# Reply Brief — Curtis v. Utah Fuel Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0189%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1945 - **Citation:** 326 U.S. 724 ## Text 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, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0189%3A7. Public record. Not legal advice.