Appendix — Curtis v. Utah Fuel Co.
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143
Appendix
APPENDIX.
REASONS (N.) (0).
1. Under the Constitutional Amendment of 1884 Sec. 6
designed to prevent repugnancy of Rulings between Courts
of Appeals or between them and the Supreme Court, the
word ‘‘rulings’’ means expositions of the law or the legal
reason on which the Courts rested their judgments on the
questions presented. Friedman v. Maryland Casualty Co.,
71 S. W. 2d 491, 496, 228 Mo. App. 680.
(21 C. J. S. Sec. 195, at page 339.)
Ruling on Motion to Dismiss, or Nonsuit.
2. A ruling on a motion to dismiss has been held to be
the law of the case as to matters thereby adjudicated. 74
74 Potts v. Village of Haerstraw, 93 F. 2d 506; C. I. T.
Corporation v. Sanderson, 49 F. 2d 937; Weagant v.
Bowers, 49 F. 2d 934; Commercial Union of America v.
Anglo-South American Bank, 10 F. 2d 937; Piest v. Tide
Water Oil Co., 27 F. Supp. 1021; Presidio Mining Co. v.
Oberton, 261 F. 933, affirmed 270.F. 388, and certiorari
denied; Martin v. Presidio Mining Co., 41 S. Ct. 525, 256
U. S. 694, 65 L. Ed. 1175; United Drug Co. v. Cordley &
Hayes, 132 N. E. 56, 239 Mass, 334; Darling v. Abbot, 191
N. W. 20, 221 Mich. 449; Schickler v. Penrod Co., 227 N. Y.
S. 331, 222 App. Div. 627; Barber v. Rowe, 193 N. Y. S.
157, 200 App. Div. 290; Sterling Bag Co. v. City of New
York, 11 N. Y. S. 2d 297, 256 App. Div. 645; Henry v. New
York Post, 5 N. Y. S. 2d 716, 168 Misc. 247, affirmed 8 N. Y.
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S. 2d 1022, 255 App. Div. 973; Sterling Bag Co. v. City of
New York, 4 N. Y. S. 2d 521, 168 Mise. 179; Halzer v.
Deutsche Eichsbahn Gesellschaft, 28 N. Y. S. 2d 284.
A plea to the jurisdiction should not be entertained on
a particular ground after a motion to dismiss based on the
same ground has been overruled. Martin v. Chicago, ete.
Electric R. Co., 77 N. E. 86, 220 Ill. 97.
3. Rulings of Different Judges; Those of Each Judge
the ‘‘Law of the Case,”’ and is Binding Upon Every Other
Judge of the Same Court.
21 C. J. S. Section 195, at page 340, 2d Col.
Different Judges. Ordinarily becomes the law of the
case in that court; 85 (Aachen & Munich Fire Ins. Co. v.
Guaranty Trust Co. of New York, 24 F. 2d 465, reversed
on other grounds, 27 F. 2d 674 and certiorari denied. (See
49 S. Ct. 83, 278 U. S. 648, 73 L. Ed. 560; Farmers’ Loan
& Trust Co. v. Miller, 298 F. 758, reversed on other grounds
see 9 F. 2d 848) and one judge of a court should not ordi-
narily review or disturb the rulings of another judge of
the same or a coordinate court in the same case. 86
86 U.S. ex rel. Hughes v. Gault, 13 F. 2d 225; Commer-
cial Union of America v. Anglo-South American Bank, 102
2d 937; The Material Service, 11 F. Supp. 100, affirmed,
Leathen Smith-Putnam Navigation Co. v. Osby, 79 F. 2d
280, certiorari denied 56 S, Ct. 370, 296 U. S. 653, 80 L. Ed.
465; Kings County Lighting Co. v. Nixon, 268 F. 143,
affirmed Newton v. Kings County Lighting Co., 42 S. Ct.
268, 258 U. S. 180, 66 L. Ed. 550; Harris v. Chicago House
Wrecking Co., 145 N. E. 666, 314 Ill. 500, reversing 226 Ml.
App. 220; Second Nat. Bank v. Leary, 187 N. E. 611, 284
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Mass. 321; United Drug Co. v. Cordley & Hayes, 132 N. E.
56, 239 Mass. 334; Henlun Holding Corp. v. Ess Bros.
Holding Corp., 239 N. Y. S. 259, 228 App. Div. 102; Endur-
ance Holding Corporation v. Kranmer Surgical Stores, 238
N. Y. S. 377, 227 App. Div. 582; Mutual Thread Co. v.
Oriental Textiles, 176 N. Y. S. 313, 188 App. Div. 104;
Western Manufacturing & Oil Co. v. American Spirits Mfg.
Co., 1175 N. Y. S. 345, 187 App. Div. 230; Tallassee Power
Co. v. Peacock, 150 S. E. 510, 197 N. C. 735; Rhode Island
Co. v. Superior Court, 104 A. 634, 42 R. I. 5; Georgian Co.
v. Britton, 139 S. E. 217, 141 S. C. 163; 15 C. J. 961 note 36
(gz) (h), p. 963 Note 49.
4. Proper Judicial Comity would require me to follow my
colleague. American Scantic Lince, Ine. v. United States,
27 Fed. Supp. 271; Brusselback et al. v. Cago. Corp., 24 F.
Supp. 524, at page 531. The general rule is that a matter
which is decided by any District Judge within the District
should be, as a matter of comity without re-examination by
another judge, so decided. United States v. Hirschhorn
D. C., 21 F. 2d 758. See also, 21 C. J. S., Courts, Sec. 196.
5. United States v. Hirschhorn, just above.
(1) Confronted as I am by this array of judicial prece-
dents I am considerably embarrassed in arriving at a deci-
sion as to what my own course should be, especially in view
of the general rule that a matter which is decided by any
District Judge in this district should be, as a matter of
comity, without re-examination by another judge, so de-
cided, and that among the opinions presented to me is one
from this district.
6. In the absence of a ruling by an appellate court, a for-
mer ruling of a Federal District Court will thereafter be
ee ne eee RIGS TESST REEMA ABI OE BDAY. CA :
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followed by the Courts of that District. In re Markowitz,
233 F. 715. See also, Cye. Fed. Proc. Sec. 685, at page 293.
7. The general rule is that a matter which is decided by
any district judge within the district should be, as a matter
of comity, without re-examination by another Judge, so de-
cided. Cyc. of Fed. Proc. Sec. 685 (at page 293). Citing
Long v. Dick, 38 F. Supp. 214.
8. Opinions of the Circuit Court of Appeals the ‘‘Law
of the Case’’ and is Binding on the Same Court as well as
the Court Below.
Cye. of Fed. Proc. Sec. 684. Opinions of Cireuit Court
of Appeals. ;
(For further proceedings to be there taken in pursuance
of such determination. 877 U.S.C.A. 28. See p. 28a of Ap-
pendix. )
In a system of jurisprudence founded upon stare decisis
it does not lie within the domain of a court of first instance
to take it upon itself to upset a rule of long standing with-
out most pressing circumstances to demand it. MeCarty v.
Palmer, 29 F. Supp. 585. Citeuit Court of Appeals deci-
sions are therefore binding in their own circuit, on them-
selves and the district courts, in so far as they are in har-
‘mony with the decisions of the Supreme Court. E. Edel-
mann & Co. v. Triple A. Specialty Co., 88 F. 2d 852, cer-
tiorari denied 300 U. S. 680, 81 L. Ed. 884, 57 Sup. Ct.; In
re King, 46 F. 2d 112; Hartford & New York Transp. Co.
v. Rogers & Hubbard Co., 40 F. 2d 954, aff’d 47 F. 2d 189;
In re Imperial Irrigation Dist., 38 F. Supp. 770; Burris v.
American Chicle Co., 33 F. Supp. 104, modified, 120 F. 2d
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218; Bourgois, Inc. v. Willingmyer, 33 F. Supp. 863; United
States v. Rollnick, 33 F. Supp. 863; United States v. La-
Vine, 28 F. Supp. 113; United States v. Eighty Acres of
Land in Williamson County, 26 F. Supp. 315; Cookson v.
Louis Marx & Co., 23 F. Supp. 615.
A decision of a Cireuit Court of Appeals is authoritative
and binding upon a district court of the same circuit.
Elliott v. Wheelock, 34 F. 2d 213; United States v. Gold-
man, 28 F. 2d 424; Young v. John McShain, Inc., 39 F.
Supp. 521; Forstmann v. Rogers, 35 F. Supp. 916. A for-
mer decision from which the Supreme Court denied cer-
tiorari is especially binding. H. Wagner & Adler Co. v.
Mali, 74 F. 2d 666.
9. (21 C. J. S. See. 195 at page 330.)
Previous decisions in same Case as Law of the Case.
A. Definition, Nature and Distinctions.
‘“‘Law of the case’’ is the controlling legal rule of deci-
sions, as established by a previous decision, between the
same parties in the same case. It is a rule of practice, and
generally is distinguishable from res judicata and stare
decisis.
‘‘Law of the case’’ has been defined as the opinion de-
livered on a former appeal. 10
10 Hocker v. Louisville, ete. R. Co., 96 S. W. 526, 29
Ky. 1, 842; 36 C. J. p. 964 note 33. More specifically, it
means that whatever is once irrevocably established as the
controlling legal rule of decision between the same parties
in the same case continues to be the law of the case, whether
correct on general principles or not, so long as the facts on
Papeete SPREE Ls ENTS
ce ieee
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which such decision was predicated continue to be the facts
of the case before the court.’’ 11
11 Gypsum Co. v. Columbia Casualty Co., 169 So. 532,
124 Fla. 633; Hutchings v. Roquemore, 150 S. E. 571; 40
Ga. App. 566; Harris v. Chicago House Wrecking Co., 145
N. E. 666, 314 Ill. 500; reversing 226 Ill. App. 220; Ander-
son v. Dougherty, 207 S. W. 474, 182 Ky. 800; Woodward
v. Snow, 124 N. E. 35, 233 Mass. 267, 5 A.L.R. 1381; In re
Taylor Estate, 2 A. 2d 317, 110 Vt. 80.
10. NATURE: The Doctrine of the law of the case is a
rule of practice and not a principle of substantive law. 12
(12 Sands v. American Ry. Express Co., 198 N. W. 402,
159 Minn. 25; Perkins v. Vermont Hydro-Electric Corpor-
ation, 177 A. 631, 106 Vt. 367.)
It expresses the practice of the courts generally to re-
fuse to reopen what has been previously decided in the
same case. 13
13 Messinger v. Anderson, 32 S. Ct. 739, 225 U. S. 436,
56 L. Ed. 1152; Lewith v. Irving Trust Co., 67 F. 2d 855;
Page v. Arkansas Natural Gas Corporation, 53 F. 2d 27,
certiorari granted 52 S. Ct. 407, 285 U. S. 532, 76 L. Ed.
927 and affirmed 52 S. Ct. 507, 286 U. S. 269, 76 L. Ed. 1096;
Davis v. Davis, 96 F. 2d 512, 68 App. D. C. 240, certiorari
granted 58 S. Ct. 944, 304 U. S. 552, 82 L. Ed. 1523, reversed
on other grounds 59 S. Ct. 3, 305 U. S. 32, 85 L. Ed. 27,
118 A.R.R. 1518, motion denied 59 S. Ct. 773; Fleming v.
Campbell, 88 P. 2d 708; 148 Kan. 516; State v. Randazzo,
300 8S. W. 755, 318 Mo. 761; Trustees of Cincinnati Southern
Ry. Co. v. McWilliams, 18 Ohio App. 225; Russell v. Fourth
Nat. Bank, 31 Ohio C. A. 193.
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And is binding on every tribunal dealing with the case
except one clothed with power to overrule and finally de-
clare the law to be otherwise. 14
14 Lunn & Sweet Co. v. Wolfman, 167 N. E. 641, 268
Mass. 345; in re Wecker’s Estate, 243 N. W. 642, 123 Neb.
504. :
It is founded on public policy, in the interest of orderly
judicial procedure. 15
15 Turner v. Kirkwood, 62 F, 2d 256, certiorari denied
53 S. Ct. 522, 289 U. S. 724, 77 L. Ed. 1474; Toy Nat. Bank
of Sioux City Iowa v. Smith, 8 F. Supp. 638, reversed on
other grounds; Hammerstron v. Toy Nat. Bank, 81 F. 2d
628, certiorari denied Toy Nat. Bank v. Mammerstrom, 57
S. Ct. 9, 299 U. S. 546, 81 L. Ed. 402 and Iowa Joint Stock
Land Bank v. Hammerstrom, 57 S. Ct. 9, 299 U. S. 546, 81
L. Ed. 402, and Live Stock Nat. Bank v. Hammerstrom, 57
S. Ct. 9, 299 U. S. 546, 81 L. Ed. 402; In re Reamers Estate,
200 A. 35, 331 Pa. 117, 113 A.L.R. 589.
And is of special significance as applied to questions of
law as distinguished from decisions on questions of fact.
Gypsum Co. v. Columbia Casualty Co., 199 So. 532, 535,
124 Fla. 633. Distinguished from res judicata, and Stare
Decisis.
11. The law of the case, res judicata, and stare decisis
belong to the same family in that they have in view the
termination of controverted questions of fact and law. 17
17 Gypsum Co. v. Columbia Casualty Co., 169 So. 522,
535m k24 Fla. 633; Scott. v. Scotts Bluff County, 183 N. W.
573, 106 Neb. 355; Perkins v. Vermont Hydro-Electric
Corp., 177 A. 631, 106 Vt. 367.
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The law of the case, however, is distinct from res judi-
cata. 18
18 Southern R. Co. v. Clift, 43 S. Ct. 126, 260 U. S. 318,
67 L. Ed. 283, (note 18 34 C. J. p. 747 note 92 (a).) in that
the law of the case does not have the finality of the doctrine
of res judicata, 19 (19 Walker v. Gerli, 12 N. Y. S. 2d 942,
257 App. Div. 249, vacated, 14 N. Y. S. 2d. 278, and re
Reamer’s Estate, Supra) and applies only to the one case
whereas res judicata forecloses parties or privies in one
case by what has been done in another ease. 20
20 Although in its essence it is nothing more than a
special and limited application of the doctrine of res judi-
cata or former adjudication. 21
21 Gypsum Co. v. Columbia Casualty Co., 169 So. 532,
124 Fla. 633.) and what is known as the ‘‘law of the case,”
that is, the effect and conclusiveness of a former decision in
the subsequent proceedings in the same case, has been
generally put upon the ground of res judicata. 22
22 Petition v. Reader, App., 89 P. 2d 654; Williams
Realty & Loan Co. v. Simmons, 3 S. E. 2d 580, 188 Ga. 184;
Simmon v. Williams Realty & Loan Co., 194 S. E. 356, 185
Ga. 154; Dixon v. Reddle, 38 S. W. 2d 715, 238 Ky. 722;
Darling v. Abbott, 191 N. W. 20, 221 Nich. 449; State v.
Randazzo, 300 S. W. 755; 318 Mo. 761; In re Wecker’s Es-
tate, 243 N. W. 642, 644, 123 Neb. 504; Venus Shoe Corp. v.
Hanover Shoe Store, 189 A. 352, 88 N. H. 478; In re Gould’s
Kstate, 113 A. 552, 270 Pa. 535, 34 C. J. p. 748 note 97.
Such a decision, as the law of the case, is binding on the
courts. 27
15)
Appendix
27 U.S. for use and benefit of John v. Morley Const.
Co., 17 F. Supp. 378, modified on other grounds U. S. ex rel
Johnson v. Morley Const. Co., 98 F. 2d 781, certiorari denied
Maryland Casualty Co. v. U. S. for use and benefit of Har-
rington, 59 S. Ct. 244; Hamrick v. Stewart, 114 S. E. 723,
29 Ga. App. 220; Levine v. Levine, 252 P. 972, 121 Or. 44;
Chase Nat. Bank of City of New York v. Carver, 2 N. Y. S.
2d 329, 166 Mise. 708; Grogan-Cocran Lumber Co. v. Me-
Whorter, Civ. App. 15 S. W. 2d 126, error refused; Me-
Henry v. Banker’s Trust Co., Civ. App., 206 S. W. 560,
error dismissed 41 Sup. Ct. 321, 255 U. S. 559, 65 L. Ed.
785; Moore v. Sacajawea Lumber & Shingle Co., 256 P.
331, 144 Wash. 38.) as well as on the parties. 28
28 Union Electric Light & Power Co. v. Snyder Estate
Co., 15 F. Supp. 379; Roles v. Edwards, 176 S. E. 106, 49 Ga.
App. 527; Hamrick v. Stewart, 114 8, E. 722, 29 Ga. App.
220; In re Wecke Estate, 243 N. W. 642, 645, 122 Neb.
Levine v. Levine, 252 P. 972, 121 Or. 44; 15 C. J. p. 962
note 37 (a) and even though the decision was erroneous
it cannot be availed of by the litigant prejudicially affected
in a subsequent trial of the same cause, 29 (29 O’Neil
Engineering Co. v. City of Lehigh, 182 P. 659, 75 Okl. 227).
District Court must follow law of its Circuit.
Bausch & Lomb Optical Co. v. Wahlgrenn, 1 F. Supp.
799, affirmed, C.C.A. Wahlgren v. Bausch & Lomb Optical
Co., 68 F. 2d 660, certiorari denied 54 S. Ct. 774, 292 U. S.
639, 78 L. Ed. 1491, rehearing denied 54 S. Ct. 862, 292
U. S. 615, 78 L. Ed. 1491; Mobley v. J. A. Fischer Co., 49
F. 2d 920.
12. 21 C. J. S., Section 198, at page 348. Note 20.
rege ‘i
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In the federal courts a decision of the circuit court of
appeals is binding on the district courts in its circuit for
the propositions which it decided. 20
20 Edelmann & Co. v. Triple A. Specialty Co., 88 F. 2d
852, certiorari denied 57 S. Ct. 673, 300 U. S. 680, 81 L. Ed.
884; The M. M. O’Brien, 60 F. 2d 976; The Philip J. Kenny,
D.C.N.J. 57 F. 2d 335; Cleaves v. Peterboro Basket Co.,
04 F. 2d 101; First Trust Co. of Omaha v. Allen, 51 F.
2d 1069; affirmed 60 F. 2d 812, certiorari denied Doolittle
v. Allen, 53 S, Ct. 315, 287 U. S. 671, 77 L. Ed. 578; Mobley
v. J. A. Fischer Co., 49 F. 2d 920; Palmer v. Bender, 49
F. 2d 316; affirmed 57 F. 2d 32 certiorari granted 53 S. Ct.
79, 287 U. S. 586, 77 L. Ed. 512, affirmed 53 S. Ct. 225, 287
U. 8. 551, 77 L. Ed. 489; Western Electric Co. v. Waller-
stein, 48 F. 2d 268; D. L. Flack & Son v. West Virginia Coal
Co., 46 F. 2d 177, affirmed 50 F. 2d 1075; In re King, 46
F, 2d 112; Hartford & New York Transp. Co. v. Rogers &
Hubbard Co., 40 F. 2d 957, affirmed 47 F. 2d 189, certiorari
denied Rogers & Hubbard v. Hartford & New York Transp.
Co., 51 S. Ct. 483, 283 U. S. 835, 75 L. Ed. 1446; Lektophone
Corp. v. Miller Bros. Co., 37 F. 2d 580, reversed on other
grounds 51 S. Ct. 93, 282 U. S. 168, 75 L. Ed. 274 amended
51 S. Ct. 178; Sugarland Industries v. Bass, 36 F. 2d 375,
reversed on other grounds Bass v. Sugarland Industries,
50 F. 2d 424; In re United Realty & Homebuilders’ Corp.,
27 F. 2d 138; U. S. ex rel. Hughes v. Gault, 13 F. 2d 225;
In re Grossberg, 11 F'. 2d 329; McNeely v. Town of Vidalia,
6 F. 2d 21, modifying and making injunction permanent,
6 F. 2d 19, and affirmed Town of Vidalia v. McNelly, 47
S. Ct. 758, 274 U. S. 676, 71 L. Ed. 1292; Morgan v, Ten-
nessee Valley Authority, 28 F. Supp. 732; U. S. v. La Vine,
28 F. Supp. 113; U. S. v. Aluminum Co. of America, 26
F. Supp. 315; Sheldon v. Metro-Goldwyn Pictures Corp.,
* 153
Appendix
26 F. Supp. 134; Bank of New York & Trust Co. v. U. S.,
25 F. Supp. 314; Cookson v. Louis Marx & Co., 25 F. Supp.
615; In re James Butler Grocery Co., 22 F. Supp. 995;
0. D. Jennings & Co, v. Maestri, 22 F. Supp. 980, affirmed
97 F. 2d 679; Diatel v. Gleason, 22 F. Supp. 355; In re
Davis, 22 F. Supp. 2; English v. Bitgood, 21 F. Supp. 641;
Baker v. U. 8., 21 F. Supp. 577; Forrest v. Southern Ry.
Co., 20 F. Supp. 851; Helmbright v. John A. Gebelein, Inc.,
19 F. Supp. 621; Koppers Connecticut Coke Co. v. James
McWilliams Blue Line, 18 F. 2d 865; certiorari denied
James MeWilliams Blue Line v. Koppers Coke Co., 58 S.
Ct. 25, 302 U. S. 706, 82 L. Ed. 545; U. S. Ex rel Amato
v. Commissioner of Immigration Ellis Island New York
Harbor, 18 F. Supp. 480; Murphy v. Dunklin County, 17
F. Supp. 128; Campbell v. Lago Petroleum Corp., 16 F.
Supp. 980; Remington Rand v. Lind, 16 F. Supp. 666; U. S.
v. Hartford Accident & Indemnity Co., 15 F. Supp. 791;
In re Lehrenkraus, 14 F, Supp. 682; In re Ruckman, 13
F, Supp. 992; In re Cheney Bros., 2 F. Supp. 605; G. B. R.
Millin Co. v. Thomas, 11 F. Supp. 833, Neild Mfg. Corp.
v. Hassett, 11 F. Supp. 642; In re Consolidation Coal Co.,
11 F. Supp. 594, appeai dismissed, Daersam v. Consolida-
tion Coal Co., 79 F. 2d 989; MeNary v. Guaranty Trust
Co. of New York, 6 F. Supp. 616; Lawrence v. Travelers
Ins. Co., 6 F. Supp. 628; Irving Trust Co. v. Manufacturers
Trust Co., 6 F. Supp. 185; Motor Improvements v. A. C.
Spark Plug Co., 5 F. Supp. 712, reversed on other grounds,
80 F. 2d 385 certiorari denied A. C. Spark Plug Co. v.
Motor Improvements, 56 S. Ct. 939, 298 U. S. 671, 80 L. Ed.
1194; In re Sollars, 5 F. Supp. 483; Mills Novelty Co. v.
Bolan, 3 F. Supp. 968; affirmed Mills Novelty Co. v. O’Ryan,
68 F. 2d 1009, certiorari granted O’Ryan v. Mills Novelty
Co., 54 S. Ct. 692, 292 U. S. 615, 78 L. Ed. 1474, reversed
on other grounds 54 S. Ct. 779, 292 U. S. 609, 78 L. Ed.
EEO PLO NLM MO A tT
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s
RT HN RS OPER ee CRE ety oS UC SST ae Ol od Ly CA hte SGI A Mae SBS ae ee
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1469, Bausch & Lomb Optical Co. v. Wahlegren, 1 F. Supp.
799, affirmed Wahlegren v. Bausch & Lomb Optical Co.,
68 F. 2d 660, certiorari denied 54 S. Ct. 774, 292 U. S. 639,
78 L. Ed. 1491, rehearing denied 54 S. Ct. 862, 292 U. S.
615, 78 L. Ed. 1491; U. S. v. MeGovern, 1 F. Supp. 568,
affirmed 60 F. 2d 880, certiorari denied McGovern v. U. S.
53 S. Ct. 96, 287 U. S. 650, 77 L. Ed. 561; Radio Corpora-
tion of America v. Radio Engineering Laboratories, 1 F.
Supp. 65, reversed on other grounds 66 F. 2d 768, certiorari
granted 54 S. Ct. 373, 290 U. S. 624, 78 L. Ed. 544; Pru-
dential Ins. Co. of America v. Herold, D. C. N. J. 247 F.
681; Jellison v. Krell Piano Co., 246 F. 509; U.S. v. River
Spinning Co., 243 F. 759, affirmed 250 F. 586; Mark Seong
v. U. S., 242 F. 496, 155 C.C.A. 272, Motifvying Ex parte
Chin Him, 227 F. 131.
13. The adjudication on the 2d Appeal No. 8027, C.C.A.
3d C. is the ‘‘Law of the Case’’ the propositions decided
and the Evidence presented are substantially the very same.
5 Corpus Juris Secundum. APPHAL AND ERROR, p.
1267, See. 1821.
Former Decisions as the Law of the Case in General.
-(Head Note.)
a. Statement of Rule.
As a general rule, an adjudication on the first appeal is
the law of the case on all subsequent appeals in which the
facts are substantially the same.
It may be stated as a rule of general application that,
where the evidence on a second or succeeding appeal is
substantially the same as that on the first or preceding
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appeal, all matters, questions, points, or issues adjudicated
on the prior appeal are the laws of the case on all subse-
quent appeals and will not be reconsidered or readjudicated
therein. 51
51 Messenger v. Anderson, 32 S. Ct. 739, 225 U. S. 436,
56 L. Ed. 1152; Claiborne-Reno Co. v. E. S. DuPont de
Nemours & Co., 77 F. 2d 565; General Motors Acceptance
Corp. v. Mid-West Chevrolet Co., 74 F. Ed. 386; Chesa-
peake & O. Ry. Co. v. Mears, 70 F. 2d 490, certiorari denied
55 8S. Ct. 69; Jones v. Box Elder County, Utah, 67 F. 2d
900; Keeler v. Fred T. Ley, 7 Co., 65 F. 2d 499; Surick
General Accident & Liability Ins. Co. v. O’Keefe, 64 F. 2d
768, certiorari denied 54 S. Ct. 49, 290 U. S. 630, 78 L. Ed.
548, Armour Fertilizer Works v. Sanders, 63 F. 2d 902, cer-
tiorari denied Sanders v. Fertilizer Works, 54 S. Ct. 345,
290 U.S. 623, 78 L. Ed. 543, affirmed 54 S. Ct. 677, 292 U.S.
190, 70 L. Ed. 1206, 91 A.L.R. 950, rehearing denied 54 S.
Ct. 855, 292 U. S. 612, 78 L. Ed. 1472; Aetna Life Ins. Co.
v. Wharton, 63 F. 2d 378, certiorari denied 53 S. Ct. 786,
289 U.S. 755, 77 L. Ed. 1500; Utah Power & Light Co. v.
Woody, 62 F. 2d 613; Freeman v. Smith, 62 F. 2d 291;
Northern Pac. Ry. Co. v. Van Dusen Harrington Co., 60 F.
2d 394; International Brotherhood of Electrical Workers
Local No. 134 v. Western Union Telegraph Co., 46 F. 2d
736, certiorari denied 52 S. Ct. 13, 284 U. S. 630, 76 L. Ed.
536; National Brake & Electric Co. v. Christensen, 38 F. 2d
721, certiorari denied 51 S. Ct. 36, 282 U. S. 86, 75 L. Ed.
764; Minneapolis Steel & Machinery Co. v. Federal Surety
Co., 34 F. 2d 270, affirmed, 22 F. 2d 712; Dodd v. Union
Indemnity Co., 32 F. 2d 512, certiorari denied 50 S. Ct.
33, 74 L. Ed. 631; Illinois Cent. Ry. Co. v. Crail, 31 F.
2d 111; affirmed Crail v. Illinois Cent. R. Co., 21°Fed. 836,
certiorari granted Illinois Cent. R. Co. v. Crail, 49 S. Ct.
i
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483, 279 U. S. 833, 73 L. Ed. 982, reversed on other grounds,
50 S. Ct. 180, 281 U. S. 57, 74 L. Ed. 699, 67 A.L.R. 1423;
Pennsylvania Mining Co. v. United Mine Workers of
America, 28 F. 2d 851, certiorari denied 49 S. Ct. 263, 279
U. S. 841, 73 L. Ed. 987; City and County of Denver v.
Denver Tramway Corp., 23 F. 2d 287, certiorari denied,
49 S. Ct. 20, 278 U. S. 616; 73 L. Ed. 539; L. P. Larson, Jr.,
Co. v. William Wrigley, Jr., Co., 20 F. 2d 830, modifying
William Wrigley, Jr., Co. v. L. P. Larson, Jr., Co., 5 F. 2d
731, and certiorari denied 48 S. Ct. 207, 276 U. S. 616;
72 L. Ed. 733, certiorari granted L. P. Larson, Jr., Co. v.
William Wrigley, Jr., Co., 48 S. Ct. 157, 275 U.S. 521, 72
L. Ed. 404, motion denied 48 S. Ct. 435, 73 L. Ed. 1018, and
reversed in part on other grounds 48 S. Ct. 449, 277 U.S.
97, 72 L. Ed. 800; City of Seattle v. Puget Sound Power
& Light Co., 15 F. 2d 794, certiorari denied 47 S. Ct. 456,
273 U. S. 752, 71 L. Ed. 874, and Puget Sound Power &
Light Co. v. City of Seattle, 47 S. Ct. 458, 273 U. S. 753,
71 L. Ed. 874; Couteau Trust Co. v. Massachusetts Bonding
& Insurance Co., 12 F. 2d 136; Dickinson v. O. & W. Thum
Co., 8 F. 570; In re Paramount Publix Corp., 10 F. Supp.
504; Meyer & Chapman State Bank v. First Nat. Bank,
291 F. 42; First Nat. Bank v. Old Dominion Trust Co.,
284 F. 128; Canal-Commercial Trust & Savings Bank v.
Bank of Plant City, 278 F. 178; Philadelphia Rubber Works
Co. v. U. S. Rubber Reclaiming Works, 277 F. 171, affirming
276 F. 600, 613, and certiorari denied U. S. Rubber Re-
claiming Works v. Philadelphia Rubber Works Co., 42 S.
Ct. 187, 257 U. S. 660, 66 L. Ed. 422; Browne v. Thorn,
272 F. 950, certiorari granted 41 S. Ct. 625, 256 U. S. 689,
65 L. Ed. 1172, and affirmed 43 S. Ct. 36, 260 U. S. 137,
67 L. Ed. 171; Keith v. Kilmer, 272 F. 643, certiorari denied
Kilmer v. Keith, 42 S. Ct. 51, 257 U. S. 639, 66 L. Ed. 410;
Cogswell v. Drennen, 172 F. 289, Petition DISMISSED
157
Appendix
Tilton v. Drennen, 42 S. Ct. 53, 257 U. S. 651, 66 L. Ed.
417, rehearing granted 42 S. Ct. 168, 257 U. S. 631, 66 L. Ed.
406, certiorari denied 42 S. Ct. 169, 259 U. S. 657, 66 L. Ed.
428, and appeal dismissed 48 S. Ct. 358, 261 U. S. 424, 67
L. Ed. 823, and reversed on other grounds, 43 S. Ct. 704,
962 U. S. 735, 67 L. Ed. 1206; Rainier Brewing Co. v. Great
Northern Pac. S. S. Co., 270 F. 94, affirmed 42 S. Ct. 436,
959 U. S. 150, 66 L. Ed. 868; Chapin-Sacks Mfg. Co. v.
Hendler Creamery Co., 267 F. 180, Certiorari denied 41 S.
Ct. 62, 254 U. S. 648, 65 L. Ed. 451; Bodkin v. Edwards,
265 F. 621, affirming Edwards v. Bodkin, 267, F. 1004, and
affirmed 41 S. Ct. 268, 255 U. S. 221, 65 L. Ed. 595; F. H.
Oreutt & Son Co. v. National Trust & Credit Co., 265 F.
267, certiorari denied 40 S. Ct. 584, 253 U. S. 491, 64 L. Ed.
1028: (There are 18 columns of cases cited hereunder.
T consider the above cases sufficient in law and therefore
I proceed no further with the copying and entering of the
remaining cases so cited by the authority. Please see them
there under the note cited above. N. J. Curtis, plaintiff-
appellant.)
14.5 C. J. S. p. 1499, Sec. 1964. (Head Note.)
a. In General. The decision of a reviewing court becomes
the law of the case as to all matters properly within the
scope thereof and controls in all subsequent trials or pro-
ceedings.
It is a general rule that the decision of an appellate court
is the law of the case in further proceedings in the cause
in the trial court. 61
61 City of New York Ins. Co. v. American Co. of Arkan-
sas, 42 S. W. 2d 757, 184 Ark. 426; American Co. of Arkan-
sas v. Wheeler, 36 S. W. 2d 965, 185 Ark. 550; Arkansas
PPP ISLE TEMS PELE ARE ITE AMBIT EL SE
158
Appendix
Fuel Oil Co. v. State, 22 S. W. 2d 556, 180 Ark. 765, (several
other cases follow here) ; Shields v. Rancho Buena Ventura,
203 P. 577, 187 Cal. 144; .. .; Greely Loveland Irr. Co. v.
Handy Ditch Co., 240 P. 270, 77 Colo. 487; Gray v. Moss-
man, 99 A. 1062, 91 Conn. 430; Firemen’s Ins. Co. v. Oliver,
167 S. E. 99, 176 Ga. 80, reversing 162 S. E. 636; .. .; Vin-
yard v. North Side Canal Co., 274 P. 109, 47 Idaho 272, ap-
peal dismissed and certiorari denied 50 S. Ct. 67, 280 U. 8S.
520, 74 L. Ed. 589, . . .; Numerous other cases follow here
too many to copy and enter them. See them under note
61.)
And in all subsequent stages of the action or proceeding,
62
62 Morris & Co. v. Alexander & Co., 22S. W. 2d 552, 180
Ark. 725; Deacon v. Bryans, 298 P. 30, 212 Cal. 87; Ogle-
thorpe University v. City of Atlantic, 178 S. E. 156, appeal
dismissed 55 S. Ct. 642; Trenton v. Johnson, 240 P. 859, 41
Idaho 588; Palazzolo v. Sackelt, 236 N. W. 786, 254 Mich.
287; Denny v. Guyton, 57 S. W. 2d 415, 321 Mo. 1115, cer-
tiorari denied Guyton v. Denny, 53 S. Ct. 657, 289 U. S.
738 ; certiorari denied Guyton v. Denny, 53 S. Ct. 657, 289
U. S. 738, 77 L. Ed. 1486; McGraw v. Southern Ry. Co.,
184 S. E. 31, 209 N. C. 432; Amerada Petroleum Corp. v.
Elliff, 41 P. 2d 85; Rugenstein v. Ottenheemer, 152 P. 215,
78 Or. 371, Ann Case 1917 E953; Public Theatres Corp. v.
Carpenter, 56 S. W. 2d 248; Perkins v. Vermont Hydro
Electric Corp., 177 A. 631; Kaufman v. Catzen, 130 S. E.
292, 100 W. Va. 79; 4 C. J. p. 1214 note 84).
As in a subsequent suit for the same cause of action, 63.
63 Tally v. Ganahl, 90 P. 1049, 151 Cal. 418) Or on a
subsequent appeal in accordance with the rule laid down
supra in sections 1821-1834.
~~ CR TES = es od : PD PRL ETE RS OF PRL, PRI NLP a GL DP LE FOL LS LILES BCG AR CALE! 03 TH PE
159
Appendix
24 C0. J. S. p. 690, Section 1840.
FORMER DECISION AS LAW OF CASE. (Head Note.)
15. Generally the determination of the appellate court as
to all questions within the record which are or might have
been raised and decided will be the law of that case in sub-
sequent proceedings in the same case.
It is a general rule that the determination of an appellate
court as to all questions within the record which are or
might have been raised and decided will be the law of that
case in subsequent proceedings in the case, 22.
22 Marron v. U.S., 182 F. 2d 218, certiorari granted 47
S. Ct. 574, 274 U. S. 727, 71 L. Ed. 1313, affirmed 48 S. Ct.
74, 275 U. S. 192, 72 L. Ed. 231 motion denied 48 S. Ct. 206,
72 L. Ed. 1016 (Numerous other cases cited hereunder.
See them there under note 22.) Marron v. U. S., supra:
Head Note 1. Criminal Law key 1180, 1193.—Decision by
appellate court becomes Law of Case on second trial and
appeal.
Where the evidence is the same and the charge identical,
a final decision by an appellate court establishes the law
of the case, which governs on a second trial and on a second
appeal.
(1) (at page 219 1st col.) Where the evidence is the same,
and the charge identical, a final decision on appeal estab-
lishes the rule, or law o: the case, which will govern the
second trial and the former decision made by this court
will be binding no, ... We conclude at once that the former
decision on the same point, made under the same charge on
the same evidence forecloses argument.
16. CRIMINAL LAW. 2 C.J. S. p. 690, Sec. 1840.
160
Appendix
FORMER DECISION AS LAW OF CASE.
Williams v. State, supra Bricken, Presiding Judge.
This is a companion case to that of Son, alias Spider,
Williams Same Appellant v. State (1 Div. 194) 171 So.
386, appeal from Mobile cireuit court.
We are informed by counsel in briefs, that the prosecu-
tion grew out of the same transaction, and while the of-
fenses charged are different the point of decision and re-
spective insistences of parties are in every respect identi-
cal; hence a decision in one case would of necessity be con-
trolling in the other.
This court has considered and determined the companion
case, wherein appellant appealed from a judgment of con-
viction for the offense of murder in the second degree (1
Div. 194), supra.
It appears that every point of decision here presented
and insisted upon by counsel for appellant has been passed
upon and decided in said companion case, hence, there is no
necessity for repetition in the instant case.
In concluding the opinion aforesaid this court stated:
‘*We have carefully considered this record and every ques-
tion raised and presented... .”’
17. American Equitable Assur. Co. v. Baily, supra.
Court of Appeals of Alabama. Samford, Judge.
This is a companion case to that of American Equitable
Assurance Company reported in 221 Ala. 28, 128 So. 225,...
By that decision we are bound and we do not go into a
consideration of those questions.
18. Sheffield v. Tab et al. Supreme Court of Georgia.
eS
161
Appendiz
PER CURIAM.
This is a companion case of Sheffield v. Sheffield, 173 S.
E. 125, this day decided. The two cases involve the same
question and were tried together, but separate and identical
verdicts were rendered, and the grounds of the motion for
new trial are identical. This case is therefore controlled
by the rulings made in the case of Sheffield v. Sheffield.
19. 2R. C. L. p. 223. APPEAL AND ERROR.
SUCCESSIVE APPEALS.—‘LAW OF THE CASE”’.
See. 187. In General.
It may be stated generally that a court of review is pre-
cluded from agitating questions which were propounded,
considered, and decided on a previous review; the decisions
agree that, as a general rule, when an appellate court passes
upon a question and remands the cause for further pro-
ceedings, the question (s) there settled become the ‘‘law
of the case’’ upon a subsequent appeal, 10.
10 Mutual Reserve Fund Life Assoc. v. Ferrenbach, 144
Fed. 342, 75 C.C.A. 304, 7 L.R.A. (N. S.) 1163; Goodman
v. Walker, 30 Ala. 482, 68 Am. Dec. 134; Montgovery v.
Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Fortenberry v. Frazer,
5 Ark. 200, 39 Am. Dec. 373; Johnson v. San Francisco Sav.
Union, 75 Cal. 134, 16 Pac. 753, numerous other cases are
cited thereunder. See them there under note 10. The fore-
going authority proceeds further than this. See it there as
reported.
20. C. J. S. p. 1275, Sec. 1823. WHERE CASE IS RE-
MANDED. (Head Note.)
After the case is remanded, the court on a second appeal
OL ONE ser A = SP NO Ft AGERE 9 Oe
162
Appendix
will consider only those questions arising subsequently to
the remand or which were not adjudicated in the former
determination.
In accordance with the general rule stated in Sec. 1821
where, after a definite determination the court has re-
manded the cause for further action below, it will refuse to
examine questions other than those arising subsequently to
such determination and remand, or other than the propriety
of the compliance with its mandate, 76.
76 Steinfeld v. Zeckendorf, 36 S. Ct. 14, 239 U. S. 26,
60 L. Ed. 125, affirming Zeckendorf v. Steinfeld, 138 P.
1044, 15 Ariz. 335; Jones v. Box Elder County, Utah, 67
F. 2d 900; American Surety Co. of New York v. Greek
Catholic Union, 51 F. 2d 1050, certiorari granted 52 S. Ct.
41, 284 U. S. 608, 76 L. Ed. 520, and reversed on other
grounds 52 S. Ct. 235, 284 U. S. 563, 76 L. Ed. 490, amended
52 S. Ct. 392, 285 U. S. 526, 76 L. Ed. 923; Lederer v. Real
Estate Title Ins. & Trust Co. of Philadelphia, 273 F. 933
(numerous other cases from State Courts follow here, too
many to copy them and enter them here. See them in the
C. J. S. on p. 1276).
And if the court below has proceeded in substantial con-
formity to the directions of the appellate court, its action
will not be questioned on a second appeal (citations). How-
ever, . . . if the lower court misconstrues the degree of
the appellate court and does not give full effect to its
mandate, 79 (79 Continental Commercial Trust Savings
Bank v. North Platte Valley Ser. Co., 237 F. 188, 150 C. C.
A. 334; 4 C. J. p. 1099 note 4) a new appeal is an appropri-
ate remedy.
COMMERCIAL UNION OF AMERICA, INC. v. ANGLO-
SOUTH AMERICAN BANK, LTD., C.C.A. 2d. 1925,
10 F. 2d. 937.
_ -ageuaereaens eeemeneneens -
163
Appendix
1. Courts Key 99 (2)—Order of judge denying motion to
dismiss complaint became the law of the case and should be
so treated by any other judges sitting in same case in that
court.
Where District Judge denied motion to dismiss complaint,
his decision was the law of the case as established in Dis-
trict Court, and should have been so treated by any other
judge sitting in same case in that court; hence later order
of different judge dismissing complaint was improper.
2. Courts Key 481—Judges of co-ordinate jurisdiction,
sitting in same court and case, should not overrule decisions
of each other.
Judges of co-ordinate jurisdiction, sitting in the same
~ court and in the same case, should not overrule the decisions
of each other.
In Error to the District Court of the United States for the
- Southern District of New York.
Action by the Commercial Union of America, Inc., against
the Anglo-South American Bank, Limited. Judgment deny-
ing application to amend cemplaint, and granting motion
to dismiss complaint, and plaintiff brings error. Reversed,
with directions. . ..
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
ROGERS, Circuit Judge. The plaintiff is a corporation
organized and existing under the laws of the State of New
York. The defendant was and is a corporation organized
and existing under the laws of the United Kingdom of Great
Britain. It is a foreign bank transacting business within
the State of New York under a license from the state super-
intendent of banks.
The action was brought to recover damages in the sum of
$21,042.97, with interest and costs, for the alleged breach by
164 ‘
Appendix
defendant of a contract expressed in a commercial credit
issued by the defendant on October 22, 1920, for the sum of
$44,800. ...
It appears that, prior to the order dismissing the com-
plaint on the ground of its insufficiency, which order, as
stated, was made on November 24, 1924, a similar motion to
dismiss for like reason had been made before Judge Mack,
sitting in the District Court, and he denied the motion by an
order made on February 14, 1922. It was thereby decided
that the complaint was sufficient ; the motion to dismiss being
equivalent to a demurrer.
The first order is in the record, which the attorneys on
both sides stipulate is a true transcript of the record in the
action; and the facts are fully recited in the agreed ‘‘state-
ment’’ prepared in accordance with Rule 26 of the District
Court Rules. The situation presented, therefore, is this:
That after one judge sitting in the case had decided the com-
plaint to be sufficient, another judge sitting in the same
court decided it was insufficient and dismissed it.
We are not aware that it has ever before happened that in
the Southern District of New York, or in any district within
this circuit, one judge has in effect undertaken to set aside
or ignore an order made by another judge of co-ordinate
jurisdiction in the same suit. It is contended by the plain-
tiff that the order first made, sustaining the sufficiency of
the complaint, rendered the question res judicata as between
the parties, and was the law of the case, binding upon the
other judges of the court.
In Roberts & Co. v. Buckley, 145 N. Y. 215, 229, 39 N. E.
966, 970, Judge O’Brien, writing for the New York Court
of Appeals, said:
‘‘But it is said that this court in the Second division took
a different view of the effect of the inventory in deciding
the former appeal, and that we are bound by that decision.
165
Appendix
If the facts then and now are identical, it is our duty to
follow the former decision, even though convinced, if the
case was res nova, that our brethren of the Second division
took an erroneous view of the law. It is necessary to ad-
here to this principle if there is ever to be an end to litiga-
tion. It is important, of course, that private controversies
should be determined in the court of last resort according to
law and justice; but the infirmities of human judgment are
such that different tribunals will not always take the same
view of the question. When, however, the question has been
once decided in this court, or in the Second division, with
co-ordinate powers, the same parties, in the same case, upon
the same facts, cannot be permitted to reopen the discussion
without great detriment to the public interest and destroying
that respect for the decisions of courts which it is important
should it be maintained. (Cluff v. Day, 141 N. Y. 580 (36 N.
E. 182) ; Mygatt v. Coe, 142 N. Y. (36 N. E. 870) ; Moore v.
Simmons, 133 N. Y. 695 (31 N. KE. 518).”
And in Matter of Laudy, 161 N. Y. 429, 434, 435, 55 N. E.
914, 915, Judge Vann, writing for the same court, said:
‘‘The principle established in all jurisdictions is that so
long as the facts remain the same, the rule of law once held
by the court of last resort remains the rule throughout the
subsequent history of the cause, in all its stages, except
under extraordinary circumstances, which do not exist in
this case. 2 Van Fleet’s Former Adjudication, 1302, and
cases cited. Where the law of a case was determined after
full argument and consideration, by the Second Division of
this court, and upon a second appeal substantially the same
facts appeared, we refused to consider the questions of law
and held the parties concluded by the former decision. Cluff
v. Day, 141 N. Y. 580 (36 N. E. 182). That there is a question
of fact in this case is res judicata. The rule of res judicata
controls the parties, while that of stare decisis guides the
courts.’’
166
Appendix
In Appleton v. Smith, 1 Fed. Cas. 1075, Fed. Cas. No. 498,
Justice Miller (of the Supreme Court), sitting as a Circuit
Justice in the District of Arkansas, in 1870, had before him
a motion to quash an attachment levied on goods. He denied
the motion, and in doing so said:
‘‘Upon looking into the record of the case, I find that the
same motion, based upon the same legal proposition, was
made at the last term of the court, and was overruled by the
last district judge, who at that time held the court. I have
repeatedly decided in this circuit, since I was first assigned
to it, that I would not sit in review of the judgments and
orders of the court, made by the District Judges in my ab-
sence. Where, as in the present case, the motion is made
on the same grounds, and with no new state of pleadings
or facts, it is nothing more than an appeal from one judge
of the same court to another, and though it is my province
in the Supreme Court to hear and determine such appeals,
I have in this court no such prerogative.
The district judge would have the same right to review my
judgments and orders here as I would have in regard to
his. It would be in the highest degree indelicate for one
judge of the same court thus to review and set aside the
action of his associate in his absence, and might lead to un-
seemly struggles to obtain a hearing before one judge in
preference to the other. I have also held, and have pre-
scribed it for myself as a rule of conduct, that the presence
of the District Judge, and his consent to a review of his de-
cision, will not vary the course to be pursued.’’
In United States v. Biebusch, 1 F. 213, 1 MeCrary 43,
Judge McCrary sitting as a Circuit Judge in 1880, said:
‘In this case and one other I have at this time heard, with
the District Judge, motions for new trials in cases tried
before him when holding alone the Cireuit Court. I have
done so at his request, and only for the purpose of advising
167
Appendia
with and assisting him. It is well settled in this circuit
that the rulings of the District Judge while holding the Cir-
cuit Court are not subject to be reviewed in the same court,
either by the Cireuit Judge or the Circuit Justice. I make
this announcement so that it may be understood that I am
not to be expected, as a rule, to entertain motions for new
trials in cases tried in my absence by the District Judge,
and that I will only sit with the District Judge in hearing
such matters when he desires and requests it. It is not
enough that he does not object or consent.”
In Cole Silver Mining Co. v. Virginia & Gold Hill Water
Co., 6 Fed. Cas. No. 2, 990, Mr. Justice Field (of the Su-
preme Court), sitting in the Cireuit Court, said:
‘IT, The injunction, although preventive in form, is un-
doubtedly mandatory in fact. It was intended to be so by
the Cireuit Judge who granted it, and the objection which
is now urged for its dissolution was presented to him, and
was fully considered. I could not with propriety reconsider
his decision, even if I differed from him in opinion. The
Cireuit Judge possesses, as already stated, equal authority
with myself in the cireuit and it would lead to unseemly con
flicts, if the rulings of one judge, upon a question of law,
should be disregarded, or be open to review by the other
judge in the same case.’’
In Ogley v. Attrill, 14 F. 214, Judge Pardee, sitting in the
Circuit Court for the Eastern District of Louisiana, in 1882,
was asked to set aside a substituted service of process. He
said:
‘‘T have examined the record, and | find that this question
has been passed upon and adjudicated by the District Judge
sitting in this court in the early stage of this case. 12 Fed.
Rep. 227. This decision is not open for review to any other
judge sitting in this court in the same case.’’
In Reynolds v. Iron Silver Mining Co., 33 Fed. Rep. 354,
168 ;
Appendix
Justice Brewer (of the Supreme Court), sitting in the Cir-
cuit Court in Colorado in 1888, was asked to dissolve an in-
junction which had been granted by another judge of the
court. He declined to do it, and, after referring with ap-
proval to what was said by Justice Miller in Appleton v.
Smith, supra, and by Judge McCrary in United States v.
Biebusch, supra, went on to say:
‘*You all know, at least those who have been familiar with
the jurisprudence of the State of New York, how many un-
seemly struggles there have been, as Justice Miller refers
to, to get a case now before one judge, and then before an-
other. Under their peculiar system, you get an order be-
fore one judge; the beaten party goes to another judge, gets
an order staying proceedings, and sets down a motion be-
fore a third to vacate the order, and one never knows when
the litigation is at an end, or where it is to continue; whereas,
if it is all continued before the same judge from the com-
mencement to the close, there is a consistency in the rul-
ings, if nothing else; and I think that the orderly adminis-
tration of justice requires, and justice itself will in the long
run and the general average be best secured, if litigation
commenced before one judge continues before him until it
shall be taken to an appellate tribunal.’’
In Wakelee v. Davis, 44 F. 532, Judge Coxe, sitting in the
Circuit Court for the Southern District of New York in
1891, in a case which had been twice before the court on de-
murrer, said:
‘The propositions of law presented are the same now as
on demurrer. Some testimony has been taken pro and con,
but, upon all important questions, it is substantially con-
ceded that the legal aspects of the cause remain unchanged.
It is true that in deciding the issues presented by the de-
murrer the court spoke through another judge, but the law
there enunciated is not merely the individual opinion of the
169
Appendix
judge who presided; it is the law of this court, to be fol-
lowed, upon similar facts, until a different rule is laid down
by the Supreme Court. A re-examination and discussion of
the question involved is, therefore, unnecessary, for the rea-
son that the court is constrained to follow its former deci-
sion.’’
In Shreve v. Cheesman, 69 F. 785, 790, 16 C.C.A. 413, 418,
Judge Sanborn, writing for the Circuit Court of Appeals in
the Eighth Circuit, in 1895, said:
‘Tt is a principle of general jurisprudence that courts of
concurrent or co-ordinate jurisdiction will follow the delib-
erate decisions of each other, in order to prevent unseemly
conflicts, and to preserve uniformity of decision and har-
mony of action. This principle is nowhere more firmly es-
tablished or more implicitly followed than in the Circuit
Courts of the United States. A deliberate decision of a
question of law by one of these courts is generally treated as
a controlling precedent in every federal Circuit Court in
the Union, until it is reversed or modified by an appellate
court. Striking illustrations of this principle will be found
in Culeanite Co. v. Willis, 1 Flip. 389, 393, Fed. Cas. No.
5,606, in which Judge Emmons said of these courts: ‘They
constitute a single system; and when one court has fully
considered and deliberately decided a question, every sug-
gestion of propriety and fit public action demand it should
be followed until modified by the appellate court. * * *So
great, however, is the importance I attach to uniformity of
decision by courts of co-ordinate jurisdiction, that I feel
constrained to adopt the rule thus establ’shed in the several
districts in which these cases arose. It seems more impor-
tant that the rule should be uniform and certain than that
it should be consistent with principle’; Welle v. Navigation
Co. (C. C.), 15 F. 561, 570; Reed v. Railroad Co. (C. C.), 21
F. 283; American Wood Paper Co. v. Fiber Disintegrating
170
Appendix
Co., 3 Fish. Pat. Cas. 362, Fed. Cas. No. 320; Goodyear v.
Berry, 3 Fis. Pat. Cas. 439, Fed. Cas. No. 5,556; Machinery
Co. v. Knox (C. C.), 39 F. 702. Nor has it been thought less
vital to a wise administration of justice in the federal courts
that the various judges who sit in the same court should not
attempt to overrule the decisions of each other, especially
upon questions involving rules of propriety or of practice,
except for the most cogent reasons.”’
In Taylor v. Decatur Co., 113 F. 449, District Judge Toul-
min, sitting in the Cireuit Court for the Northern District of
Alabama, in 1901, said:
‘‘Such of the demurrers as are filed to the original bill,
and which were heretofore considered and overruled by
Judge Swayne, then presiding in this court, are not passed
on by me further than pro forma to overrule them, as hav-
ing been ruled on by this court. One judge will not review
the rulings of another in the same court.”’
In Plattner Implement Co. v. International Harvester Co.
of America, 133 F. 376, 66 C.C.A. 438, a general demurrer
was interposed to an answer and was sustained by the resi-
dent District Judge. The defendant thereupon filed an
amended answer, and the plaintiff filed a reply to that an-
swer. There was atrial before a jury and the District Judge
of another district, who was temporarily holding the court.
The trial judge directed a judgment for the defendant upon
a defense, although the resident judge had previously sus-
tained the demurrer to it. Judge Sanborn, writing for the
Circuit Court of Appeals for the Eighth Circuit, in consid-
ering the action of the trial judge, after referring to the rule
laid down in Shreve v. Cheesman, supra, and referring to it
as a ‘‘rule of comity and of necessity,’’ said:
‘‘But the rule itself, and a careful observance of it, are
essential to the prevention of unseemly conflicts, to the
speedy conclusion of litigation, and to the respectable ad-
+
171
Appendix
ministration of the law, especially in the national courts,
where many judges are qualified to sit at the trials, and are
frequently called upon to act in the same cases. It is un-
avoidable that the opinions of several judges upon the many
doubtful questions which are constantly arising should
sometimes differ, and a rule of practice which would permit
one judge to sustain a demurrer to a complaint, another of
co-ordinate jurisdiction to overrule it and to try the case
upon the theory that the pleading was sufficient, and the
former to then arrest the judgment, upon the ground that his
decision upon the demurrer was right, would be intolerable.
It has long been almost universally observed.’’
In Presidio Mining Co. v. Overton, 261 F. 933, decided by
the Cireuit Court of Appeals in the Ninth Circuit, it quoted
approvingly the remarks of Justice Field in Cole Silver Min-
ing Co. v. Virginia & Gold Hill Water Co., supra, already
set forth in this opinion.
We have at some length set forth the rulings of the federal
courts on the effect of a decision made by a trial judge upon
the right of a judge sitting subsequently in the same court
and in the same case to overrule the decision of the first
judge on the same matter. We have done so because the
question raised is important, and has to do with the digni-
fied and orderly procedure of the courts, and is a departure
from what has been regarded heretofore in this and in the
other circuits as improper and not to be countenanced.
The learned judge who first passed on the sufficiency of the
complaint, and held it to be sufficient, denying the motion
to dismiss, filed no opinion; and the learned judge who sub-
sequently sat in the case, in the same court, held the same
complaint insufficient and dismissed it, and also wrote no
opinion, but in denying the motion to amend the complaint
to the complaint, if allowed, would not cure the infirmity.
172 ;
Appendia
Old Colony Trust Co. v. L. T. & T. Co., 297 F. 152. Motion
denied.’’
(1, 2). It appears, therefore, that in dismissing the com-
plaint, he thought the decision of this court in the Old Col-
ony Trust Co. Case, and handed down after Judge Mack
had made the original order sustaining the sufficiency of the
complaint, was erroneous in law, ought to be disregarded by
him, and required the dismissal of the action. In so hold-
ing we think he made a serious mistake, quite irrespective of
whether or not the Old Colony Trust Co. Case was correctly
construed by him. The counsel for the plaintiff in error in-
sists that that case is plainly distinguishable from this in
its facts, and is not at all governed by it. We shall not pass
upon that question at this time, but content ourselves with
holding that the decision made by Judge Mack was the law
of the case as established in the District Court, and should
have been so treated by any other judge sitting in the same
ease in that court. Judges of co-ordinate jurisdiction, sit-
ting in the same court and in the same case, should not over-
rule the decisions of each other.
For that reason and that reason only, the judgment is re-
versed, and the District Court is directed to reinstate the
action and grant the motion to amend the complaint.
HYDE AND SCHNEIDER v. UNITED STATES, 225 U.
S. 347.
ON WRIT OF CERTIORARI TO THE COURT OF AP-
PEALS OF THE DISTRICT OF COLUMBIA.
(1) In this case the defendant applied for a writ of cer-
tiorari and the Attorney General assented to granting it on
the ground that the determination of the case depends upon
173
Appendix
the principles of law governing conspiracy and it is of vital
importance to the United States, as well as its citizens, to
have those principles settled by this court.
(2) While under the ancient rule of conspiracy the gist
was the conspiracy itself and the crime was complete with-
out any overt act, Sec. 5440, Rev. Stat. prescribes as neces-
sary to constitute an offense under it not only the unlawful
conspiracy but also an overt act to effect the object by at
least one of the conspirators.
(3) Quaere as to the extent of agency between persons
conspiring in violation of Sec. 5440, Rev. Stat.
(4) There may be a constructive presence in a State, dis-
tinct from personal presence, by which. a crime committed
in another State may be consummated, and render the per-
son consummating it punishable at that place.
(5) In construing criminal laws, courts must not be in
too great solicitude for the criminal to give him immunity
because of the difficulty in convicting or detecting him.
(6) In determining the place of trial there is no oppres-
sion in taking the conspirators to the place where the overt
act was performed rather than compelling the victims and
witnesses to go to the place where the conspiracy was
formed.
(7) The size of our country has not become too great for
the effective administration of criminal justice.
(8) Where a continuing offense is committed in more than
one district, the Sixth Amendment does not preclude a trial
174
Appendix
in any of those districts. Armour Packing Co. v. United
States, 209 U. S. 56.
(9) Overt acts performed in one district by one of the
parties who had conspired in another district in violation
of Sec. 5440, Rev. Stat., give jurisdiction to the court in the
district where the overt acts are performed as to all the con-
spirators. Brown v. Elliott, p. 392, post (in the report) ;
United States v. Kissel, 218 U. S. 601, followed to the effect
that a conspiracy under 5440, Rev. Stat. may be continuing
one, and that the offense is not barred on the expiration of
the period from the date of the conspiracy itself.
(10) The fact that one of the conspirators was the ser-
vant of another conspirator does not preclude there being a
conspiracy between them, and, until there is an affirmative
withdrawal from the conspiracy by the servant, his acts
bind his employer and co-conspirator so far as preventing
the statute of limitations from running.
(11) Until a conspirator affirmatively withdraws from a
continuing conspiracy there is conscious offending that pre-
vents the statute from running.
(12), (13), et seq. left out. See them in the Reported Case.
Mr. Justice McKenna delivered the opinion of the court.
At p. 355.
The case is here on certiorari.
The Attorney General assented to the granting of the
writ, he saying that ‘‘the determination of this case depends
upon the principles of law governing conspiracies,’’ and
that in view of the decisions of the lower courts and of the
numerous prosecutions under the conspiracy statute, ‘‘it
was of vital importance to the United States, as wel! as to
its citizens, that these principles be definitely settied by this
court.’’
175
Appendix
The petitioners asked the court to review the case for the
purpose of having it decide certain questions of law which
they characterized as ‘‘important and fundamental’’ one of
which, counsel says, granting the writ took out of the case.
Of those remaining one is ‘‘as to the effect of an overt act
in giving jurisdiction in an indictment for conspiracy under
section 5440,’’ and the other is ‘‘as to the effect of overt
acts by some of the accused in depriving the petitioners of
the benefit of the statute of limitations.’’....
First, as to the overt acts in giving jurisdiction:
It will be observed that the indictment charges that the
conspiracy was formed in the District of Columbia and that
certain of the overt acts were performed there and others
in California.
“If these defendants got together in California and
planned to defraud the United States out of its lands by the
means charged in the indictment, and in pursuance of that
plan sent Dimond here to get the titles from the Govern-
ment, they were acting within the District of Columbia as
much as if they had come and done the thing themselves.’’
And subsequently the United States Attorney assented to
the proposition that the Government could not prevail ex-
cept on the theory that it was sufficient to show an overt act
in the District of Columbia, and the court said ‘‘that if that
theory was wrong, of course they failed.”’
The question, therefore, is presented #s to the venue in
conspiracy cases, whether it must be at the place where the
conspiracy is entered into or whether it may be at the place
where the overt act is performed, the Sixth Amendment of
the Constitution of the United States requiring all criminal
prosecutions to be in the ‘‘district wherein the crime shall
have been committed.’’
The crime of conspiracy is defined by Sec. 5440 of the Re-
vised Statutes as follows:
176 2
Appendix
‘Tf two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States in any manner or for any purpose, and one or more
of such parties do any act to effect the object of the conspir-
acy, all the parties to such conspiracy shall be liable to a
penalty of not more than ten thousand dollars, or to impris-
onment for not more than two years, or to both fine and im-
prisonment in the discretion of the court.”
It is contended by the defendants that the conspiracy—the
union in an unlawful purpose—constitutes the crime and
that the requirement of an overt act does not give the offense
criminal quality or extent, but that the provision of the
statute in regard to such act merely affords an opportunity
to withdraw from the design without incurring its erimi-
nality (called in the cases a locus penitentiae).
But we think the argument insists too exactly on the an-
cient law of conspiracy, and does not give effect to the
change made in it by $5440, supra. It is true that the con-
spiracy, the unlawful combination, has been said to be the
crime, and that at common law it was not necessary to aver
or prove an overt act, but Sec. 5440 has gone beyond such
rigid abstraction and prescribes, as necessary to the of-
fense, not only the unlawful conspiracy, but that one or more
of the parties must do an ‘‘act to effect’’ its object, and
provides that when such act is done ‘all the parties to such
conspiracy’’ become liable. Interpreting the provision, it
was decided in Hyde v. Shine, 199 U. S. 62, 67, that an overt
act is necessary to complete the offense. And so it was said
in United States v. Hirsch, 100 U. S. 33, recognizing that
while the combination of minds in an unlawful purpose was
the foundation of the offense, an overt act was necessary
to complete it. It seems like a contradiction to say that a
thing is necessary to complete another thing and yet that
other thing is complete without it. It seems like a paradox
177
Appendix
to say that anything, to quote the Solicitor General, ‘‘can be
a crime of which no court can take cognizance.’’ The con-
spiracy, therefore, cannot alone constitute the offense. It
needs the addition of the overt act. Such act is something
more, therefore, than evidence of a conspiracy. It consti-
tutes the execution or part execution of the conspiracy and
all incur guilt by it, or rather complete their guilt by it,
consummating a crime by it cognizable then by the judicial
tribunals, such tribunals only then acquiring jurisdiction.
A question may be raised as to the extent of the agency
between conspirators, but we need not enter into that broad
inquiry. As far as the case at bar is concerned, may be ad-
mitted that the act must have the conspiracy in view and
have some power to effect it. In the present case the field
of operation and its consummation were to be and were in
the States of California and Oregon and in the District of
Columbia, where the General Land Office is situated. The
action of the latter was to be induced or influenced, and this
might be through deception, it might be through fraud, or it
might be through innocent agents and acts of themselves
having no illegality, but effectually causing and moving offi-
cial action to the consummation of the end designed and con-
templated. Overt acts of all these kinds are charged. The
bribery and deception of the officers, the intervention of at-
torneys and the seemingly harmless mailing of information
and directions all are charged and all had some relation to
the scheme devised and were steps to its accomplishment.
The powers of the Land Office were necessarily to be in-
voked and proceedings therein instituted and prosecuted by
acts innocent indeed of themselves, taking only criminal
taint from the purpose for which they were done. Indeed, is
not this so of acts done in the execution of any crime? Dis-
charging a loaded pistol at a target is an innocent pastime,
discharging a loaded pistol at a human being with felonious
178
Appendix
intent takes a quality from such intent and may constitute
murder.
If the unlawful combination and the overt act constitute
the offense, as stated in Hyde v. Shine, marking its begin-
ning and its execution or a step to its execution, Sec. 731 of
the Revised Statute must be applied. That section provides
that ‘‘when any offense against the United States is begun
in one judicial district and completed in another it shall
be deemed to have been committed in either, and may be
dealt with, inquired of, tried, determined and punished in
either district, in the same manner as if it had been actually
and wholly committed therein.’’ This provision takes an
emphasis of signification from the fact that it was originally
a part of the same section of the statute which defined con-
spiracy—that is Sec. 30 of the Act of March 2, 1867, 14
Stat. 484, c. 169. Nor has the provision lost the strength
of meaning derived from such association by its subsequent
separation, for it is provided in Sec. 5600 of the Revised
Statute that ‘‘the arrangement and classification of the sev-
eral sections of the revision have been made for the more
convenient and orderly arrangement of the same, and there-
fore no inference or presumption of a legislative construc-
tion is to be drawn by reason of the Title, under which any
particular section is placed.”
Section 731 was applied in re Palliser (136 U. S. 257) to
’ the offense of unlawfully using the mails. It was decided
that an offense committed by mailing a letter was continued
in the place where the letter was received, and triable in
the District Court of the United States having jurisdiction
in such place. The case was cited in Benson v. Henkel, 198
U. S. 1, 15, which was concerned with extradition proceed-
ings against one charged with the crime of bribery, alleged
to have been committed by mailing a letter in the State of
California, directed to certain officers of the General Land
179
Appendix
Office in the District of Columbia. It was objected to the
removal of the defendant to the District of Columbia for
trial that the crime was committed, if at all, in California.
The contention was held untenable under the ruling in In re
Palliser. The strong expression of counsel for the defen-
dants may, therefore, be turned from derision of to the sup-
port of the view, that crime, even conspiracy, may be car-
ried from one place to another in the ‘‘mail pouches.’’ And
we may ask in passing, may not a conspiracy be formed
through the mails constituted by letters sent by persons liv-
ing in different States? And, if so formed, we may further
ask, to which State would the conspiracy be assigned? In
such case must the law come forward with some presump-
tion or fiction, if you please, give locality to an union of
minds between men who were never at the same place at the
same time? The statute cuts through such puzzles and
makes the act of a conspirator, which necessarily has a defi-
nite place without the aid of presumption or fiction, the legal
inception of guilt inculeating all and subjecting all to punish-
ment.
- In re Palliser was also applied in Burton v. United States,
202 U. S. 344, in which it was held that there was jurisdic-
tion in Missouri of a criminal charge against Burton for
agreeing in that State to receive prohibited compensation
for certain services to be rendered by him while he was a
United States Senator, the offer being personally present
in the State. The court said through Mr. Justice Harlan (p.
387): ‘‘The constitutional requirement is that the crime
shall be tried in the State and District where committed, not
necessarily in the State or district where the party commit-
ting it happened to be at the time. This distinction was
brought out and recognized in Palliser’s case, 136 U.S. 257.’’
And, after stating that the agreement between the parties
was completed at the time of the acceptance of Burton’s
180 °
Appendix
offer at St. Louis, he added: ‘‘Then the offense was com-
mitted, and it was committed at St. Louis, notwithstanding
the defendant was not personally present in Missouri when
his offer was accepted and the agreement was completed.’’
And the contention was rejected ‘‘that an individual could
not, either in law or within the meaning of the Constitution,
commit a crime within a State in which he is not physically
present at the time the crime is committed.”’
This court has recognized, therefore, that there may be a
constructive presence in a State, distinct from a personal
presence, by which a crime may he punished by an exercise
of jurisdiction, that is, a person committing it may be
brought to trial and condemnation. And this must be so
if we would fit the laws and their administration to the acts
of men and not be led away by mere ‘‘bookish theorick.”’
We have held that a conspiracy is not necessarily the con-
ception and purpose of the moment, but may be continuing.
If so in time, it may be in place—carrying to the whole area
of its operations the guilt of its conception and that which
follows guilt, trial and punishment. As we have pointed out,
the statute states what in addition to the agreement is nec-
essary to complete the measure of the offense. The guilty
purpose must be put into a guilty act.
We realize the strength of the apprehension that to ex-
tend the jurisdiction of conspiracy by overt acts may give
to the Government a power which may be abused, and we
do not wish to put out of view such possibility. But there
are counter considerations. It is not an oppression in the
law to accept the place where an unlawful purpose is at-
tempted to be executed as the place of its punishment, and
rather conspirators be taken from their homes than the vic-
tims and witnesses of the conspiracy be taken from theirs.
We must not, in too great a solicitude for the criminal, give
him a kind of immunity from punishment because of the dif-
181
Appendiz
ficulty in convicting him—indeed, of even detecting him.
And this may result, if the rule contended for be adopted.
Let him meet with his fellows in secret and he will try to
do so, let the place be concealed, as it can be, and he and
they may execute their crime in every State in the Union
and defeat punishment in all. And the suppositions are not
fanciful, as illustrated by a case submitted coincidently with
this. Brown v. Elliott, post, p. 392. The possibility of such
a result repels the contention and demonstrates that to yield
to it would éarry technical rules and rigidity of reasoning
too far for the practical administration of criminal justice.
We see no reason why a constructive presence should not
be assigned to conspirators as well as to other criminals;
and we certainly cannot assent to the proposition that it is
not competent for Congress to define what shall constitute
the offense of conspiracy or when it shall be considered com-
plete and do with it as with other crimes which are com-
menced in one place and continued in another. Nor do we
think that the size of our country has become too great for
the effective administration of criminal justice. We held
in Armour Packing Company v. United States, 209 U.S. 56,
that the transportation of merchandise for less than the
published rate is, under the Elins Act, a continuing offense,
and that the Sixth Amendment of the Constitution of the
United States, providing that an accused shall be tried in
the State and District where the crime is committed, did not
preclude a trial of the offense in any of the districts through
which the transportation was conducted. See also Haas v.
Henkel, 216 U. S. 462, 473.
In Robinson v. United States, in the Cireuit Court of Ap-
peals of the Eighth Circuit, the question was directly pre-
sented. 172 Fed. Rep. 105. The conspiracy passed on was
alleged in the indictment to have been entered into in Cincin-
nati and Chicago, the overt acts set out were proved to have
182 ‘
Appendix
been committed in Minneapolis and the evidence showed
that it was the intention of the conspirators to carry out
their conspiracy at Minneapolis. The trial court was moved
to direct a verdict for the defendants if the jury found that
the agreement was entered into in Cincinnati and Chicago
and was complete when the parties went into the district of
Minnesota. The instruction was refused and, the defen-
dants having been convicted, the refusal was assigned as
error, in the Circuit Court of Appeals, based on the provi-
sions of the Constitution of the United States giving those
accused of crime the right to trial by jury of the State and
district wherein the crime shall have been committed.
The court, passing on the ruling of the trial court, said by
District Judge Carland (p. 108), and we quote its language
to avail ourselves not only of the citation of cases, but of
the comments upon them.
“To the same effect are Commonwealth v. Gillespie, 7
Serg. & R. (Pa.), 469, 10 Am. Dee. 475; Noyes v. State, 41
N. J. Law, 418; Commonwealth v. Corlies, 3 Brewst. (Pa.),
575.
‘‘Tf this was the law of venue in conspiracies at common
law, where proof of an overt act was not necessary to show
a completed offense, the same rule can be urged with much
greater force under section 5440, Rev. St. U. S., as the of-
fense described therein for all practical purposes is not
complete until an overt act is committed.... It seems clear,
then, that whether we place reliance on the common law or
on section 731, Rev. St., the venue of the offense was cor-
rectly laid in the District of Minnesota, and the evidence
sustained the allegation of the indictment.”
To the cases cited by the learned court these may be
added: State v. Nugent, 77 N.J.L. 84, 86; Bloomer v. State,
48 Maryland, 621; People v. Arnold, 46 Michigan, 268, 275;
American Insurance Co. v. State, 75 Mississippi, 24; State
183
Appendix
vy. Hamilton, 13 Nevada, 386; International Harvester Co. v.
Commonwealth, 137 Kentucky, 668, 674; Pearce v. Terri-
tory, 11 Oklahoma, 438; Ex Parte Rogers, 10 Tex. App. 655,
and Raleigh v. Cook, 60 Texas, 438.
The contention is answered by the views which we have
already expressed. As the overt acts give jurisdiction for
trial, it is not essential where the conspiracy is formed so
far as the jurisdiction of the court in which the indictment
is found and tried is concerned. This is established by the
eases which have been cited, and the question will be con-
sidered further in Brown v. Elliott, and Moore v. Elliott,
eases submitted coincidently with this, post, p. 392.
The fifth, sixth, seventh and eighth assignments of error
invoke the statute of limitation in behalf of Hyde and
Schneider.
The plea of the statute as affected by overt acts was con-
sidered in United States v. Kissel, 218 U. S. 601, where it
was declared that a conspiracy may be a continuing one, and
the doctrine is applicable to the case at bar unless there is
something special in the facts regarding Hyde and Schnei-
der which constitutes a defense as to them. This is asserted.
It is contended that the relation of Schneider to the conspir-
acy was only that of one rendering service as a servant of
his master (Hyde), in consideration of the salary paid to
him by his master, and that he had not within three years
before the finding of the indictment participated in any way
in the carrying out of the master’s scheme, the subject of the
conspiracy. And from this it is contended the question
arises whether Hyde is not also entitled to the protection of
the statute of limitation in so far as he is charged with con-
spiring with his employe Schneider.
But the fact that a salary was paid by one to another would
not preclude a conspiracy between them. It might, indeed,
mark a more humble criminal desire, and one which pre-
184
Appendix
ferred a certain regard rather than take chances in the suc-
cess of a criminal enterprise, and it was certainly not in-
consistent with a full and active participation in the scheme.
Indeed, Schneider, in a confession which we shall presently
refer to, stated that a salary and the certainty of employ-
ment was his inducement.
The Government contends that there was such participa-
tion originally and to a time within the statute, and that
there is nothing to show a repudiation of or withdrawal from
the conspiracy by him before 1902, when he made a partial
disclosure of the conspiracy to the Government.
The court charged the jury in substance that if Schneider
had engaged in the conspiracy ‘‘back of the three year pe-
riod’’ and the conspiracy contemplated that acts should be
done from time to time through a series of years until the
purposes of the conspiracy should be accomplished, al-
though he, Schneider, did not do anything within the three
year period but ‘‘remained acquiescent, expecting and un-
derstanding’’ that further acts should be performed, they,
if performed, would be his acts ‘‘and would have the same
effect against him as if he had done them himself. He would
still be acting through his colleagues. He might be playing
his part by keeping still as much as he did formerly by act-
ing.’’ ’
The contention of the defendants is that the statute begins
to run from the last overt act within three years from the
formation of the conspiracy within which there was con-
scious participation. (Italics ours.) The Government makes
the counter contention that however true this may be as to
accomplished conspiracies it is not true of one having con-
tinuity of purpose and which contemplated the performance
of acts through a series of years. And that such a distinc-
tion can exist, we have seen is decided and illustrated in
United States v. Kissel. And necessarily so. Men may have
185
Appendia
lawful and unlawful purposes, temporary or enduring. The
distinction is vital and has different consequences and inci-
dents. The conspiracy accomplished or having a distinct
period of accomplishment is different from one that is to be
continuous. If it may continue it would seem necessarily to
follow the relation of the conspirators to it must continue,
being to it during its life as it was to it the moment it was
brought into life. If each conspirator was the agent of the
others at the latter time he remains as agent during all of
the former time. This view does not, as it is contended, take
the defense of the statute of limitation from conspiracies.
It allows it to all, but make its application different. Nor
does it take from a conspirator the power to withdraw from
the execution of the offense or to avert a continuing crimi-
nality. It requires affirmative action, but certainly that is
no hardship. Having joined in an unlawful scheme, having
constituted agents for its performance, scheme and agency
to be continuous until full fruition be secured, until he does
some act to disavow or defeat the purpose he is in no situa-
tion to claim the delay of the law. As the offense has not
been terminated or accomplished he is still offending. And
we think, consciously offending as certainly, as we have said,
as at the first moment of his confederation, and consciously
through every moment of its existence. The successive
overt acts are but steps toward its accomplishment, not nec-
essarily its accomplishment. This is the reasoning of the
Kissel Case stated in another way. As he has started evil
forces he must withdraw his support from them or incur
the guilt of their continuance. Until he does withdraw there
is conscious offending and the principle of the cases cited by
defendants is satisfied.
But it is contended that under the instructions of the
court Schneider was involved in criminality by overt acts
done not only after he had ceased to be in Hyde’s employ-
186
Appendix
ment in any capacity, but after he had disclosed that there
was a conspiracy against the Government. It was testified
by Woodford D. Harlan that disclosure of frauds had come
through one J. A. Zabriskie, he, however, knowing nothing
about the matters except as informed by Schneider. The
matter was referred to an agent who reported conversa-
tions with Schneider giving detailed information of the
frauds and the manner by which they were accomplished.
This report was received at the General Land Office in No-
vember, 1902. It does not appear what became of the re-
port. The recollection of the witness was that he saw the
report first, and he testified that he took it to the clerk who
was distributing the mail, but for what purpose it does nos
appear. He never saw it again until one day during the
trial. He, however, wrote to Benson about it, and after
having seen weekly statements of certain special agents who
were investigating the Schneider charges, he notified Ben-
son. This seems to have been in March, 1903. Later, in
October and November, 1903, he also wrote Benson at the
suggestion of Detective Burns.
There are overt acts charged subsequent to the disclosure
made by Schneider, and it is contended that by the instruc-
tion embodied in the seventh assignment of error Schneider
was continued in the conspiracy by overt acts committed
after his disclosure to the agent of the Land Department
had been communicated to the Commissioner of the General
Land Office.
(At p. 376.) ‘‘The first question is,’’ the court charged,
‘*Did the defendants conspire at all? The second question
is whether they conspired to accomplish the end alleged.
The third question is, whether they conspired to accomplish
that end by the fraudulent means alleged, so far as the
indictment in that respect is necessary to be proved, refer-
ring to what has been already stated in that respect. The
187
Appendix
fourth question is, under each count, whether the overt act
therein mentioned has been proved.
‘Two other important questions must be determined in
connection with the foregoing: One relating to the place,
the other to the time. The conspiracy must have existed in
the District of Columbia, and it must have existed and some
overt act in pursuance of it must have been committed within
three years next before the filing of the indictment.”
And, assuming that the conspiracy was established and
overt acts in furtherance of it shown in the District of Co-
lumbia, the court explained, ‘‘the conspiracy is here (the
District of Columbia) just as truly as if the defendants were
all here in person, doing those things with the common mind
and purpose which contemplated them. In such cireum-
stances the defendants would be conspiring together in the
doing of each act because each act would have reference
to the conspiracy. It would not be necessary that they
should put their heads together and go over the terms of
the conspiracy every time an act was done in furtherance
of it. It would be enough if the act was an expression of
their common understanding.’’ Brown v. Elliott.
(At p. 399.) It is charged that on April 5, 1907 (first
count), (see the Complaint in this case as to Counts, N. J.
Curtis), and on April, 1907 (second count), the appellants
and other persons ‘‘did then and there’’ conspire (we omit
the adverbs). This might well be contended, so far as re-
moval proceedings are concerned, as an allegation of the for-
mation of the conspiracy in the District of Nebraska, or
certainly a distinct and explicit renewal of it. And it would
seem like giving technicality too much effect to consider that
the agreement made in 1905, rather than its specific and
formal renewal in 1907, should determine the jurisdiction of
its trial. Besides, its continued existence and operation are
alleged, and we have seen if overt acts were done prior to
188
Appendix
1907 they may have been done at Omaha and constituted,
with those done afterwards, a part of an entire scheme, to
be executed by a succession of acts.
It is only by the assumption and insistence that the con-
spiracy was formed in 1905 that appellants give their con-
tention any foundation whatever. If the conspiracy was
formed at Omaha in 1907, upon the supposition that the
conspiracy constitutes the offense and the State and district
of its origin are the State and district of its trial, the Dis-
trict Court of Nebraska had jurisdiction. This follows, no
matter where the overt act was done. We have pointed out,
however, that the indictment does not show that the first
overt act was done at a place and district unknown. The
first overt act may have been performed at Omaha.
If either view, therefore, be accepted, the judgment of
the Circuit Court dismissing the petition for habeas corpus
must be affirmed.
If, however, we assume with appellants that the indict-
ment charged that the conspiracy was formed in 1905 and
at place unknown to the grand jurors, the same result must
be pronounced, upon the authority of Hyde v. The United
States, just decided, ante, p. 347. We there held that the
place of trial could be any State and district where an overt
act was performed. And we further held, following United
States v. Kissel, 218 U. S. 601, that conspiracy might be a
continuous crime. We there said, distinguishing a crime
from its results: ‘‘But when the plot contemplates bring-
ing to pass a continuing result that will not continue with-
out the continuous cooperation of the conspirators to keep it
up, and there is such continuous cooperation, it is a per-
version of natural thought and of natural language to call
such continuous cooperation a cinematographic series of
distinct conspiracies, rather than to call it a single one.”’’
These remarks are especially pertinent to the case at bar.
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It is alleged in the indictment that the conspiracy set forth
was designed to be and was continuous, and, being so, every
overt act was the act of all the conspirators, made so by
the terms and force of their unlawful plot.
In Lanbaugh v. United States, 179 Fed. Rep. 476, the
Cireuit Court of Appeals for the Eighth Circuit considered
the relation of the overt acts to the conspiracy and their
effect in determining the application of the statute of
limitations. The court said (p. 478), by Mr. Justice Van
Devanter, then Circuit Judge: ‘‘While the gravamen of
the offense is the conspiracy, the terms of section 5440
are such that there also must be an overt act to make the
offense complete (Hyde v. Shine, 199 U.S. 62, 76); and so
the period of limitation must be computed from the date
of the overt act rather than the formation of the conspiracy.
And where during the existence of the conspiracy there
are successive overt acts, the period of limitation must
be computed from the date of the last of them of which
there is appropriate allegation and proof, and this al-
though some of the earlier acts may have occurred more
than three years before the indictment was found. Lorenz
v. United States, 24 App. D. C. 337, 387; S. C. 196 U. S.
640; Ware v. United States, 84 CIC. A. 503, 154 Fed. Rep.
577, 12 L.R.A. (N.S.) 1053, S.C., 207 U.S. 588; Jones v.
United States, 89 C. C. A. 303, 162 Fed. Rep. 417; S.C.
212 U. S. 576.’
If, however the conspiracies may be regarded as distinct,
then one is charged as having been formed at Omaha in
April, 1907, and that overt acts were performed there to
effect its object within three years of the finding of the
indictment, to wit, October 7, 1909. These allegations es-
tablish the jurisdiction of the District Court of Nebraska
and exclude the application of the statute of limitations.
As the place of the overt act may be the place of juris-
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diction, it follows that the exact place where the conspiracy
was formed need not be alleged. This case illustrates
the evil which a contrary ruling would cause. The place
where the conspiracy was formed was unknown to the
grand jurors (and might be so in many cases), but it
was intended to be executed in a number of States of the
Union, and yet, under the rigor of the contention of ap-
pellants, the conspirators could not be tried in any of
them. In other words, not the place of the activities of
the conspiracy and where it incurs guilt, but the place
of its formation, which no one may know or can find out,
is the place of the jurisdiction of its trial. And what com-
pels this? It is answered: The Sixth Amendment of the
Constitution of the United States. We have determined
otherwise in Hyde v. United States, ante 347.
The Constitution of the United States is not intended
as a facility for crime. It is intended to prevent oppres-
sion, and its letter and its spirit are satisfied if where a
criminal purpose is executed the criminal purpose be pun-
ished. It is there that its victims are sought and defrauded.
It is there that its perpetrators should be brought to the
bar of justice for their acts; not for the mere conception
of them, but for the actual execution of them. The venue
of his trial is thus made by the criminal himself, not de-
termined by reasons or interests which may be adverse
to him and used to his injury.
U.S.C.A. Tit. 8, See. 41. Equei rights under the law.—
All persons within the jurisdiction of the United States
shall have the same rights in every State and Territory to
make and enforce contracts, to sue, be parties, give evi-
dence, and to the full and equal benefit of all laws and pro-
ceedings for the security of persons and property as is en-
joyed by white citizens, and shall be subject to like punish-
ments, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other. (R. 8S. Sec. 1977.)
191
Appendix
Section 43. Civil action for deprivation of rights.—
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
subjects, or causes io be subjected, any citizen of the United
States, or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress. (R. 8. See. 1979.)
Section 47. Second. If two or more persons in any State
or Territory conspire to deter, by force, intimidation, or
threat, any party or witness in any court of the United
States from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully, or to
injure such party or witness in his person or property on
account of his having so attended or testified, or to influ-
ence the verdict, presentment, or indictment of any grand
or petit juror in any such court, . . .; or if two or more per-
sons conspire for the purpose of impeding, hindering, ob-
structing, or defeating, in any manner, the due course of
justice in any State or Territory, with intent to deny to any
citizen the equal protection of the laws, or to injure him or
his property for lawfully enforcing, or attempting to en-
force, the right of any person, or class of persons, to the
equal protection of the laws;
Third. If two or more persons in any State or Territory
conspire, or go in disguise on the highway or on the prem-
ises of another, for the purpose of depriving, either di-
rectly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of prevent-
ing or hindering the constituted authorities of any State or
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Appendix
Territory the equal protection of the laws; ... in any case
of conspiracy set forth in this section, if one or more per-
sons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby an-
other 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. Sees. 563, 629.
Title 18 U.S.C.A. 88. Conspiring to commit offense
against United States.
If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States in any manner or for any purpose, and one or more
of such parties do any act to effect the object of such con-
spiracy, each of the parties to such conspiracy shall not
more than $10,000, or imprisoned not more than two years,
or both. (R. S. See. 5440; May 17, 1879, ¢. 8, 21 Stat. 4;
Mar. 4, 1907, ¢. 321, See. 37, 35 Stat. 1069.
Any two or more persons who shall combine, unite, con-
federate, conspire or bind themselves by oath, covenant,
agreement, or other alliance:
a. To commit a crime; or b. Falsely and maliciously to
indict another for a crime, or to procure another to be
charged or arrested for a crime; or c. Falsely to institute
and maintain any suit; or d. To cheat and defraud a person
of any property by any means which are in themselves
criminal; or e. To cheat and defraud a person of any prop-
erty by any means which if executed, would amount to a
cheat; or f. To obtain money by false pretenses; g. . . .;
h. To commit any act for the perversion or obstruction of
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Appendix
justice or the due administration of the laws—shall be
guilty of conspiracy and be liable to the same penalty as
persons convicted of a misdemeanor (R. S. of New Jersey.
Ch. 119. Conspiracy. 2:119-1).
If two or more persons conspire:
(1). To commit a crime; or, (2). Falsely and maliciously
to indict or convict another for any crime, or to procure
another to be charged or arrested for any crime; or (3).
Falsely to move or maintain any suit, action or proceed-
ing; or, (4). To cheat and defraud any person of any prop-
erty by any means which are in themselves criminal, or by
any means which if executed would amount to a cheat, or
to the obtaining of money or property by false pretenses;
or (5). To commit any act injurious to the public health,
to public morals, or to trade or commerce, or for the per-
version or obstruction of justice or the due administration
of the laws; they are punishable by imprisonment in the
county jail not exceeding one year, or by fine not exceeding
$1,000. (R.S. of Utah. Conspiracy. Chapter 11. Crimi-
nal Conspiracy Defined.)
U.S.C.A. Title 15, See. 1—Trusts, ete. in restraint of
trade illegal; penalty.—Every contract, combination in the
form of trust or otherwise, or conspiracy in restraint of
trade or commerce among the several States, or with for-
eign nations, is declared to be illegal.
Section 3. Trusts in Territories or District of Columbia
illegal; penalty—Combination a misdemeanor. Every con-
tract, combination in the form of trust or otherwise, or con-
spiracy, in restraint of trade or commerce in any Terri-
tory of the United States or of the District of Columbia,
or with foreign nations, or between the District of Colum-
bia and any State or States or foreign nations, is declared
illegal.
194
Appendix
Section 4. Jurisdiction of Courts, procedure.
The several district courts of the United States are in-
vested with jurisdiction to prevent and restrain violation of
Sections 1 to 7, inclusive, or Section 15 of this chapter.
July 2, 1890, c. 647, Sec. 4, 26 Stat. 209; Mar. 3, 1911, ¢. 231,
See. 291, 36 Stat. 1167.
Section 5. Bringing in Additional parties.
Whenever it shall appear to the court before which any
proceeding under Section 4 of this chapter may be pending
that the ends of justice require that other parties should be
brought before the court, the court may cause them to be
summoned, whether they reside in the district in which the
court is held or not; and subpoenas to that end may be
served in any district by the marshal thereof. July 2, 1890,
ce. 647, Sec. 5, 26 Stat. 210.
Any person who shall be injured in his business or prop-
erty by reason of anything forbidden in the anti-trust laws
may sue therefore in a district court of the United States
in the district in which the defendant resides or is found
or has an agent, without respect to the amount in con-
troversy and shall recover threefold the damages by him
sustained, and the costs of suit, including a reasonable at-
torney’s fees. (Oct. 15, 1914, c. 323, Sec. 4, 38 Stat. 731.)
Section 24. Liability of directors and agents of corpor-
ations.
Whenever a corporation shall violate any of the penal
provisions of the anti-trust laws, such violation shall be
deemed to be also that of the individual directors, officers,
or agents of such corporation who shall have authorized,
ordered, or done any of the acts constituting in whole or
in part such violation.
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195
Appendix
Section 26. Injunctive relief for private parties; excep-
tions.—Any person, firm, corporation, or association shall
be entitled to sue for and have injunctive relief, in any
court of the United States having jurisdiction over the
parties, against threatened loss or damage by a violation
of the anti-trust laws. ...
U.S.C.A. Title 28, Section 41, subd. (1) last sentence. The
foregoing provisions as to the sum or value in the matter
in controversy shall not be construed to apply to any of
the cases mentioned in the succeeding paragraphs of the
section. R. S. 563; Mar. 3, 1875, Sec. 1, 25 Stat. 433; Mar.
3, 1911, ce. 231, Sec. 24, 36 Stat. 1091.
Subd. (2). Crimes and offenses. Second. Of all crimes
and offenses cognizable under the authority of the United
States. (R. S. 563, pars. 1, 2, Sec. 629, pars. 19, 20; Mar. 3,
1875, c. 137, Sec. 1, 18 Stat. 470; Mar. 3, 1887, c. 373, See. 1,
24 Stat. 552; Aug. 13, 1888, ¢. 866, Sec. 1, 25 Stat. 433; Mar.
3, 1911, C. 231, See. 24, par. 2, 36 Stat. 1091.
Subd. (12). Suits Concerning Civil Rights. Twelfth.
Of all suits authorized by law to be brought by any person
for the recovery of damages on account of any injury to
his person or property, or of the deprivation of any right
or privilege of a citizen of the United States, by any act
done in furtherance of any conspiracy mentioned in Section
47 of Tit. 8 U.S.C.A. (R. S. 563, par. 11, Sec. 629, par. 17;
Mar. 3, 1911, ¢. 231, Sec. 24, par. 12, 63 Stat. 1092.)
Subd. (14). Suits to redress deprivation of civil rights.
Fourteenth. Of all suits at law or in equity authorized by
taw to be brought by any person to redress the depriva-
tion, under color of any law, statute, ordinance, regulation,
custom, or usage, of any state, of any right, privilege or
immunity, secured by the Constitution of the United States,
“—
196
Appendix
or of any right secured by any law of the United States
providing for equal rights of citizens of the United States,
or of all persons within the jurisdiction of the United
States, or (R. S. 563, par. 12, Sec. 629, par. 16; Mar. 3, 1911,
ce. 231, Sec. 24, par. 14, 36 Stat. 1092.) Historical Note.
This paragraph merges the jurisdiction which had been
vested in the District Court by par. 12 of R. S. 563; ‘*The
sum or value of the matter in controversy’’ is immaterial.
See last sentence of Subd. (1) of this Section. (41 U.S.C.A.
Title 28.)
Subd. (17). Suits by Aliens for Torts. Seventeenth.
Of all suits brought by any alien for a tort only, in viola-
tion of the laws of Nations or of a treaty of the United
States. (R. S. Sec. 563, par. 16; Mar. 3, 1911, c. 231, See.
24, par. 17, 36 Stat. 1093.) ‘‘The sum or value of the mat-
ter in controversy’’ is immaterial. See last sentence of
Subd. (1) of See. 41 U.S.C.A. Title 28.
Subd. (23). Suits against trusts, monopolies, and unlaw-
ful combinations. Twenty-third. Of all suits and proceed-
ings arising under any law to protect trade and commerce
against restraints and monopolies. (Mar. 3, 1911, ¢. 231,
Sec. 24, par. 23, 36 Stat. 1093.) Historical Note. ‘*The
sum or value of the matter in controversy” is immaterial.
See last sentence of subd. (1) of Sec. 41 U.S.C.A. Tit. 8.
‘‘The jurisdiction in civil and criminal matters conferred
on the district court by the provisions of Chapter 3 of Title
8, and Title 18, for the protection of all persons in the
United States in their civil rights, and for their vindica-
tion, shall be exercised and enforced in conformity with the
laws of the United States, so far as such laws are suitable
to carry the same into effect; ...’’. Section 729 of Title 28,
U.S.C.A. (R. S. Sec. 722). See also pp. 8-9 of the first
printed part of the Motion to Strike and Opposing Affidavit
thereto. The section is there set forth in full.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.