Petitioner for ReHearing — Neely v. Merchants Trust Co.

—

Supreme Court of the United States ee

OCTOBER TERM, 1940

No. 499

PPS PNE SINT ME A

FRANK TENNYSON NEELY,

Petitioner,

vs.

MERCHANTS TRUST COMPANY OF RED BANK,

NEW JERSEY, as ApmInistraTor oF THE EstaTE OF

Euiza A. 8S. Cater, DECEASED, ET AL.

PETITION FOR REHEARING.

Apert G. AVERY,

43 Cedar Street,

New York City,

Grorce Gorpon Battie,

30 Broad Street,

New York City,

Attorneys for Petitioner.

BATAVIA TIMES, LAW PRINTERS,

BATAVIA, N.Y.

INDEX.

Sussect LNpDEx.

INO isd oo kin be pW Kdac'e sd be Riss oER De cae ees 2

EER: Sa leacwin bye Kdehoudaeeseds senenrebeeeds 3

as rien seve seuie sed vann seed Wal 3

Se I Reo uve ka cin eesind o> ics Kavaten wes 5)

A. The decision of the Circuit Court of Appeals is

in substantial conflict with applicable New Jersey

NE oi ha oer a Nady td aee eked vevnone kis 5

B. The decision of the Cireuit Court of Appeals is in

substantial conflict with applicable decisions of

EE. Waban nhd ucbadcnaersvecdVanee esas? 8

C. The decision below of the Circuit Court of Appeals

for the Third Circuit is in direct conflict with ap-

plicable decisions of the Circuit Courts of Appeal

for the Second, Fourth, Fifth, Sixth, Seventh,

Kighth, Ninth and Tenth Cireuits .............. y

CN ho ne ha maee ed es hoe kn cd's oo Rein des 12

TABLE OF Cases CITED.

Brows &. Bublow, TEP WU. Be Bais noc kcc ects ccccscccsvces 9g

Brooks v. Yarborough, 37 F. (2) 527 (C. C. A. 10)...... 11

Crane-Johnson Co. v. Commissioner, 309 U.S. 692..... 3

Cieness @. ZT eateel, BOG Ti. do Bas GBT cc ccccccwcscsccecs 6

Christy v.N. Y.C.@ H.R. R.Co., 90 N. J. L. 540........ 6

Christy v. A. T. € 8S. F. Ry. Co., 233 Fed. 255 (C. C. A.

De Uehanc kinda hh ee knead Cabo shade bua eek mee se ab) 11

Clark & Wilson Lumber Co. of Del. v. McAllister, 101 F.

ee ee Aa a amd eawies «00 ekhepee 4ak« 11

Davison v. Davison, 13 N. J. Eq. 246................4.. 7

Danenhauer v. Danenhauer, 105 N. J. Eq. 449.......... 7

li INDEX

Davis v. Wakelee, 156 U. S. 680

Dodd v. Union Indemnity Co., 32 F. (2) 512 (C. C. A. 4). 10

Dred Scott v. Sandford, 60 U.S. 393, 399. ............. 10

Erie R. Co. v. Tompkins, 304 U.S. 64..........- eee eee 9

Fleisher Eng. & Const. Co. v. United States, 309 U.S.

Aas ieee kd nae eked ha as dhe be evens MRSMROEN 3

Fidelity Union Trust Co. v. Field, No. 32 October Term,

196) (001 ©. Buc... F pslvesnouas ceva ee 5

Fairmount Glass Works v. Cub Fork Coal Co., 287 U.

ahs CSS Rhee Se eo PHN eed Bald td eT E RUE ss 10

France Mfg. Co. v. Jefferson Electric Co., 106 F. (2) 605

SON MII, (ih Riv gS Seabee es 0KS OREN eK e 11

Griffin v. Whittemore, 109 N. J. Eq. 204, 205.......... 8

ee Re ey A Se reer ee 10

In re Calef’s Will, 109 N. J. Eq. 181, 199; 111 N. J. Eq.

SE a MPa bil s Ae ear aiden’ ed wie vases 5, 6

In re Allison’s Estate, 106 N. J. Eq. 55................ 6

Ill. Cent. R. Co. v. Norris, 245 Fed. 926 (C.C. A.7)...... 11

Johnson v. Hubbell, 10 N. J. Eq. 332, 335............. 6,7

Journal Plaza Holding Co. v. G. H. L. Co., Inc. 107 N. J.

RR ery Benne Mom nee etree ee 8

Johnson v. U. S. Shipping Bd. Emergency Fleet Corp.,

RG MO a ss's gp u'5a hk des sa On Snes ae BAAR 10

Kastell v. Hillman, 53 N. J. Hq. 49..........cceccceces 5

Knickerbocker Life Ins. Co. v. Pendleton, 115 U.S. 339.. 10

Laume v. Chandless, 99 N. J. Eq. 186, 187.............. 5

Lawrence v. Prosser, 88 N. J. Eg. 48..........0 0000 ees 7

Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc.,

AL SRR RR an aaah ey a ie Ne rir Res eran era 3

Marsh v. Mitchell, 26 N. J. Hq. 497... 2... ce cc cece ceeee 6

Merchants Ins. Co. v. Lilgeomont, 84 F. (2) 685 (C. C.

MPU UA cp hos 4 iA eid CA Ee RON 608 van dane 10

Messenger v. Anderson, 225 U.S. 436.............000 10

New World Life Ins. Co. v. United States, 310 U.S. 654.. 3

_—

INDEX iii

PAGE

Neuberger v. Commissioner, 310 U.S. 655. ............. 3

Beely 0. Beney, Woe UG, Bo GG. sk ves a ee cece 6

Neubeck v. Neubeck, 94 N. J. Eq. 167, 170.............. 8

Cee, SAN, Bee Os ee PE BR hires rise ve ceavease 7

Oscanyan v. Arms Co., 103 U. S. 261............... 9,11

Ohlendiek v. Schuler, 299 Fed. 182, cert. den. 266 U. S.

RR ee ee eee a. 4 shine wwe wa 11

Pflugar v. Pultz, 43 N. J. Hq. 440. ........ cee es cccees 7

Philadelphia etc. R. Co. v. Howard, 54 U.S. 307........ 8

Page v. Arkansas Nat. Gas Corp., 53 F. (2) 27 (C. C. A.

a a ir ek i eR Cie kaa Si haa 4G 6's 10

Republic Steel Corp. v. N. L. R. Bd., 310 U.S. 655...... 3

Ruhlin v. N. Y. Life Ins. Co., 304 U.S. 202, 206.......... 5

Riley v. Allen, 54 N. J. Eq. 495......... 0... ccc eeeeee 7

Ratlway Co. v. McCarthy, 96 U.S. 258.............4.. 8

Schutt v. Missionary Society, 41 N. J. Eq. 115.......... 6

Schutt v. Missionary Society, 41 N. J. Eq. 115......... 7

Shotwell v. Stickle, 83 N. J. Eq. 188, 193................ 8

Security Mut. Infe Ins. Co. v. Prewitt, 202 U.S. 246, 248. 8

Scaife v. Western N. C. Land Co., 90 Fed. 238 (C. C. A.

ee etirdinky KEG a neha gh be hi aae kn 450 dons «Hee aan’ 11

Thompson, Trustee v. Magnolia Pet. Co., 308 U.S. 630.. 3

Townsend v. Vanderwerker, 160 U. S. 171............ 9

Turner v. Kirkwood, 62 F. (2) 256 (C. C. A.10)........ 10

The Amiable Isabella, 19 U.S. 1, 50, 65................ 10

United States v. Stevens, 15 F. Supp. 139, 89 F. (2) 151,

RE EER a iy a ee 3,9

Van Duyne v. Vreeland, 12 N. J. Eq. 142.............. 7

Vreeland v. Vreeland, 53 N. J. Eq. 387................ 7

Vulcan Detining Co. v. American Can Co., 72 N. J. Eq.

(BIS SRTETE, SRR CA SURG Sey GRAD BURA PAPE SEL BOLUM SO 8

pe es os OP OE Me I cs ivi vse c ccneaccasvis 3

Winfield v. Bowen, 65 N. J. Eq. 636...............05. 7

Whitney v. Hay, 181 U. 8. 77

iv INDEX

PAGE

Young v. Young, 45 N. J. Hq. 27.2.2... 2. cece eee eeee 7

Zadig v. Actna Ins. Co., 42 F. (2) 142 (C. C. A. 2)...... 10

OrneR AuTHORITIES Crrep.

8 Hughes: Federal Practice Sec. 6302, p. 549.......... 6

ge OS a rae Pures eer ya rE er err ross 4

ee fOr TOES cee ee Ae Ot 2, 4,12

Section 240 (a) of the Judicial Code as amended by the

Act of February 13, 1925 (28 U.S. C. A. See. 347 (a)). 2

. —

Supreme Court of the United States

OCTOBER TERM, 1940

No. 499

FRANK TENNYSON NEELY,

Petitioner,

vs.

MERCHANTS TRUST COMPANY OF RED BANK,

NEW JERSEY, as Apmryistrator or THE EstaTE oF

Kua A. S. Cater, Deceasep, ann FREDERICK H.

TARR, as AncrtLary ADMINISTRATOR IN THE STATE OF

MassacHUSETTs oF THE Estate or Euiza A. S. Caer, Dr-

CEASED, AND MARY L. HODGKINS, HARRIET G.

STACY, JAMES D. STACY, FANNY K. STACY,

MARY S. STACY, ANNA S. LUFKIN, GILBERT C.

McCORMICK, HARRY McCORMICK, LOLA ROBIN-

SON, HETTIE M. MORSE, JENNIE M. SAYWARD,

CLIFFORD E. STACY, FRED C. STACY, EVERETT

STACY, WILLIAM A. HAMILTON, DORIS ALVORD,

ALBERT J. McCORMICK.

PETITION FOR REHEARING.

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

Frank Tennyson Neely, petitioner, prays that a rehear-

ing be granted of his petition for certiorari herein, which

2

was denied by this Court on November 18, 1940, wherein

he sought to review the judgment of the United States Cir-

cuit Court of Appeals for the Third Circuit entered on

June 29, 1940 (which became final upon denial of his peti-

tion for a rehearing thereof on September 11, 1940) and in

support thereof he respectfully shows:

Opinions Below.

The opinion of the District Court denying the motion to

dismiss the complaint, is reported in 16 F. Supp. 839 (R.

24-7) and its opinion dismissing the bill after trial is re-

ported in 26 F. Supp. 130 (R. 1588-93). The opinion of the

Circuit Court of Appeals denying the motion to dismiss

the appeal is reported in 110 F. (2) 525 (R. 1725), its opin-

ion affirming the District Court is reported in 113 F. (2)

953 (R. 1729-33) and its opinion denying the petition for

rehearing is unreported (R. 1737-8). The petition for

certiorari was docketed on October 10, 1940 and was denied

without opinion on November 18, 1940 (No. 499 October

Term, 1940, 311 U. S. ...). This petition is filed within

less than twenty-five days thereafter, under Rule 33.

Jurisdiction.

The jurisdiction of this Court was invoked under the

provisions of Section 240 (a) of the Judicial Code as

amended by the Act of February 13, 1925 (28 U. S. C. A.

Sec. 347 (a) ) and Rule 38 (5) (b) of the Rules of this

Court. This Rule provides:

‘*A review on writ of certiorari is not a matter of

right but of sound judicial discretion, and will be

granted only where there are special and important

reasons therefor. The following while neither con-

3

trolling nor fully measuring the court’s discretion, in-

dicate the character of reasons which will be consid-

a”

‘*(b) Where a circuit court of appeals has render-

ed a decision in conflict with the decision of another

circuit court of appeals on the same matter; or has

decided an important question of local law in a way

probably in conflict with applicable local decisions; or

has decided an important question of federal law which

has not been but should be settled by this court; or

has decided a federal question in a way probably in con-

flict with applicable decisions of this court; or has so

far departed from the accepted and usual course of

judicial proceedings or so far sanctioned such a de-

parture by a lower court, as to call for an exercise of

this court’s power of supervision’’,

It is respectfully submitted that the present case is

directly analogous to United States v. Stevens, 15 F. Supp.

139, 89 F. (2) 151, certiorari granted in 302 U. S. 666 and

decision below reversed in 302 U. S. 623, and that, as in the

Stevens case, the petition for certiorari should be granted

and the decision below reversed upon the ground that it is

in substantial conflict with applicable local decisions, as

well as in conflict with the decisions of other circuit courts

of appeal and with applicable decisions of this Court.?

Grounds of Rehearing.

1. This Court has overlooked or misapprehended the

fact that the decision below is directly in ‘‘substantial con-

flict’? with applicable New Jersey decisions, and with de-

cisions of this Court and of the Second, Fourth, Fifth,

*Cf. Thompson, Trustee v. Magnolia Pet. Co., 308 U. S. 630; White v.

Texas, 309 U. S. 631; Crane-Johnscn Co. v. Commissioner, 309 U. S. 692:

Fleisher Eng. & Const. Co. v. United States, 309 U. S. 693; New World Life

Ins. Co. v. United States, 310 U. S. 654; Republic Steel Corp. v. N. L. R. Bd.,

310 U. S. 655, Neuberger v. Commissioner, 310 U. S. 655 where petitions for

rehearing were granted at the October Term, 1939; Milk Wagon Drivers

Union v. Meadowmoor Dairies Inc., 310 U. S. 655 where a second such peti-

tion was granted.

4

Sixth, Seventh, Eighth, Ninth and Tenth Circuit Courts

of Appeal.

2. Such conflict is plainly made a ground for review on

writ of certiorari by the express provisions of Rule 38 (5)

(b) above quoted, pursuant to which the petition for certi-

orari was filed herein.

3. Such conflict has been the stated basis for granting

certiorari in virtually every opinion of this Court at the

October Term, 1940 published to date (Nos. 5, 16, 13, 50,

121, 8, 26, 15, 23, 24, 25, 27) and, in the absence of any de-

clared abrogation of Rule 38 (5) (b), no other or different

decision should follow in this cause (No. 499).

4. The printed petition for certiorari herein was duly

filed on October 19th, 1940, and respondents’ brief in op-

position was filed on November 5th. On that date the Clerk

of the Court telegraphed petitioner’s counsel, pursuant

to Rule 38 (4) (a):? ‘‘Reply brief accepted if received by

November fifteenth.’’ A reply brief accordingly was filed

on November 15th which it is assumed was the date of sub-

mission to the Court pursuant to the aforesaid Rule.

Nevertheless the decision denying the petition was an-

nounced on Monday, November 18th. Since the Court

was engaged in hearing oral arguments in five cases on the

15th, Saturday the 16th was a conference day at which

Monday’s decisions were determined upon and the 17th

was Sunday it would appear physically impossible for the

several Justices to have examined the 180 authorities cited

by the respective parties or the 478 record references con-

tained in the briefs of the 2003 page record between the

date of final submission and the date on which the decision

was formally announced.

* Rule 38 (4) (a) provides: “Timely reply briefs will be considered but dis-

tribution under this rule shall not be delayed pending the filing of such briefs.”

* Nos, 34, 35, 38, 39, 40 October Term, 1940.

5

Conflicts Involved.

A. The decision of the Circuit Court of Appeals is in

substantial conflict with applicable New Jersey deci-

sions.

1. As set forth in the petition for certiorari, the contract

to devise of which petitioner sought specific performance

was embodied in the will itself (R. 202, 1722-3) which was

drafted by the deceased promisor, duly executed by her in

the promisee’s presence, delivered to him as custodian and

thereafter retained and relied upon by him down to within

a month of her death when it disappeared. The New Jersey

rule is that this paper proved the contract, even though

(because of disappearance of the original) ineffective as a

will (Laune v. Chandless, 99 N. J. Eq. 186, 187; Kastell v.

Hillman, 53 N. J. Eq. 49). This Court has overlooked or

misapprehended the conflict created by the circuit court of

appeals in holding, contrary to this settled rule of local

law, that the contract was not thereby established (cf. Ruh-

lin v. N. Y. Life Ins. Co., 304 U. S. 202, 206. See also Fidelity

Union Trust Co. v. Field now awaiting decision, No. 32 Oc-

tober Term, 1940).

2. The certiorari petition similarly set forth a full state-

ment of the evidence (pp. 4, 8, 13) showing that the de-

ceased promisor, down to her last words, was devoted to

petitioner and completely satisfied with his performance

of the contract for nine years. The rule in these cases is

that she alone was the sole judge of the adequacy and suf-

ficiency of the consideration furnished for her promise, i. e.

the services rendered by petitioner, and that no stranger

‘Together with his own reciprocal will and his own securities (R. 580-2.

1070-2, 1504-6. Jn re Calef's Will, 109 N. J. Eq. 181, 199; 111 N. J. Eq. 355,

288 U. S. 606.)

WRAY coerce. |

ay asin?

RES

6

to the contract can be heard to dispute them (Johnson v.

Hubbell, 10 N. J. Eq. 332, 335; Schutt v. Missionary Society,

41 N. J. Eq. 115). The circuit court of appeals in purport-

ing to reexamine petitioner’s performance and in holding

that it was defective was in plain conflict with the applicable

local law. It also disregarded the trial court’s conclusive

finding (supported by substantial evidence and nowhere

challenged) that petitioner’s performance benefitted the

deceased promisor in the last year alone of her life to the

extent of $60,000 (R. 1705-6).

3. It was likewise established in a prior litigation be-

tween the same parties (In re Calef’s Will, 109 N. J. Eq.

181, 111 N. J. Eq. 355, Neely v. Stacy, 288 U. S. 606)5 that

the respondents herein by their present counsel had strenu-

ously urged to petitioner’s prejudice the very existence of

this contract now sued upon. The circuit court of appeals

in holding that respondents were not conclusively estopped

by their own prior judicial admission of the contract as an

established fact from denying its existence in this action,

created a substantial conflict with the local rule, both in

equity and in law (In re Allison’s Estate, 106 N. J. Eq. 55;

Marsh v. Mitchell, 26 N. J. Eq. 497; Cleaves v. Yeskel, 104

N. J. L. 497; Christy v. NN. Y.C. @ H. R. R. Co., 90 N. J. L.

540).

* Although certiorari was denied in that case on February 13, 1933 it was

denied unquestionably because the federal constitutional question (denial of

due process by the state court of last resort) was not raised until by motion for

reargument in the highest state court which had then (unknown to petitioner)

sent down the remittitur and consequently had lost jurisdiction to rule ad-

versely upon the federal question. (See Respondents’ brief in No. 622, Oc-

tober Term, 1932.)

*Cf. 8 Hughes: Federal Practice Sec. 6302, p. 549, quoting Mr. Justice

Van Devanter: “Whenever we find such a conflict that, without more, leads

to the granting of the petition, if the case be one in which a petition for cer-

tiorari will lie.” (Hearings before a subcommittee of the Senate Committee

on the Judiciary, 68th Cong. Ist Sess. on S. 2062 and S. 2061 Feb. 2, 1924, p.

29.)

7

4. It was likewise established that petitioner was not a

next of kin; that he gave up other business opportunities,

changed his mode of life and took up his abode with the

promisor, devoting his time exclusively to the management

of her affairs for a period of nine years which can no longer

be restored to him; that his services were unique and not of

readily ascertainable pecuniary value; that they consisted

in collecting the promisor’s assets, providing her with gifts

and loans in’order that she might continue to live in her

accustomed style and comfort, working out her debts, caring

for her and improving her property—all in reliance on the

written promise of the residuary devise made to him. In

holding that these facts, when coupled with the decedent’s

own uncontradicted admissions to nine disinterested wit-

nesses of her obligation, did not constitute a contract spe-

cifically enforceable in equity, the court of appeals acted in

substantial conflict with the applicable local decisions

(Johnson v. Hubbell, 10 N. J. Eq. 332; Van Duyne v. Vree-

land, 12 N. J. Eq. 142; Davison v. Davison, 13 N. J. Eq. 246;

Schutt v. Missionary Society, 41 N. J. Eq. 115; Pflugar v.

Pultz, 43 N. J. Eq. 440; Young v. Young, 45 N. J. Eq. 27;

Vreeland v. Vreeland, 53 N. J. Eq. 387; Riley v. Allen, 54 N.

J. Eq. 495; Winfield v. Bowen, 65 N. J. Eq. 636; Lawrence v.

Prosser, 88 N. J. Eq. 43; Danenhauer v. Danenhauer, 105

N. J. Eq. 449; Ochs v. Ochs, 122 N. J. Eq. 143).

5. Likewise there was no objection to specific enforce-

ment of the contract because it provided for the net residu-

ary estate after certain specific ascertained deductions

and the opinion of the circuit court of appeals to the con-

trary plainly conflicted with the local rule applicable (Van

Duyne v. Vreeland, 12 N. J. Eq. 142).

6. The circuit court of appeals likewise, in determining

(despite the absence of any pleading or proof of this af-

firmative defense) that petitioner should be denied relief

because he had ‘‘unclean’’ hands decided in conflict with

the applicable local rule that to establish this defense there

must be unconscionable conduct based upon actual knowl-

edge or wilful fraud (Vulcan Detining Co. v. American Can

Co., 72 N. J. Eq. 387; Shotwell v. Stickle, 83 N. J. Eq. 188,

193; Journal Plaza Holding Co. v. G. H. L. Co. Inc., 107 N.

J. Eq. 14, 18-19) or misconduct performed in the particular

matter or transaction for which relief is now sought (Neuw-

beck v. Neubeck, 94 N. J. Eq. 167, 170; Griffin v. Whitte-

more, 109 N. J. Eq. 204, 205). This court has misappre-

hended or overlooked this conflict—particularly in view of

the record which shows that the counterclaim charging peti-

tioner with misconduct was voluntarily withdrawn at the

conclusion of the entire case; the trial court ruled that the

entire record of petitioner’s relationship with the decedent

did not establish any impropriety in his handling of her af-

fairs (R. 1586) and respondents conceded that there was

no issue whatsoever in the case other than the contract—

that if the contract was established, petitioner was entitled

to a decree (R. 1153-4, 1583, 1585, ef. Security Mut. Life Ins.

Co. v. Prewitt, 202 U. S. 246, 248). Plainly the circuit court

of appeals could not of its own motion inject for the first

time on appeal an alleged issue of ‘‘clean hands”’ in the

case as a bar to the relief requested.

B. The decision of the Circuit Court of Appeals is in

substantial conflict with applicable decisions of this

Court.

1. This Court has plainly held that parties cannot blow

hot and cold in successive litigations (Philadelphia etc. R.

Co. v. Howard, 54 U. S. 307; Railway Co. v. McCarthy, 96

U.S. 258; Davis v. Wakelee, 156 U. S. 680). The denial of

certiorari is tantamount to an overruling of these decisions

, eevtcnenes R Bryne? Ore 2 RD -

egpeenecreesenmrcanrescoee IOAN FRA ALIS SS BEN EG SLBA SLB OT IES NLS AS ANA ID ROOTED eo

%

9

and a rejection of the principle, firmly imbedded in our

jurisprudence, that having once urged the contract to de-

feat petitioner in the prior probate proceeding, they can

not, when suit for its enforcement is subsequently brought

between the same parties, turn around and repudiate its

very existence as an established ‘‘important fact.’

2. This Court likewise had plainly held that the admis- :

sion of counsel is binding (Oscanyan v. Arms Co., 103 U.S. a

261). Here the contract was judicially admitted in writing i

by respondents’ present counsel in the probate proceeding :

(R. 31-6). All other issues herein excepting the contract A

were likewise flatly conceded by him on the record at the §

conclusion of the trial below (R. 1153-4, 1583, 1585). :

3. This Court has also overlooked or misapprehended :

the application of its own decisions (United States v. Stev- 2

ens, 302 U. S. 623; Brown v. Sutton, 129 U. S. 238; Town- H

send v. Vanderwerker, 160 U. 8S. 171; Whitney v. Hay, 181 &

U. S. 77) in which the relief herein requested was granted e

by this Court on facts parallel to those here. While these

decisions were rendered prior to Erie R. Co. v. Tompkins,

304 U. S. 64, which declares the local law to be applicable,

and involved the rule in Massachusetts, Wisconsin and the

District of Columbia respectively, the local law involved in

those cases was in fact identical with the New Jersey law

invoked here.

C. The decision below of the Circuit Court of Appeals

for the Third Circuit is in direct conflict with ap-

plicable decisions of the Circuit Courts of Appeal

for the Second, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth and Tenth Circuits.

1. The order of the trial court of April 6, 1936 which

struck respondents’ denial of the contract and which was

never thereafter vacated, modified or appealed settled the

—_——— BRE MER IW Ya IMRT IG ARNG IR YE SRR PESO PRN Tl ace Gg A AR i i ah

10

law of the case and framed the issues remaining to be tried

(Zadig v. Aetna Ins. Co., 42 F. (2) 142 (C. C. A. 2); Dodd

v. Union Indemnity Co., 32 F. (2) 512 (C. C. A. 4); Mer-

chants Ins. Co. v. Lilgeomont, 84 F. (2) 685, (C. C. A. 5);

Page v. Arkansas Nat. Gas Corp., 53 F. (2) 27 (C. C. A. 8);

Turner v. Kirkwood, 62 F. (2) 256 (C. C. A. 10) ). These

eases were selected from the myriad available as subse-

quent to the decision of this court in Messenger v. Ander-

son, 225 U.S. 436. While a trial court may have the power

to reverse a prior order during the pendency of the trial

before it, the power is one to be sparingly and cautiously

exercised only for good cause shown and in special cireum-

stances (id.). Here no evidence or claim was ever ad-

vanced during the trial that the judicial admission upon

which the order of April 6, 1936 was entered was inad-

vertent, that it was unauthorized or even that it was con-

trary to the fact—and the evidence subsequently received

merely tended to corroborate its correctness. Even if, as

the circuit court erroneously held, the trial judge had power

to reverse himself later, no case will be found anywhere

which justified such complete disregard of the law of the

ease rule as to permit the reframing of issues and dis-

missal of the complaint for alleged failure to prove issues

hitherto non-existent—two years after the taking of all

evidence had concluded and the case had closed.

The sanctioning of this procedure by the denial of cer-

tiorari herein obviously is such plain error and denial of

due process that the action of this Court in overlooking

or disregarding the patent injustice created thereby is

such as to be corrected upon rehearing by this Court ex

mero motu’™ even irrespective of the direct and substantial

* The Amiable Isabella, 19 U. S. 1, 50, 65; Green v. Biddle, 21 U. S. 1, 17, 18;

Dred Scott v. Sandford, 60 U. S. 393, 399; Knickerbocker Life Ins. Co. v.

Pendleton, 115 U. S. 339; Johnson v. U. S. Shipping Bd. Emergency Fleet

Corp., 279 U. S, 819; Fairmount Glass Works v. Cub Fork Coal Co,, 287 U. S.

474, 480.

RES IMDB oo ME: WPT RELI tere, Rs

b KI Be AEE DEPORT EFS ger: am Urttaeer Sis

; . x ad

11

conflict with the decisions in the other circuits above re-

ferred to.

2. The decision of the circuit court of appeals likewise

is in substantial conflict with the decisions in the sixth and

tenth cireuits in Ollendick v. Schuler, 299 Fed. 182, cert.

den. 266 U. S. 608 (C. C. A. 6) and Brooks v. Yarborough,

37 F. (2) 527 (C. C. A. 10) where relief by a decree for

specific performance and the impressment of a trust was

granted although the contract in suit was not as here (1)

admitted under the pleadings, (2) judicially admitted by

respondents and (3) established by the written contractual

language of the will itself.

3. Likewise the decision of the circuit court of appeals

is in direct conflict with the many decisions since Oscanyan

v. Arms Co., 103 U. S. 261 upholding the conclusiveness of

admissions by counsel (Scaife v. Western N. C. Land Co.,

90 Fed. 238 (C. C. A. 4); France Mfg. Co. v. Jefferson Elec-

tric Co., 106 F. (2) 605 (C. C. A. 6) ; Ill. Cent. R. Co. v. Nor-

ris, 245 Fed. 926 (C. C. A. 7); Christy v. A. T. & S. F. Ry.

Co., 233 Fed. 255 (C. C. A. 8); Clark & Wilson Lumber

Co. of Del. v. McAllister, 101 F. (2) 709 (C. C. A. 9) ). Here

this Court has again overlooked the established fact that

(1) the contract was judicially admitted in the prior pro-

bate proceeding ; (2) all else but the contract was expressly

admitted on the record below. Plainly under these cireum-

stances petitioner could not lawfully be denied a decree.®

*The Circuit Court of Appeals and the several Supreme Court services

which summarized the certiorari petition all erroneously described the suit as

seeking to enforce an alleged “oral” contract in complete disregard of the fact

that the contract was reduced to writing and that the motion to amend the

complaint to conform to such documentary proof was granted without objec-

tion (R. 465)—a patent error that may well have been overlooked in this

Court.

é

€

.

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Conclusion.

Concededly this case does not involve a public right, the

construction of a federal statute, a claim by a governmental

agency or a question of civil or religious liberty. The jur-

isdiction of this Court is nowhere defined however as limited

to these classes of cases despite such seeming self imposed

limitation. This case does involve six substantial conflicts

with applicable local decisions, three such conflicts with

applicable decisions of this Court and three such conflicts

with the applicable decisions in at least seven of the cir-

cuit courts of appeal—although one supposedly is enough

under Rule 38 (5) (b). It does involve the denial of sub-

stantial property and contractual rights to a private citizen

of the United States, whose right to redress has been de-

feated by intemperate personal attacks made upon him

by respondents, both below and in the brief filed in this

Court, for the obvious purpose of beclouding an issue that

is actually non-existent. This Court, under its plenary

powers of supervision and as the last bulwark of rights

of vested property should, it is respectfully submitted,

grant a review of this cause to the end that substantial

justice may be done and the petitioner’s vested rights under

his admitted contract may be protected. ¥

The order of November 18, 1940 denying certiorari should

be vacated, the petition for writ of certiorari to the Cireuit

Court of Appeals for the Third Circuit granted and the

entry of judgment herein by the United States District

Court for the District of New Jersey stayed until further

order of the Court.

Respectfully submitted,

Apert G. Avery,

Grorce Gorpon Barrie,

Attorneys for Petitioner,

—

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We hereby certify that this petition is presented in

good faith and not for delay.

Apert G. Avery,

Groree Gorpon Barrie,

Attorneys for Petitioner.