She: NIE LO
Tyler v. Judges of the Court of Deibiebeitions 179 U.S. 405.... 21
Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82... 8
United States v. Judge Peters (Cranch. 5), U. S. Reps. 9, p.
RRR alee ee ee ATRL CEP NE CCRT TT SOREN Oe 9
Wameee Seates: wv. Fees, So ek, FING sini ccnccccesnovstcorens sanay HR
United States v. Lehigh Valley R. R. Co., 220 U. S. 287........26, 45
United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93.0... 31
United States ex rel. Von Hoffman v. Quincy, 4 Wall. 535....14, 15
Venner v. Great Northern R. Co., 153 Fed. 408; affirmed 209
i. Se 2 oe Sep. 0 ey Se Be: GO nk. a
Viclet Trapping Co. v. Grace, 297 VU. S.. 199... 2... 39
a Te NR, TOE ES Be II ae en cscs ecssisnccaghdecnsyenccsoess 21
Wagg v. Herbert, 215 U. S. 546, 30 Sup. Ct. 218, 54 L. Ed.
Walker v. Whitehead, 16 Wall. 314.000.0000... dn cab ce PRONE
Whitcomb v. Schultz, 223 Fed. 268, 138 C. C. A. 510... ... 48
Williamson v. Krohn, 66 Fed. 655, 13 C. C. A. 668.000.0000... 47
Wisconsin v. Pélica Ins. Co., 127 U.S. 265..2...0.....c0cc0. 6000.00... 23
Worthen (W. B.) Co. ex rel. Street Improv. Dis. v. Kava-
I, os. Wy: ie cecib ebsickacentcingenecibnnbinlinidslainssinhicoinieantieoen 15
Mrscrseer ree
vi.
Law REVIEWS.
Cook, Powers of Courts of Equity, 15 Columbia Law Review,
EIDE DE ALU OAL aT 32
The Relations Between Equity and Law (1913), 11 Michigan
Law Review 537; reprinted in (1923) Fundamental Legal
Conceptions, 131, Prof. Wesley N. Hohfeld...............-.------- 32
STATUTES.
Act of April 20, 1871, c. 22, Sec. 1, 17 Stat. 13.02 9
Act of April 20, 1871, ¢. 22, Sec. a gn | Seanenmereneelrenee 8, 19
Act of July 21, 1861, c. 33, 12 Stat. 284.2000... eee esteetees 8, 19
Act of March 3, 1911, c. 231, Sec. 24, Par. 14, 36 Stat. 1092.... 9
Bituminous Coal Conservation Act of 1935, 49 Stat. 991...........- 19
Code of Laws of the United States of America; R. S., Sec.
1980; Chapter III, Civil Rights, Title 8, Sec. 47, Subd. ©) Pe
Revised Statutes 563, Par. 12; Sec. 629, Par. 16..........-.--.--+0++-+ 9
Revieed Statutes, Sec. 1979... cece icccce cece eeeccetcteesensestesecnnnsoncce 9
Revised Statutes, Sec. 1980; Chap. 3, Civil Rights, Title 8,
ie Te SN arisen depen es aovenntanemcorinsn nec tenereboasaepesivavanionsns 19
United States Codes, Title 28, Sec. 41, Subd. (14)... 9
United States Codes, Title 8, Sec. 43.............-..::ccececcesesseceeeeenemeees 9
United States Constitution, Art. I, Sec. 10............0 cee 13, 38
United States Constitution, Art. IV, See. 1.0.0.2. 22, 41
United States Constitution, Art. VI, Clause 2.........0.0.00...- ee 25
United States Constitution, Art. XIV, Sec. 1.0.2.2... eeeeeeeeeee 42
United States Constitution, Fifth Amendment......................-......--- 20
United States Constitution, Fourteenth Amendment.....................- 20
TEXTBOOKS.
Cooley’s Constitutional Limitations, 4th Ed., 56, *45.............--- 25
Cooley’s Constitutional Limitations, p. 159 et seq... 25
Pomeroy on the Constitution, p. 17 -.........2-::::ssecseecses ess ecseeeeeseeneneeees 28
Pomeroy on the Constitution, p. 94.0.0... hha jadsishclnasioginanaie 28
1 Story, Equity Jurisprudence, Sec, 187......ssscsecsessessesssceseess 48
CRE
EX.
$5 SRO PT.
IN THE
Supreme Court of the United States
October Term, 1939
WittiAmM Doster NOLAND,
Petitioner,
VS.
VyoLa Buss NoLtANnp, also known as Vyola Bubb Lough-
man, and Witrrep L. FARRAR,
Respondents.
PETITION FOR WRIT OF CERTIORARI AND
SUPPORTING BRIEF.
To the Honorable Justices, the Supreme Court of the
United States:
William Doster Noland, the above named _ petitioner,
prays that a writ of certiorari be issued by this Court
to review a judgment of the Circuit Court of Appeals for
the Ninth Circuit, entered on the 26th day of April, 1940
[R. 129], affirming a judgment of the United States Dis-
trict Court for the Southern District of California, Cen-
tral Division; and in this behalf petitioner respectfully
shows:
ae,
Opinion of the Court Below.
The opinion of the Circuit Court of Appeals for the
Ninth Circuit was rendered on the 26th day of April,
1940, and is set forth in the record at pages 122 to 128,
inclusive.
Statement of the Case.
(1) The Circuit Court of Appeals, Ninth Circuit, af-
firmed decree of District Court below in the dismissal of
complaint in equity without leave to amend [R. 103 to
104].
(2) That on December 13th, 1934, petitioner William
Doster Noland and respondent Viola Bubb Noland made
and entered into a contract effecting a property settlement
between said parties [R. 41 to 45] which settled any and
all questions relative to property or property rights of
either party to the controversy, and said contract further
provided that the respondent Vyola Bubb Noland accepted
the sum of $1200.00 as payment in full satisfaction of all
claims for alimony, either temporary or permanent, costs
or attorney’s fees in any action for divorce or separation
now pending, or in action, or actions which either party
may maintain against the other in the future, and said
contract is further accepted by respondent Vyola Bubb
Noland, in full satisfaction of any and all claims of every
kind, nature and description which said Vyola Bubb
Noland now has, or may hereafter have against petitioner
William Doster Noland, except as otherwise provided
[R. par. Seventh, pp. 43 to 44].
rae
LEIA
TARPS SN ae he”
GEcEeeenni os GIT
pen ae
(3) That on the 15th day of December, 1934, the re-
spondent Vyola Bubb Noland procured and had entered of
record, a divorce decree in the Eighth Judicial District
Court of the State of Nevada, in and for the County of
Clark, which said decree of divorce provided among other
things, that petitioner was to be allowed to see and visit
his minor child William Doster Noland, Jr., at any and
all reasonable times [R. 46 to 48]. Respondent Vyola
Bubb Noland, at all times immediately following said de-
cree of divorce rendered by said District Court of the State
of Nevada, refused to allow petitioner to sce or visit his said
minor child, at any time, and after unsuccesstul attempts
to have the State Courts of California enforce the judg-
ment of the decree of divorce of the said District Court
of the State of Nevada, which the said State Courts of
California refused to do in compliance with said decree of
divorce rendered by said Nevada Court | R. 57 to 68].
(4) That on December 23rd, 1937, petitioner William
Doster Noland made an application to the Eighth Judicial
District Court of the State of Nevada in and for the
County of Clark, for an amended decree of divorce | R. 48
to 51] which was decreed and entered by said Nevada
Court, wherein petitioner was given custody of his minor
child and any and all payments to respondent Vyola Bubb
Noland cancelled and stricken from the record, and said
respondent refuses to comply with said amended decree
of divorce, as adjudicated by said District Court of the
State of Nevada.
(5) That on the 14th day of April, 1938, the Superior
Court of California renders a judgment against petitioner,
Beers ¥
BP ee ee Le ere
oe
disregarding aforesaid contract and amended decree of
divorce by aforesaid District Court of the State of Nevada
[R. 52 to 54].
(6) That on June 27, 1939, the State Court of Cali-
fornia, issues order to show cause in contempt, disregard-
ing aforesaid contract and amended decree of divorce by
aforesaid District Court of the State of Nevada [R. 54
to 55].
(7) That on July 31st, 1939, petitioner William Doster
Noland files first amended civil bill of complaint in equity
enforcing foreign judgment and for conspiracy, etc., and
application for temporary restraining order; temporary
injunction and permanent injunction [R. 2 to 78].
(8) That on July 31st, 1939, the District Court of the
United States for the Southern District of California,
Central Division, issued a temporary restraining order
[R. 78 to 80].
(9) That on August 11th, 1939, the District Court of
the United States for the Southern District of California,
Central Division, issued a temporary injunction [R. 80
to 82].
(10) That on August 17th, 1939, respondent Vyola
Bubb Noland filed an affidavit in support of motion to dis-
miss in aforesaid District Court of the United States,
which said affidavit conflicts with the record [R. 86 to
93].
(11) That on August 22nd, 1939, petitioner filed a
notice and motion to take pleadings of respondents off the
files [R. 93 to 95].
LL Teal ae ee SRR Te Sea
SMe ess LA
PPR INT AES
BES Si ik SA, See
WBRBBS TSMR £0
iii
(12) That on September 23rd, 1939, the aforesaid
District Court of the United States filed a memorandum
of ruling on defendants’ motion to dismiss | R. 96 to 103].
(13) That on September 23rd, 1939, the aforesaid
District Court of the United States entered a judgment
|R. 103 to 104].
(14) That on October 23rd, 1939, petitioner filed notice
of appeal to the United States Circuit Court of Appeals,
Ninth Circuit [R. 105].
(15) That on November 4th, 1939, petitioner filed as-
signment of errors [R. 105 to 107].
(16) That on December 5th, 1939, petitioner filed
statement of points and designation of documents and
proceedings upon which appellant relies upon appeal |R.
109 to 117].
(17) That on April 12, 1940. the United States Citcuit
Court of Appeals, Ninth Circuit, made an order of sub-
mission, and the matter was submitted to the Court for
consideration and cause [R. 121].
(18) That on April 26, 1940, the United States Circuit
Court of Appeals, Ninth Circuit, made an order directing
filing of opinion and filing and recording decree |R. 121},
and the Court rendered an opinion [R. 122 to 128] and
also a decree of judgment affirming the judgment of the
District Court below [R. 125].
(19) That on June 5, 1940, the Circuit Court of Ap-
peals, Ninth Circuit, made an order denying petition for
rehearing |R. 130], and,
(20) On June 10, 1940, the Circuit Court of Appeals
made ~an order staying issuance of mandate [R. 130 to
131].
itil
The Questions Presented.
The Circuit Court of Appeals held:
In effect, that the “First Amended Civil Dill of Com-
plaint in Equity” be dismissed without leave to amend
upon the ground of not being within the jurisdiction of
the District Court, and so affirmed by the Circuit Court
of Appeals.
Questions arise as follows, to-wit:
1. Whether the first amended bill of complaint in
equity states a matter of federal jurisdiction.
2. Whether the matter involved is of federal juris-
diction.
3. Contract rights, under the State of Nevada and the
United States of America, as a federal and constitutional
matter.
4. Local, political and philosophical prejudicial influ-
ence and affluence of Ventura County, State of California.
5. Full faith and credit of the judgment rendered in an
amended decree of divorce by the Eighth Judicial District
Court of the State of Nevada, in and for the County of
Clark, as provided by the Constitution and Federal Laws
of the United States of America.
6. Is the denial of leave to amend a bill of complaint
in equity a denial of due process of law.
7. The supremacy of equity over law, as interpreted
by fundamental legal conceptions, powers of courts of
equity, court of chancery, and as determined by the
Supreme Court of the United States.
5 RTE, LORI TRY SO
RT.
a,
REASONS FOR GRANTING THE WRIT OF
CERTIORARI.
The Circuit Court of Appeals Have in This Matter
Decided an Important Federal Question in Con-
flict With the Applicabte Decisions of the Supreme
Court of the United States.
The holding of the Circuit Court of Appeals set forth
under the caption, “The Questions Presented,” subdivision
1, the question of whether the first amended bill of com-
plaint in equity states a matter of federal jurisdiction.
Where suits to enforce laws of one state are entertained
in courts of another on principles of comity, Federal
District Courts sitting should entertain them if they do
not infringe on federal law:
Milwaukee County v. M. E. White Co., 296 U. S.
268 (1935),
and petitioner contends that he has been deprived of his
rights and privileges, and to deprive a citizen of rights
and privileges in a conspiracy by persons named as re-
spondents in above cause and when a person is injured
in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have
an action for the recovery of damages, occasioned by
such injury or deprivation, against any one or more of
the conspirators: FE
Chapter II!, Civil Rights, Title 8, Sec. 47, subd.
(3), Code of Laws of the United States of
America; R. S., Sec. 1980;
a ws
From Act July 31, 1861, ¢. 33, 12 Stat. 284;
Act April 20, 1871, c. 22_Sec. 2, 17 Stat. 13,
and the first amended bill of complaint in equity alleges
fraud. and courts of equity have jurisdiction in United
States Courts to relieve in all cases of fraud:
Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340,
36 L. Ed. 8&2,
and the acts complained against by petitioner is an un-
constitutional invasion of a property right depriving peti-
tioner of rights granted under federal laws and the Con-
stitution of the United States, therefore, a matter of
federal jurisdiction is stated: ;
Truax v. Ralich, 239 U. S. 33, 36 Sup. Ct. 7, 60
L. Ed. i131.
Il.
The Circuit Court of Appeals Have Decided an Im-
portant Question of Law in Conflict With the
Applicable Decisions of the Supreme Court of the
United States.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
2, “whether the matter involved is of federal jurisdiction.
Of all suits at law or in equity authorized by law to be
brought by any person to redress the deprivation, under
color of any law, statute, ordinance, regulation, custom,
or usage, of any state, of any right, privilege, or im-
munity, secured by the Constitution of the United States,
or any right secured by any law of the United States
providing for equal rights of citizens of the United
SORE TEES
OG LPT LEN
villi
States, or of all persons within the jurisdiction of the
United States:
Code of laws of the United States, as follows:
U.S. C., Title 28, Sec. 41, subd. (14);
R. S. 563, par. 12; Sec. 629, par. 16;
Mar. 3, 1911, c. 231, Sec. 24, par. 14, 36 Stat.
1092,
and every person who causes to be subjected, any citizen
of the United States, to the deprivation of any rights,
privileges or immunities secured by the Constitution and
laws, shall be liable to the party injured in an actien at
law, suit in equity, or other proper proceedings for
redress:
Code of Laws of the United States, as follows:
w: &.,, Pile 3, See. 45:
mn. DS, Sec. 2979;
From Act April 20, 1871, c. 22, Sec. 1, 17 Stat. 13,
and if legislatures and courts of the several states may at
will annul the judgments of the courts of the United
States, supported by the Constitution of the United States.
and destroy the rights acquired under those judgments,
the Constitution itself becomes a solemn mockery: and
the nation is deprived of the means of enforcing its laws
by the instrumentality of its own tribunals. So fatal a
result must be depreciated by all: and the people of one
state not less than the citizens of every other state, must
feel a deep interest in resisting principles as destructive of
the United States and its Constitution, and averting con-
sequences as fatal to themselves:
United States v. Judge Peters (Cranch. 5), U. S.
Reps. 9, p. 136,
="
Ill.
The Circuit Court of Appeals Have Decided a Most
Important Question of Law in Conflict With
Applicable Decisions of the Supreme Court of the
United States and Contrary to the Constitution of
the United States.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
3, “contract rights under the state of Nevada and the
United States of America, as a federal and constitutional
matter.”
Among the important matters involved in this matter
is a contract for property settlement, made and entered
into by and between the petitioner William Doster Noland,
and the respondent Vyola Bubb Noland, also known as
Vyola Bubb Loughman [R. 41 to 45], and the matter of
contracts is one of the most important parts of the Con-
stitution of the United States, in fact so important that
the honorable gentlemen who drafted the Constitution of
the United States, made the matter of contracts one of
the foremost thoughts of their minds, relative to the
Constitution, as under Article I, Sections 9 and 10, they
repeated, “No bill of attainder or ex post facto law shall
be passed,” prohibiting either the United States Congress
or any state from passing such legislation, and also they
prohibited, as follows: “No State ee
any Bill of Attainder, ex post facto Law, or Law im-
pairing the Obligation of Contracts, . . ..” and under
the provisions of the said contract for property settle-
ment by and between the said petitioner and respondent,
among the various obligations of said contract, was the
obligation of release as to certain liabilities, consisting as
follows: That the petitioner was not to be held responsi-
ae
nn oe
ble in any manner for the further payment of any attorney
fees, costs, court costs or otherwise, in any litigation
conducted by said respondent, such matters being fully
settled by the provisions of said contract, and also other
matters were fully settled, as the said contract reads in
part as follows:
This Agreement made and entered into this 13th
day of December, 1934, by and between William
Doster Noland, First Party, and Vyola Bubb Noland,
Second Party.
Now, Therefore, It is Agreed:
First: That, except as hereinafter specified, each
party hereto is hereby released and absolved from any
and all obligations and liabilities for the future acts
and duties of the other, and that each of said parties
hereby releases the other from any and all liabilities,
debts, or obligations of any kind or character incurred
by the other from and after this date. and from any
and all claims and demands, including all claims of
either party upon the other for support and mainten-
ance as wife or husband or otherwise, it being under-
stood that this instrument is intended to settle the
rights of the parties hereto in all respects, except as
hereinafter provided.
Seventh: First Party does hereby release any and
all claims to the sum of approximately $1200.00 here-
tofore obtained by Second Party from the safety
deposit box of the parties hereto, said sum being ac-
cepted by Second Party in full satisfaction of all
claims fer alimony, either temporary or permanent,
costs or attorney's fees in any action for divorce or
separation now pending, or in any action, or actions
which either party may maintain against the other
in the future, and said sum is further accepted in full
paw, |. ee
satisfaction of any and all claims of every kind,
nature and description which Second Party now has,
or may hereafter have against First Party, except as
otherwise provided herein.
Eleventh: Each party to this agreement hereby
solemnly and specifically avers that the foregoing
agreement has been entered into without undue in-
fluence or fraud or coercion or misrepresentation or
for any cause except as herein specified, said agree-
ment having been executed after both parties hereto
have had the advice of counsel.
Twelfth: It is agreed that the provisions of this
agreement shall be incorporated in any decree of di-
yorce which may be hereinafter obtained by either of
the parties hereto.
Wituiam D. Notanp, First Party.
Vyota Burs NoLanp, Second Party.
Signatures of the parties acknowledged before a
Notary Public.
The record shows, that, the respondent Vyola Bubb
Noland, and she is also the second party to the fore-
going contract, that the said respondent, has through and
by fraud procured judgments in courts as shown in the
record, disregarding the foregoing contract and its obliga-
tions on her part, and the obligations of this said con-
tract have been impaired to the detriment and serious
damage, to the extent of being irreparable injuries, losses
and damages, caused to petitioner hereof, regardless of
ee
PELE Be
eS
ee; ae
the provisions of the Constitution of the”Uhited States
of America, which provides as follows, to-wit:
No State shall . . . pass any Bill of Attainder,
ex post facto Law, or Law impairing the Obligation
of Contracts,
Article I, Section 10, Constitution of the United
States,
and the power to impair the obligations of contracts is
denied to states, but, nevertheless, the Superior Court of
the state of California, regardless of the constitutional
provision impaired the obligations of the foregoing con-
tract, detrimental and injurious to petitioner, as shown in
the record [R. 52 to 55], and likewise judgment of the
United States District Court below [R. 103 to 104], and
likewise judgment of the Circuit Court of Appeals, Ninth
Circuit |R. 129], and the contract clause aforesaid of
the Constitution of the United States is a limitation on the
power of the states, whatever form it may assume, if a
contract right is thereby impaired:
Murray v. Charleston, 96 U.S. 432, 444 (1878):
Sturges v. Crowninshicld, 4 Wheat. 122 (1819),
and the contracts which the Constitution of the United
States protects are contracts and the rights of such con-
tracts such as the aforesaid contract hereof, as made by
and between the said petitioner and the said respondent,
as this said contract relates to property rights:
Stone v. Mississippi ex rel. Harris, 101 U.S. 814
(1880) ;
Douglas v. Kentucky, 168 U. S. 488 (1897),
OY EATER III BBE SP
ay
OS
ie
and if courts are to regard the C onstitution of the United
States as the supreme law of the land, and the Constitu-
tion is superior to any ordinary act of the Legislature, the
Constitution and not such ordinary act, must govern the
case to which they both apply, and when the statute rule
intervenes the contract, the statute rule is inoperative:
Marbury v. Madison (1 Cranch), U. S. Reps. 5,
pages 61, 68, 69, 70, 71 and 72,
and in considering a contract, the actual conditions of the
contract cannot be ignored; the Court ought not, by
overnice refinements or through assumptions out of
harmony with patent facts, to facilitate the practical
destruction of admitted legal obligations:
United States ex rel. Von Hoffman v. Quincy,
4 Wall. 535 (1867),
and the contract clause of the Constitution protects rights
under the contract and not mere incidental advantages :
Ochiltree v. Iowa R. Contracting Co., 21 Wall. 249,
253 (1875),
and the obligation of a contract includes everything within
its obligatory scope; among these elements nothing is
more important than the means of enforcement; this is
the breadth of its vital existence, and without it the con-
tract as such ceases to be; the ideas of right and remedy
are inseparable :
Edwards v. Kearzey, 96 U. 5. 595, 600 (1878),
AYERS ET
aS is
J, ro Ml a
Gs reso
vee ER
and the obligation of contract is in fact the law which
binds the parties to perform their agreement:
Curran v. Arkansas, 15 How. 304 (1853),
and it is the means which, at the time of its creation:
Worthen (W. B.) Co. ex rel. Street Improv. Dis.
v7. Kavanaugh, 295 U.S. 56 (1935),
the law affords for its enforcement:
Walker v. Whitehead, 16 Wall. 314 (1873);
Louisiana ex rel. Nelson wv. St. Martin's Parish,
111 U. S. 716, 720 (1884),
and the constitutional prohibition against impairment of
contract obligations has no reference to the degree of
impairment:
United States ex rel. Von Hoffman v. Quincy, 4
Wall. 535 (1867),
and the extent of the impairment is not material:
Green vw. Biddle, 8 Wheat. 1 (1823);
Farrington v. Tennessee, 95 U.S. 683 (1878),
and it is not a question of degree; the obligation must not
be diminished at all:
Planters’ Bank wv. Sharp. 6 How. 301 (1843).
IV.
The Circuit Court of Appeals Have Decided an Im-
portant Question of Law in Conflict With Ap-
plicable Decisions of the Supreme Court of the
United States and Contrary to the Constitution
and Federal Laws of the United States.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
4, “Local political and philosophical prejudicial influence
and affluence, of Ventura County, State of California.”
The record shows that local political and philosophical
prejudicial influence and affluence of Ventura County,
State of California, have played an important part in the
matters involved in this cause [R. 30, par. XXIY4],
wherein petitioner was arrested outside the city of Ven-
tura on the highway, while on his way to attend a hearing
of the matter involved herein, before the Superior Court
of the State of California in and for the county of Ven-
tura, and after being arrested on the highway on a
trumped up charge of speeding, your petitioner was
brought before Judge Loughman, a Justice of the Peace
in the city of Ventura, California, and husband of the
respondent Vyola Bubb Noland, divorced wife of your
petitioner, and the said Judge Loughman presiding as
the Court during the hearing, viciously in a most vitrolic
manner attacked your petitioner for supposedly disturbing
his home with the said respondent Vyola Bubb Noland
through and by the litigation being conducted in the mat-
ters involved in the cause hereof, and after said vicious
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and vitrolic attack the said Judge Loughman = imposed
threats and a fine upon your petitioner, which in itself as
a procedure, takes on an aspect that the political organiza-
tion in said instance, conduct and administrate justice in
a totalitarian or soviet formation of their own liking,
against your petitioner, instead of as provided under the
Constitution of the United States, and upon the said re-
spondent Vyola Bubb Noland. preparing for her marriage
to the said Judge Loughman, she sent to your petitioner
and asked your petitioner to give her an affidavit, setting
forth that your petitioner had not been baptized in any
church, which your petitioner refused because your peti-
tioner had been baptized, the said respondent representing
that it was necessary to have such affidavit for the pur-
pose to marry the said Judge Loughman in the Catholic
Church as the said Judge was a Catholic, and your peti-
tioner not being a Catholic Church member, but instead
of such your petitioner is a Protestant, therefore, the said
respondent married the said Judge Loughman without said
affidavit, representing that she could thereby become a
member of the Catholie Church; and thereby use the in-
fluence and affluence of said church against your peti-
tioner in her litigation against petitioner hereof, which
was thoroughly demonstrated in the hearing held before
the said Judge Loughman as set forth in the record
hereof at page 30, paragraph NX1!4, and also set forth
in the record hereof, at page 29, paragraph NX1'4, and at
page 30, paragraph XXII, and is further set forth in the
record in the affidavit of William Doster Noland, peti-
tioner hereof, at pages 39 and 40 of said record, par-
a
ticularly in paragraphs 4 and 5 of said affidavit on page
40 of record hereof, and is further demonstrated [R. 52
to 55], all of which shows without any question of doubt,
that the local political and philosophical prejudicial influ-
ence and affluence of the Catholic Church in Ventura
County, State of California, have been used by the said
respondent to the extent that your petitioner could not
under any color of justice or law receive either justice or
provisions of the law as provided by the Constitution of
the United States of America, in the said County of Ven-
tura, State of California, and the said local prejudice of
Ventura County, State of California as used against
your petitioner is further supported by affidavits of Wil-
liam Doster Noland, petitioner hereof [R. 56 to 68], and
the said affidavits filed in the District Court below fully
establish that the local political and philosophical prejudicial
influence and affluence set forth the fact that your peti-
tioner had reason to believe and did believe that, from
the prejudice of said influence and affluence, he was un-
able to obtain justice in any Court of Ventura County,
State of California.
The foregoing record, establishes beyond any doubt
that the local prejudice was outstanding against your peti-
__ tioner in Ventura County, State of California, coupled to
the conspiracy and fraud as alleged in the first amended
bill of complaint in equity, is a deprivation of citizenship
rights and privileges, and to deprive a citizen of rights or
privileges in a conspiracy of two or more persons, and
also depriving a citizen of having exercised any right or
privilege of a citizen of the United States, the party so
A Ba
tin
injured or deprived may have an action for the recovery
of damages, against one or more of the conspirators, and
said action may be prosecuted in the United States Courts:
Chapter 3, Civil Rights, Title 8, Section 47, Subd.
(3): R. S. Section 1980;
From Act July 31, 1861, c. 33, 12 Stat. 284;
Act April 20, 1871, c. 22, Sec. 2, 17 Stat. 13,
and in the foregoing procedure such as the record shows
and as set forth under this paragraph IV hereof, 1s a
deprivation and denial of rights, privileges, personal lb-
erty, property and property rights, as the conspirators
named as respondents herein, placed themselves in the
position of being the majority, and placed your petitioner
in the position of being in the minority, is very similar
to a matter wherein the majority, under the provisions of
the Bituminous Coal Conservation Act of 1935 (49 Stat.
991), which authorized a specified majority of producers
and miners to fix maximum hours, and minimum wages
within the several districts, compulsory upon the minority
by virtue of the tax rebate (13% per cent of the 15 per
cent tax on coal at the mine) to members of the coal code,
and denial of Government purchases, was held to be un-
constitutional interference with personal liberty and private
property : )
Carter v. Carter Coal Co., 298 U. S. 238, 311
(1936),
and the aforesaid local prejudice have deprived and denied
your petitioner his contract rights under aforesaid con-
tract by and between petitioner and respondent Vyola
.
= os
Bubb Noland, and valid contracts are property, whether
the obligor be a private individual or otherwise and rights
of contracts are protected by the Constitution of the
United States:
Lynch v. United States, 292 U. 5. 571, 579 (1934);
Fifth Amendment, Constitution of United States,
and the aforesaid local prejudice which has been exercised
against your petitioner in Ventura County, State of Cali-
fornia, is a denial of due process of law, and the general
scope of the Fifth Amendment of the Constitution is
frequently measured by the settled scope of the Fourteenth
Amendment as against the States, and the Court has pro-
ceeded on the assumption “that the legal import of the
phrase ‘due process of law’ is the same in both amend-
ments”:
French v. Barber Asphalt Paving Ca, Wi: &
324, 329 (1901),
and “if any different meaning of the same words as they
are used in the Fourteenth Amendment (and in the Fifth
Amendment) can be conceived, none has as yet appeared
in a judicial decision”:
14th Amendment, Constitution of United States;
Twining v. New Jersay, 211 U. S. 312, 326 (1932),
and the provision of the 14th Amendment of the Constitu-
tion of the United States for the protection of your peti-
tioner, in his rights of liberty, property and property
rights, and due process of law, it is old as a principle of
civilized government, and it is found in the Magna
Charta; it is a guaranty against any encroachment upon
an acknowledged right of citizenship :
Munn v. Illinois, 94 U. S. 113, 123-124 (1877),
ap ak uk nt ei caleat Melee le aa ame
etic.
and the protection of the Fourteenth Amendment of the
Constitution is for the benefit of those who are injured
through the invasion of personal or property rights:
Tyler v. Judges of the Court of Registration, 179
U.S. 405, 410 (1900),
and it must be observed that the prohibitions of the Four-
teenth Amendment cf the Constitution refer to all the
instrumentalities of the state, to its legislative, executive,
and judicial authorities, and, therefore, whoever by virtue
of public position under a state government deprives an-
other of any right protected by said amendment, violates
the constitutional inhibition, and the constitutional prohi-
bition has no meaning, if an agent of a state has power
to annul or evade it:
Ex parte Virginia, 100 U.S. 339, 346-347 (1880) :
Gibson v. Mississippi, 162 U.S. 565 (1896),
and these principles have been enforced, in which it was
held that the prohibitions of the Fourteenth Amendment
of the Constitution extended to all acts of the state, whether
through its legislative. its executive, or its judicial authort-
ties :
Scott v. McNeal, 154 U.S. 34 (1894),
and when the suit is one arising under the laws of the
United States, and, under the acts of Congress, the Su-
preme Court of the United States may review the decision
of the state court on the federal question raised:
St. Louis, 1. M. & S. R. Co. v. Taylor, 210 U. S.
281 (1908).
— YL EOI ORTELE SEN SA EE Refer
i
SPAN
Reve
ae, am
¥.
The Circuit Court of Appeals Have Decided an Im-
portant Question of Law in Conflict With Ap-
plicable Decisions of the Supreme Court of the
United States and Contrary to Provisions of the
Constitution of the United States.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
5. “Full faith and credit of the judgment in an amended
decree of divorce by the Eighth Judicial District Court of
the State of Nevada, in and for the County of Clark, as
provided by the Constitution of the United States of
America.”
The record shows that on the 23rd day of December,
1937, that the Eighth Judicial District Court of the State
of Nevada, in and for the County of Clark, made and
entered an amended decree of divorce in favor of peti- |
tioner, and that the Superior Court of the State of Cali-
fornia, in and for the County of Ventura, had proceedings
and held hearings opposing and restraining the said
amended decree of divorce, regardless of the fact that the
Constitution of the United States provides :
“Pull faith and credit shall be given in each state
to the public acts, records, and judicial proceedings
of every other state. And the Congress may by
general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and
the effect thereof.”
Constitution of United States, Article IV, Sec. 1.
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ty
swoon
A number of cases have ‘held that under the full faith
and credit clause a sister-state judgment cannot be im-
peached for fraud, but such attack must be made in the
state where the judgment was rendered:
Christmas v. Russell, 5 Wall. 290 (1866);
Maxwell v. Stewart, 21 Wall. 77 (1875);
Simmons v. Saul, 138 U.S. 439,
and dicta are found in Supreme Court cases, that a judg-
ment by a state may not be impeached for fraud as pro-
posed in the record by respondents:
Hanley v. Donoghue, 116 U. S. 1, 4 (1885);
Wisconsin v. Pelica Ins. Co., 127 U.S. 265 (1888),
and it has-been held that a judgment enforceable in the
state where rendered must be given effect in another state
under the full faith and credit clause:
Sistare v. Sistare, 218 U. S. 1 (1910),
and the enforcement of claims otherwise within protection
of the full faith and credit clause cannot be denied by
courts, when courts have general jurisdiction of the sub-
ject matter and the parties:
Broderick v. Rosner, 294 U. S. 629 (1935),
and the record shows that a temporary restraining order
made ex parte without notice and without a return date
was issued by the Superior Court of California, Ventura
County, against the enforcement by petitioner, of the
amended decree of divorce made and entered by the Eighth
ae
Judicial District Court of the State of Nevada, in and for
the County of Clark, regardless of the fact that the courts
of one state have no jurisdiction to enjoin the enforce-
ment of judgments at law obtained in another state:
Embry v. Palmer, 107 U. S. 3, 13 (1883),
and the records, judicial proceedings of one state shall be
given the same effect in courts of another state as they
have by the laws and usage at home:
Chicago & Alton Ry. Co. v. Wiggins Ferry Co.,
119 U. S. 615, 622 (1887).
And a judgment of a state court, when the question
is presented for decision in a court of another state, is
entitled to as much force and effect as it has in the state in
which it was rendered:
Ohio v. Chattanooga Boiler & Tank Co., 289 U. S.
439 (1933),
and no greater effect can be given than is given in the
state where rendered:
Robertson v. Pickrell, 109 U. S. 608, 610 (1883),
and the extent of conclusiveness is that when duly pleaded
and proved, judgments of other states have the effect of
being not merely prima facie evidence but conclusive proof
of the rights thereby adjudicated :
Everett v. Everett, 215 U. S. 203 (1909),
ROTA Raita a ASR em ARe HNN nr gatan tye ge
PRR RETA SRY pe gaa ater
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and a judgment cannot be impeached either in or out of
the state by showing that it was based on a mistake of
law:
American Express Co. v. Mullins, 212 U.S. 311,
312 (1909).
And it is the duty of courts to support each and every
right guaranteed by the Federal Constitution and courts
are not at liberty to decide a cause contrary to the pro-
visions of the Constitution of the United States:
Cooley's Constitutional Limitations, and cases
cited (p. 159, ct seq.), and,
and,
Constitution of United States, Article VI, Clause 2,
reads in part as follows:
“This Constitution and the laws which shall be
made in pursuance thereof; . . . shall be the su-
preme law of the land; and the judges in every state
shall be bound thereby, anything in the Constitution
or laws of any state to the contrary notwithstand-
ing.”
And the Constitution of the United States is the funda-
mental law of the United States in opposition to which
any order or law must be inoperative:
Cooley's Coustituiional Limitations, 4th Ed. 56
(*45).
RTO NET ION TEN
—26—
¥i.
The Circuit Court of Appeals Have Decided an Im-
portant Question in Conflict With the Decisions
of the Supreme Court of the United States and in
Conflict With the Weight and Authority of
Equity.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
6 “Is the denial of leave to amend a bill of complaint in
equity a denial of due process of law.”
The record shows that the District Court below dis-
missed without leave to amend and affirmed by the Circuit
Court of Appeals for the Ninth Circuit, and it has been
held, that to deny leave to amend a bill of complaint in
equity, is a denial of due process of law and is a reversi-
ble error:
Kendig v. Deane, 97 U. S. 423;
Rogers v. Penobscot Mix. Co., 154 Fed. 606,
and in the case of:
United States v. Lehigh Valley R. R. Co., 220
U.S. 287,
the United States proceeded, both by equity and
mandamus, against certain railroad companies, and Mr.
Chief Justice White delivered the opinion, saying:
“Deciding as we do, that error was committed in
denying leave to file proposed amended bill, the decree
below is reversed and the cause remanded with direc-
tions for further proceedings in conformity with this
opinion.” ,
|
a An
VIL.
The Circuit Ceurt of Appeals Have Decided An Im-
portant Question in Conflict With the Applicable
Decisions of Circuit Courts of Appeals, Courts of
Equity of the United States, and in Conflict With
Applicable Decisions of the United States Supreme
Court.
The holding of the Circuit Court of Appeals set forth
under the caption “The Questions Presented,” subdivision
7, “The supremacy of equity over law, as interpreted by
fundamental legal conceptions, powers of courts of equity,
court of chancery, and as determined by the Supreme
Court of the United States.”
A Court of Equity in the United States Court have
jurisdiction regardless of state courts and are not bound
or modified by state laws or practice:
Green Admix. 7. Creighton, 23 Howard 98, 108,
18 L. Ed. 419.
And United States Courts sitting in equity are not
powerless by statutory provisions, but may apply their own
rule:
Kirby v. L. S. & M. S. Ry. Co., 120 U. S. 130, 7
Sup. Ct. 430, 30 L. Ed. 569,
and if the judgments of the United States Courts may be
annulled by the several states, the Constitution itself be-
comes a solemn mockery:
United States v. Judges, 32 Fed. 714,
SIEBER,
a
and in referring to the “Constitution of the United States,”
Pomeroy on the Constitution, a rece nized authority, says:
At page 94:
“75 4 fundamental statute of the whole people, passed
by them in their organic capacity, binding upon them-
selves and upon all the agents which they have set
up and clothed with limited functions. Beyond this
statute neither congress nor president can lawfully
go; going beyond their acts are nullities and not
laws,”
and at page 17:
and
“Every statute, every administrative act, every exer-
cise of jurisdiction must be tested by, and conform to,
this fundamental utterance of the people’s sovereign
will,”
on the same page, he states:
“is Jaw to legislatures, to executives, and to courts,
both of the nation and of the states. The Constitu-
tion of each commonwealth is, in like manner, a law
to its local authorities. [I:very statute, every ad-
ministrative act, every exercise of jurisdiction must
be tested by and conform to this fundamental utter-
ance of the people’s sovereign will.”
And whatever power may be granted, no power can
be given to do what the laws of the United States forbid,
whether they call their action administrative or judicial:
Penn. R. Co. v. Pol. Ser. Com., 250 U. S. 566,
and allegations of fraud, such as are set forth in the
record, are sufficient when made on information and belief,
for jurisdiction in a court of equity of the United States,
a
and it has been held that it is sufficient for the court to
consider the matter:
Holton v. Davis (C. C. A. 9), 108 Fed. 138, 149,
and the Supreme Court have held the fact of being a
party does not estop a person from relief against fraud,
as it is generally parties to the action that are the victims
of fraud:
Johnson v. Waters, 111 U.S. 640, 28 L. Ed. 547,
556,
and a Court of Equity has jurisdiction to protect property,
even though in complying with the decree of the court
to perform acts beyond the jurisdiction of the court:
Massie v. Watts, 6 Cranch 148, 157, 3 L. Ed. 181.
And in a case very similar to the matter hereof before
the Court, in the case of:
Graver v. Fauret (C. C. A. 7), 76 Fed. 257,
the Court had before it a bill to enjoin a decree in equity
by a state court, wherein Graver brought a suit in equity
in the Superior Court of Cook County, Illinois, against
Faurot, alleging fraud, and a violation of confidential rela-
tionship in the sale of $15,000.00 of stock to him. All of
the evidence was in the hands of the defendants. They
filed an answer denying the charge of fraud. The Court
dismissed the bill upon this answer. It was afterwards
discovered the answer was false (and the answer of re-
spondents in this matter before the Court, in the District
Court below is false, wherein respondent Vyola Bubb
Noland supported her answer with an affidavit claiming
the procedure and decree of Nevada Court had not been
presented to the Superior Court of the State of Cali-
fornia, in and for Ventura County, when the affidavits of
PRAEE
EAT ERLE OO BOS
Peoere ess
a
petitioner show that said procedure of Nevada Court had
been presented to the said Superior Court of California
[R. pp. 57 to 60] in an excerpt of transcript of hearing
on February 7, 1938, and that the proceedings, records and
judicial proceedings of the Eighth Judicial District Court
of the State of Nevada, in and for the County of Clark,
were introduced in evidence before the said Superior Court
of California [R. pp. 65 to 66, par. IV subds. 1 and 2,
and Exhibit A, pp. 67 to 68], and the said affidavit of
respondent Vyola Bubb Noland [R. p. 92, par. 13] reads
as follows:
“That during said hearing of March 24, 1938,
William Doster Noland did not, and at all times did
not, seek to introduce in evidence the contract of set-
tlement heretofore referred to, or the Nevada decree
of divorce or the Nevada modification of said decree
of divorce, nor were any of said documents and rec-
ords ever introduced into evidence in the Superior
Court of the State of California, in and for the
County of Ventura,”
and such affidavit filed in the District Court in support
of motion to dismiss is a false answer very similar to the
case of Graver v. Faurot (CCA 7), Fed, 257, cited
hereof, whereupon this action of Graver v. Faurot was
brought in the Federal Court to set aside the former
Illinois State Court decree. The District Court below
had dismissed the complaint, and the Circuit Court of Ap-
peals in reversing it said:
“A decree for the respondents went as a matter of
course. There was practically a default on the part
of plaintiff, brought about by the false answers and
re
affidavits. Technically the answers were evidence at
the hearing but before the hearing they served the
distinct purpose of denying to the plaintiff intorma-
tion which the respondents were under duty to
furnish, and so of depriving him. before the test of
trial, of his standing in court. That was an ex-
trinsic, collateral fraud, distinct from and antecedent
to the use of answers as evidence at the hearing”:
Graver v. Faurot (C. C. A. 7), 76 Fed. 257, 262.
and the Court after stating the apparent contlict between
the parties in the cases as follows:
Marshall v. Holmes, 141 U. S. 589, 35 L. Ed.
870; and
United States v. Throckmorton, 98 U. S. 61, 25
L. Ed. 93,
the Court said:
“Tf there is here any inconsistency with the opinion
in United States v. Throckmorton, to which reference
was made, it was not the result of oversight. and
ought perhaps to be regarded as an intentional modi-
fication of the earher utterance. But whether there
is conflict between the two opinions, or how they are
to be reconciled, we need not consider. The present
case, if we have properly interpreted the facts al-
leged, is distinguished from both, and rests upon an
equity of which there can be no just denial. In reason
and good conscience a decree obtained as this is al-
leged to have been, ought to be annulled. There
can be ne consideration of public policy or of private
right on which it ought to stand. There can be and
ought to be no repose of society where for such
wrongs the courts are incapable of giving redress.
a
The decree of the Circuit Court is reversed and the
cause remanded with direction to overrule the motion
to dismiss the bill.”
Graver v. Faurot (C. C. A. 7), 76 Fed. 25/7, 263,
and the supremacy of equity over law, is for the purpose
of leveling of the inequalities of the law in a conflict be-
tween parties, as in many instances, sometimes the law
favors one party more so than the other, and in such case,
justice may be found only in equity, and not in law, there-
fore, in case of conflict as distinguished from concurrence,
a jural relation is substantively determined by the equita-
ble rule rather than the legal. Since, in any sovereign
state, there must, in the last analysis, be but a single
system of genuine law, since the various principles and
rules of that system must be consistent with one another,
and since, accordingly, all genuine jural relations must be
consistent with one another, two conflicting rules, the one
“legal” and the other “equitable” cannot be valid at the
saine moment of time; one must be valid and determina-
tive to the exclusion of the other. As a mere practical
matter, the equitable rule would ordinarily prove tri-
umphant because of the superior coercive procedure and
remedies of the Court of Chancery:
Bennet v. Butterworth, 11 How. (U. S.) 669, 13
L. Ed. 859;
The Relations Between Equity and Law (1913), 11
Michigan Law Review, 537, 553, 555, 557, re-
printed in (1923) Fundamental Legal Concep-
tions, 131, 133, 136, Prof. Wesley N. Hohfeld;
and see,
Cook, Powers of Courts of Equity, 15 Columbia
Law Review, 235-238 (1915).
sel aa
Conclusion.
Several questions of great importance are presented, but
the most outstanding question is a contract relative to
property and property rights, and full faith and credit of
a foreign judgment made and entered in the District
Cougt of the State of Nevada, and the fraud as set forth
in the record, which the Circuit Court of Appeals have
decided in conflict with the decisions of other Circuit
Courts of Appeals, Courts of Equity, the Supreme Court
of the United States, federal laws, and the Constitution
of the United States, which is clearly set forth in the
record and petition for writ of certiorari herewith, and
your petitioner respectfully submits the record on appeai
before this Honorable Court, including the proceedings
had before the Circuit Court of Appeals for the Ninth
Circuit.
Your petitioner respectfully submits the record and all
papers and pleadings on file herewith. This appeal is not
taken for the purpose of delay, but in the hope that your
petitioner will be able to obtain relief against the injustice
of the matters as set forth in the record to which your
petitioner has been subjected to in this matter.
Petitioner respectfully prays that the writ of certiorari
shall be ordered to issue.
Respectfully submitted,
CaLvIN S. Maur,
Solicitor for Petitioner.
CaLvIn S. MAuK,
Of Counsel.
nrg
SRAM! GDI int ee ——
s FURR AAT Li 6 SRR PA IL, POE ANE OSE) |
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Certificate of Verification.
State of California, County of Los Angeles—ss.
William Doster Noland, being first duly sworn, deposes
and says: That he is the petitioner in the above and
foregoing action; that he has read the foregoing and
within petition and that the allegations therein and thereof
are true as he verily believes and that the same is not
interposed for delay.
WILLIAM DostTER NOLAND,
Petitioner.
Subscribed and sworn to before me this 3rd day of
July, 1940.
(Seal) Epona M. TILTON,
Notary Public in and for the County of Los Angeles,
State of California.
My commission expires on July 20, 1940.
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