Reply Brief — Curtis v. Utah Fuel Co.

AUG 17 1945

IN THE

Supreme Court of the United States

IN THE MATTER OF NICHOLAS J. CURTIS

Petitioner,

Vs.

UTAH FUEL COMPANY, ET AL.

Respondents,

Docketed Under No. 1382

On Petition For Writ Or Cerriorari

REPLY BRIEF DIRECTED AGAINST THE

BRIEF FILED BY THE ABOVE NAMED RE-

SPONDENTS, UTAH FUEL COMPANY ET AL.

Nicuo.as J. Curtis LL. B.,

Petitioner Appearing Pro Se,

No. 145 N. Broad Street,

Trenton, 8, New Jersey.

To:

H. Cour Minton, Jr.,

Counsel of Record

And To His Co-Counsels,

Trenton Trust Bldg.,

Trenton, New Jersey.

2a

eal

TABLE OF CONTENTS

Reply brief directed against the so-called brief filed by.

respondents Utah Fuel Company, et al. ........

CITATIONS

CASES :

American Fire Ins. Co., 14 Utah 265,47 P. 83 ........

American Freehold Land Mortgage Co. v. MeManus,

eee ee re as on hey See we eee

Andrews v. Equitable Life Assur. Soc. of U. S., 124 F.

2d 788, certiorari denied 316 U. 8S. 682, 62 S. Ct.

Pe a PN EE Sov pi ich aes berecenes:

Bugeln and Smith v. Standard Brands, 27 F. Supp.

a ee aR oh hn ae Lie deuai ss sak hte OR pane 3%

Coughlin v. City of Milwaukee, 279 N. W. 62, 227 Wis.

ae ma I ee Sera adh + vanes pe rin a

Downey v. Palmer, 27 F. Supp. 993 page 513 ........

Earhard v. Valerius, 25 F. Supp. 754 ..............

Hazelring v. Donaldson, 2 Mete. (Ky.) 445 ........

Hudson vy. Scottish Union & Nat. Ins. Co., 110 Ky.

ON OS Fe” DRS SE a ee we

ER | ED. « Se er eee

Moore v. Illinois Cent. R. Co., 24 F. Supp. 731 ......

Overfield vy. Pennroad Corporation, (D., Pa, 1941) 39

eR sg te Jang h eviwe ota bu chia a aka cee

Peoples Natural Gas Co. v. Federal Power Commis-

sion, 127 F. 2d 153, 75 U. S. App. D. C. 235,

i,

PaGE

bo

certiorari denied 316 U. S. 700, 62 S. Ct. 1298,

ee RE cs so oe Veiga eam eh Na ee

Surget v. Byers, Fed. Cas. No. 13,629 Hempst. 715,

See oa 5 Cs pape ain re Paya eas

Williams v. Pope, 215 Fed. Rep. 1000 ..............

TEXTBOOKS:

Hughes Federal Practice, Sec. 20201, p. 419 Fed. Rule

Ye Sree eer cn ee re eee ee br ey

Mocets Pod. Pr. pee Ge «2.665 6 cs is cen enye:

Story’s Equity Pleadings, 10th Edition Ch. XX, page

746 et seq. See’s 884, 885, 889, 890, 891 ..........

Rauviews Low TRONS. 5 os ns ea.

Webster’s New International Dictionary, 2d Ed.

Montgomery’s Manual of Federal Jurisdiction and

Procedure, 4th Edition, 1942, Sec. 184 ..........

MISCELLANEOUS:

Federal Rules of Civil Procedure for the District

Courts of the U. S. following Sec. 723¢ of Title

28, U.S. C. A. (Federal Rule 10 (c)) ..........

37 C. J. 8. Sec. 1:

oe Pa reser ie err Tigers ee

5 SS ee arene Pree re Sa f

I ewes era sk a ae ASR wee es

Act of Congress of April 6, 1942, Ch. 210, See. 3, 56

Stat. 199, to wit: United States Code. Supp IV

1941-1945, Title 28 (Judicial Code and Judiciary)

Pe ee AUS Cer isthe h ek 6 Chae kway

at 6 TT Rs ee ae on he ow eee sas

Rule 15(a) 28 U.S. C. A. following See. 723¢ ........

il.

aX)

—a

Reply Brief

REPLY BRIEF DIRECTED AGAINST THE SO-CALLED

BRIEF FILED BY RESPONDENTS UTAH FUEL

COMPANY, ET AL.

Petitioner respectfully requests this Honorable Court

to refuse to consider the so-called brief of respondents,

Utah Fuel Company, et al. in opposition to petition of

Nicholas J. Curtis for writ of certiorari, brief dated June

26, 1945, filed in this cause, upon the following grounds:

1. The said brief so filed is not anywhere near of

like character with the brief required of the petitioner;

and the brief filed in the Circuit Court of Appeals, Third

Circuit, on appeal No. 8664, copies of which have been

filed with the Clerk of this Court and motion made to the

Court and copy served upon the respondents for the Court

to consider the same.

9. The said respondents failed to traverse any of

the facts stated by the petitioner in his Record, Petition,

Brief, Appendix, and Exhibits, and therefore the state-

ments so made should be taken as true.

3. A copy of any written instrument which is an

exhibit to a pleading is a part thereof for all purposes,

Federal Rule 10, (¢) of the Federal Rules of Civil Pro-

cedure for the Distriet Courts of the United States fol-

lowing section 723¢ of Title 28, U. S. C. A.

b. Under the authority of the said provisions of said

clause as found in said paragraph of said rule the Memo-

randum Opinion of Judge Thomas G. Walker as it is set

Reply Brief

forth on pages 17-22 of the Bill on the Equity side of the

District Court, is a part and particle of the Bill on the

equity side of said court. To the same effect and with like

force with the quotations made in paragraphs 21-22-23

on pages 24-27-30 of the said Bill in Equity. On this ques-

tion petitioner relies upon the following quotations of

authorities and statutes:

Hughes Federal Practice, See, 20201, p. 419. Fed.

Rule 10, e.

Likewise the practice of incorporating exhibits attached

to a pleading into the pleading and making it a part thereof

has long been followed in equity causes in the federal

courts. 5. (Marshal v. Turnball, 34 F. 827; Surget v. Byers,

Fed. Cas. No. 13,629, Hempst. 715, 15 L. Ed. 670) and is

usually permitted in Code Jurisdictions. 6. Stephens v.

American Fire Ins, Co., 14 Utah 265, 47 P. 88; Hudson v,

Scottish Union & Nat. Ins. Co., 110 Wy. ae 62 N. W. 5138;

American Freehold Land Mortgage Co, v. McManus, 68

Ark. 263, 58 S. W. 250, in equitable actions. See also:

Pe oples Natural Gas Co. v. Federal Power Commission,

127 F. 2d 153, Ayplog S. App. D. (‘, 235, certiorari denied 316

U.S. 700, 62 S. Ct. 1298, 86 L. Ed. 1769; Andrews v. Equit-

able Life pee Soc, of U. S., 124 F. 2d 788, certiorari de-

nied, 316 U.S. 682, 62S. Ct. 1270, 86 L. Ed. 1755; and also:

Moores Fed. Pr. page 612 and cases cited and its pocket

part, same page and cases cited; also Story’s Equity Plead-

ing, 10th Edition, Ch. XX, page 746 et seq. Sec’s. 884, 885,

889, 890, 891.

4. The said respondents in their said so-called brief

call the Honorable Court’s attention to the Opinion of Dis-

Reply Brief

trict Judge Guy L. Fake but failed to traverse the facts

stated in reasons X, Y, Z on pages 80-to first part of page

85 of the sworn petition for certiorari: Q. Inv. 7 on page

128 of brief in support of said petition; paragraph 10 of

Ch, D., pages 19-26, Petition; and paragraph 13 of Ch. D.

on page 27 of Petition for writ of certiorari; and para-

graph 4, pages 8 to top of page 11, of the brief to the Cir-

cuit Court of Appeals, Third Cireuit. To the same effect

in the brief they filed on the appeal to the said C, C. A. 3rd

(, 8664.

b. The first undersigned counsel in said brief is the

same person who staged the mob in the district court and

offered to pay to Judge Fake the full amount involved if

he would destroy the petitioner herein. The Opinion in

question is tainted with duress and fraud.

ce. Fraud is a generic term which embraces all the

multifarious means which human ingenuity can devise and

are resorted to by one individual to gain an advantage over

another by false suggestions or by suppression of the

truth (Citations) ; 37 C. J. S. See. 1 at page 204.

d. Fraud has also been defined as any cunning, de-

ception, or artifice used to circumvent, cheat, or deceive

another: 37 C. J. S. See. 1 at page 205, Citing Note 9 under

which numerous cases are cited,

e, Duress is by some authorities classified as a species

of fraud: 37 C. J. S. See. 1, at page 207, Citing Note 32

under which there are cited numerous cases,

f. Duress is gross species of fraud: Coughlin v. City

of Milwaukee, 279 N. W. 62, 227 Wis. 307, 119 A. L. R.

990.

Reply Brief

g. Bouviers Legal Dictionary defines Duress (at page

959) as ‘*Personal restraint, or fear of personal injury or

imprisonment.’’ Citing: Mazelring v. Donaldson, 2 Mete.

(Ky) 445, and cases quoted thereunder,

h. Webster’s New International Dictionary, 2d Ed.,

defines Duress as: ‘‘1. Hardness; harshness; cruelty; af-

fliction. 2. Lmprisonment; also constraint; pressure; com-

pulsion, 3, Compulsion or restraint by which a person is

illegally forced to do or forbear some act.”’

i. Only a revolutionary chieftain will resort to those

means to which District Judge Guy L. Fake and TH. Collin

Minton, Jr. resorted to destroy their adversary.

5. The Equity suit (Civil No. 2800) in the district

court was allocated to come up for hearing before a Court

of three judges. Notice to that effect was given by the

Clerk to the plaintiff below advising him to prepare and

submit pleading for three judges; and thereupon plaintiff

below and petitioner here acted aceordingly by preparing

and filing with the Clerk additional pleadings or copies

of the criginal on file, together with copies of briefs for

each one of the would be three judges. Notwithstanding these

said facts, District Judge Guy L. Fake took the law into his

own hands and proceeded all by himself and his companion

in conspiracy, H. Collin Minton, Jr., and thus acting alone,

District Judge Guy L. Fake had no power or authority to

dismiss the suit and falsify its record.

The procedure in such eases is prescribed and governed

by the Act of Congress of April 6, 1942, Ch. 210, See. 3, 56

Stat. 199, to wit: United States Code. Supp. IV. 1941-

1945. Title 28 (Judicial Code and Judiciary) See. 729.

EEO SC. OOD SWEAR te COR IBS OY CLEANS RE LOE Ate aes

Reply Brief

Three Judge District Court Action for Interlocutory In-

junction and Final Hearing; Powers of a Single Judge.

“In any action in a distriet court wherein the ae-

tion of three judges is required for the hearing and

determination of an application for interlocutory in-

junction and for the final hearing by reason of the

provisions of section 47, 380, or 880a of this title, or

section 18 of Title 15 and section 44 of title 49, as

amended by section 1 of the Act of April 6, 1942,

chapter 210, any one of such three judges may perform

all functions, conduct all proceedings, except the trial

of such action, and enter all orders required or per-

mitted by the Rules of Civil Procedure for the Dis-

trict Courts of the United States in effect at the time,

provided such single judge shall not * * * dismiss the

action, or enter a summary or final judgment on all

or any part of the action.”’ (April 6, 1942, Ch. 210,

See. 3, 56 Stat. 199.

It follows that District Judge Guy L. Fake dismissed the

equity suit without judicial authority to do so and there-

fore his Opinion in the case is null and void.

6. The respondents in their said brief quote the de-

fects which District Judge Guy L, Fake set forth in his

opinion as being present in the bill in equity or, on the

equity side of the court, but they do not say a word travers-

ing, to-wit:

a. ‘We will see what we can do.’’ Fake, D. J. to H.

Collin Minton, Jr., counsel pro se, Utah Fuel Company,

et al. in answer to his offers to pay to said judge the full

amount involved.

Reply Brief

b. ‘*All these is illegal, watch the lawyers; watch

Wienberger, he might take the case.’? Fake, D. J. to said

Counsel,

ce. The defects, if any, do not justify the court to dis-

miss the suit, for the following reasons;

1. Title 28 U. 8S. C. A. See. 777. Defects of form;

Amendments.

No summons, writ, declaration, return, process, judg-

ment, or other proceedings in civil causes, in any court of

the United States, shall be abated, arrested, quashed, or

reversed for any defect or want of form; but such court

shall proceed and give judgment according as the right

of the cause and matter in law shall appear to it, without

regarding any such defect or want of form; * * * and such

court shall amend every such defect and want of form * * *;

and may at any time permit either of the parties to amend.

(R.S. See. 954.)

Montgomery's Manual of Federal Jurisdiction and Pro-

cedure, 4th Edition, 1942, Sec. 184. Amended and Sup-

plemental Pleadings—Rule 15.—Rule 15 of the Rules of

Civil Procedure deals with the amended and supplemental

Pleadings.

The purpose of the rule is to assure the determination

of controversies in view of their merits, and not with re-

spect to procedural niceties. 14-18, Overfield v, Pennroad

Corporation, (D., Pa. 1941.) 39 F. Supp. 482. * * * (3) The

rules of civil procedure expressly indicate that where leave

of Court is required for an amendment, such ‘leave shall

be freely given when justice so requires’’, Rule 15 (a), 28

U.S. C. A. following Sec, 723c, in the interest of assuring

Reply Brief

the determination of controversies upon the merits and not

upon procedural niceties * * * (11) * * * In the interest of

the expeditious and equitable disposition of causes, amend-

ments which tend to prevent a failure of justice should be

liberally allowed. * * * See also Hughes Fed. Pr.

Rule 15, Amended and Supplemental Pleadings. Sec-

tion 20851, holding: The rule is patterned upon former

Equity Rules 19, 28, 32, 34, and 35, Thus the plaintiff may

amend his complaint as of right without leave at any time

before the answer is served. 5. H. F. Pr. See. 20862, p.

511. Bugeln and Smith v. Standard Brands, 27 F. Supp.

399: ‘*shall be freely given when justice so requires’’, H.

F, Pr. See, 20863, p. 512; Under Rule 15 (a) amendments

are to be liberally allowed. The new rules contemplating

decisions of controversies on the merits rather than dis-

missal thereof on technicalities; and state practice restric-

ting amendments is no longer binding on the Federal Courts.

12. Moore v. Illinois Cent. R. Co,, 24 F. Supp. 731; Downey

v. Palmer, 27 F. Supp. 998 (at page 513.)

Like under the equity practice as above indicated, so

also under Rule 15 (a) leave to amend follows as a general

rule, as a matter of course, on dismissal on motion, es-

pecially in view of the specific mandate ‘leave shall be

freely given when justice so requires.’? 13, Earhard ¢, Val-

erius, 25 FE. Supp. 754.

7. The said respondents point out or, are calling the

Honorable Court’s attention to, the answer which they cor-

ruptively filed but failed to traverse the facts set forth in

Reasons P. Q. R., pages 54-57 of the petition.

8. Where (as in the present case) the bill set forth

matter calling for equitable relief, no matter what its de-

Reply Brief

ficiencies of form, the plaintiff can not be required to amend

in view of Rule 18 (Equity Rule 18) Williams v. Pope, 215

Fed. Rep. 1000.

Wherefore, the petitioner, Nicholas J. Curtis, urges this

Honorable Court:

1. To refuse to consider the respondents’ brief re-

ferred to above to which this reply brief is directed;

2. To grant the Writ of Certiorari in the case;

3. To try the cause now before it and formulate a

just and legal decision to guide the court below in the

final proceedings to be there taken in conformity with the

decision of this Court; and

4+. To make such provisions in its decision dis-

qualifying District Judge Guy L. Fake from proceeding, in

any way, any further in the above captioned cause or

causes,

Very respectfully submitted,

Nicuonas J. Curtis LL. B.,

Petitioner Appearing in Person,

No. 145 North Broad Street,

Trenton, 8, New Jersey,

Dated this 13th day of

July, A. D., 1945.

To: H. Cotuis Miyvon, Jr,

and his co-counsel,

Trenton Trust Bldg.,

Trenton, New Jersey,