Opposition Brief — Seven Up Co. v. Cheer Up Sales Co.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1945.

no. 12 ri

THE SEVEN UP COMPANY,

Petitioner,

VS.

CHEER UP SALES COMPANY OF ST. LOUIS, MISSOURI,

a Corporation; AMERICAN SODA WATER COM-

PANY, a Corporation, and ORANGE SMILE

SIRUP COMPANY, a Corporation,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

‘OLIVER T. REMMERS,

1730 Boatmen’s Bank Building,

St. Louis 2, Missouri,

Counsel for Respondents.

DOUGLAS B. REMMERS,

Of Counsel.

Sr. Louis Law Patntine Co., 415 North Eighth Street. CE ntral 4477.

Weat apie. Be Gate ng. . <5 ncaa knee tn anbecth Gees

BRITE oso ss nnsnkbhy ahviagd ach cddehbhatedadissh de 3

I. General rule applicable to petitions for leave to

Bed D GE GE WOU scbdaccvceccbbadiSedsicaes 3

II. Petition for leave to file a bill of review is ad-

dressed to the sound discretion of the Court..... 5

III. Case of Egry Register Co. v. Standard Register

Oy ey ne re ee 6

IV. The uniform line of decisions hold that where a

trade name is not deceptive and the manufacturer

has no part in the substitution, then the manu-

facturer or distributor is not responsible for the

ek I PP ere te ee 7

V. Comment on petitioner’s statement............. 8

VI. A review of the cases relied upon and cited by

OCI sain ca sche dente sb onecekebantaeess 13

Cases Cited.

American Photographie Publishing Co. v. Ziff-Davis

Publishing Co., 135 F. (2) 569 (C. C. A. 7)........ 2,7

Atchison, T. & S. F. Ry. v. U. S., 106 F. (2) 899...... 6, 11

Bresnahan et al. v. Tripp Giant Leveller Co., 99 Fed.,

@ BS Cee GA Gh. Bai cas ch seen ck cs etude: 5

Carson v. American Smelting & Refining Co., 11 F. (2)

es 8 ae eS MTT Terr

Egry Register Co. v. Standard Register Co., 1 F. (2)

Ey MM Aa Rana hidhicdensnccetecenthbbeahawagen 2, 3, 6, 13

Hazel Atlas Glass Co. v. Hartford Empire Co., 322

ee reer 12, 14

Irvin v. Buick Motor Co., 88 F. (2) 947 (C. C. A. 8),

cert. denied 81 L. ed. 1357................... 2, 6, 11, 13

Kellog v. National Biscuit Co., 305 U. S., 1. e. 120-

Me ii eka bw yk dweds Ca tenkat kad’ 2,7

Kissinger-Ison Co. v. Bradford Belting Co., 123 F.

i Le heh ctu aWes és os nese bs bReEEE 2

Layne & Bowler Corporation v. Western Well Works,

261 U.S., 1. c. 392-393, 67 L. ed. 714.......... set 3,4

National Brake v. Christensen, 254 U. S. 425, 1. ec. 430,

Oe es OU, Bg OMe oc en ccetesaateveedeticas 2, 5, 6, 10, 15

Nu Grape Co. v. Glazier, 22 F. (2) 596 (C. C. A. 5).... 2,7

Obear-Nester Glass Co. v. Hartford Empire Glass Co.,

ew, EE oe ae | ee eee 6, 10, 11, 12

Pittsburgh Forgings Co. v. American Foundry Equip-

en a Ee BID EI odd o dn ab Naene eee 0st 6,7

Raffold Process Corp. v. Castanea Paper Co., 105 F.

i RP Pee VOPR red Perr d er eee COV dee See 6, 138

Rathbone, Sard & Co. v. Champion Steel Range Co.,

ee AEE Ee Mi Rc ck ce ebadvaacscesdesaveseate * |

Sir Peter Coats et al. v. Merrick Thread Co. et al.

ee & ee Se SPOPPeTTT TIT Tee 27

Southern Pacific R. Co. v. U. S., 168 U. S., at page 65,

A ee Vann b hese enconcsvanenss 4,5

Stark v. Starr, 94 U. S. 477-485, 24 L. ed. 276-278... .4, 14

Suhor v. Gooch, 248 F. 870, 871 (C. C. A. 4), cert.

Se Ge ek, Ge Baik a 48 5 ees ee wKsae sis cane 2,5, 13

The Providence Rubber Co. v. Charles Goodyear, 9

PE Es BP i Gis UIs on ance scccncisacccsncess 2,9, 15

Toledo Seale Company v. Computing Scale Co., 261

U. S. 399, 1. c. 425, 67 L. ed. 719, 1. c. 730........ 3, 5, 14

U. S. v. William R. Johnson, Feb. 2, 1946, 90 L. ed.,

BSS 6666 68 664806808806 64560856806658006858858658990686

| aeseaaeaey

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1945,

No. 1271.

THE SEVEN UP COMPANY,

Petitioner,

VS.

CHEER UP SALES COMPANY OF ST. LOUIS, MISSOURI,

a Corporation; AMERICAN SODA WATER COM-

PANY, a Corporation, and ORANGE SMILE

SIRUP COMPANY, a Corporation,

Respondents,

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

This is the second attempt of the petitioner to have this

court review this case.

WRIT SHOULD BE DENIED.

I.

There is no conflict in the decisions of the other Circuit

Courts of Appeals with that of the Eighth Circuit. The

difference is that of expression and not of substance. Peti-

tion does not comply with Rule 38 of this Court.

II.

The law is established by a long line of decisions that a

petition for leave to file a bill of review is not a matter of

right, but is addressed to the sound judicial discretion of

Ee ete

the appellate court and should be decided upon considera-

tions addressed to the materiality of the new matter and

diligence in its presentation.

The Providence Rubber Co. v. Charles Goodyear, 9

Wali 805, 19 L. ed. 828;

National Brake v. Christensen, 254 U. S. 425, 1. ¢.

430, 65 L. ed. 341, 343;

Kissinger-Ison Co. v. Bradford Belting Co., 123 F.

91, 92 (C. C. A. 6);

Suhor v. Gooch, 248 F. 870, 871 (C. C. A. 4), cert.

denied 62 L. ed. 1245;

Irvin v. Buick Motor Co., 88 F. (2) 947 (C. C. A. 8),

cert. denied 81 L. ed. 1357.

Il.

Petitioner relies upon its assertion (p. 7 of Pet. brief)

that the Eighth Circuit in this case (153 F. [2] 231), is in

conflict with the Sixth Circuit’s decision in Egry Regis-

ter Co. v. Standard Register Co., 1 F. (2) 11,12. But that

case is not in point and besides the Sixth Circuit Court of

Appeals affirmed the District Court’s dismissal of the bill

of review.

IV.

The decisions uniformly hold that where a trade name is

not deceptive and the manufacturer has no part in the

substitution, then the manufacturer is not responsible for

the acts of retailers.

Sir Peter Coats et al. v. Merrick Thread Co. et al.,

149 U. S. 562, 37 L. ed. 847;

Kellog v. National Biscuit Co., 305 U. S., 1. e. 120-

121, 83 L. ed. 79;

Rathbone, Sard & Co. v. Champion Steel Range Co.,

189 F. 26 (C. C. A. 6);

Nu Grape Co. v. Glazier, 22 F. (2) 596 (C. C. A. 5);

American Photographic Publishing Co. v. Ziff-Davis

Publishing Co., 135 F. (2) 569 (C. C. A. 7).

—

ARGUMENT.

I

Mr. Chief Justice Taft, in speaking of the general rule

applicable to petitions for leave to file a bill of review, in

the case of Toledo Scale Company v. Computing Scale Co.,

261 U. S. 399, 1. ¢. 425, 67 L. ed. 719, 1. c. 730, quoted with

approval the observation of Mr. Justice Story in Ocean

Ins. Co. v. Fields, 2 Story 59, Fed. Cas. 10406:

‘It is for the public interest and policy to make an

end to litigation; but, as was pointedly stated by a

great jurist, that suits may not be immortal while

men are mortal.’’

That remark is apropos here. The original case here

was tried at great length in the District Court. Judge

George H. Moore, on June 29, 1944, dismissed plaintiff’s

bill. That was affirmed on April 26, 1945, by the Circuit

Court of Appeals (8th Circuit), 148 F. (2) 909. There-

after, motion for rehearing was denied. Petition for cer-

tiorari was denied by this Court on October 8, 1945, 90 L.

ed. 28. In November, 1945, plaintiff filed its petition for

leave to file a bill of review. On February 4, 1946, the

Circuit Court of Appeals (8th Circuit) denied the petition,

153 F. (2) 231 (R. pp. 73-78). Motion for rehearing was

denied. Now, for the second time, plaintiff is before this

court seeking permission to retry this case after it is Res

Judicata.

The pretext used by petitioner in an effort to reopen the

case was so flimsy that the 8th Circuit Court of Appeals

would have found the same result had it used the obiter

dictum of the 6th Circuit quoted by petitioner from Egry

Register Co. v. Standard Register Co., 1 F. (2) 11, 12.

This Court in a patent case, Layne & Bowler Corporation

v. Western Well Works, 261 U. S., 1. c. 392-393, 67 L. ed.

714, where a writ of certiorari was improvidently granted,

said:

‘“‘It is manifest from this review of the conclusions

in the two circuits as to the validity of the Layne

patent and the proper construction to be put upon the

9th, 13th and 20th claims, that they were really in

harmony, and not in conflict, and that there was no

ground for our allowing the writ of certiorari to add

to an already burdened docket. If it be suggested

that as much effort and time as we have given to the

consideration of the alleged conflict would have en-

abled us to dispose of the case before us on the merits,

the answer is that it is very important that we be con-

sistent in not granting the writ of certiorari except in

cases involving principles the settlement of which is

of importance to the public as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority be-

tween the circuit courts of appeals. The present case

certainly comes under neither head.’’

Neither does this case.

With equal force it may be said here that to allow a

party to come into court again and again after decision,

with a claim of newly discovered evidence would offend

the doctrine so forcibly expressed by Mr. Justice Field in

Stark v. Starr, 94 U. S. 477-485, 24 L. ed. 276-278, where

it was said:

‘It is undoubtedly a settled principle that a party

seeking to enforce a claim, legal or equitable, must

present to the court, either by the pleadings or proofs,

or both, all the grounds upon which he expects a judg-

ment in his favor. He is not at liberty to split up his

demand and prosecute it by piecemeal, or present only

a portion of the grounds upon which special relief is

sought, and leave the rest to be presented in a second

suit if the first fail. There would be no end to litiga-

tion if such a practice were permissible.’’

The above quotation and a citation from Southern Pa-

cific R. Co. v. U. S., 168 U. S., at page 65, 18 S. Ct. 18, 42

—5—

L. ed. 355, are found in Bresnahan et al. v. Tripp Giant

Leveller Co., 99 Fed., 1. c. 283-284 (Ist C. C. A.).

In concluding its thought on the subject the First Cir-

cuit, at page 285, made the observation that—

‘‘The decisions (and there are many) all go at least

to the extent of saying that the new evidence, to war-

rant it, must be so cogent and persuasive as to im-

press the court with the conviction that, if it had been

presented and considered on the original hearing, it

would have clearly produced a contrary conclusion

from the end there reached.’’

II.

The petition for leave to file a bill of review is like a

motion for new trial. Suhor v. Gooch, 248 F. 870, 871 (4

C. C. A.), cert. denied 62 L. ed. 1245. It is addressed to

the sound discretion of the court.

Toledo Scale Co. v. Computing Scale Co., 261 U. S.,

l. ec. 420, 67 L. ed., 1. ¢. 728;

National Brake & Electric Co. v. Christensen, 254

U. S. 425, 65 L. ed. 341, 343.

Thus, it was recently held by this Court in U. 8. v. Wil-

liam R. Johnson, Feb. 2, 1946, 90 L. ed., 1. c. 391, in a case

where a litigant sought a new trial charging perjury of a

witness. The district court overruled the motion for a

new trial. The Circuit Court of Appeals reversed and

this Court reversed the Circuit Court of Appeals, saying:

‘but it is not the province of this court or the Circuit

Court of Appeals to review orders granted or deny-

ing motions for a new trial when such review is sought

on the alleged ground that the trial court made erro-

neous findings of fact (citing cases). While the Ap-

pellate Court might intervene when the findings of

fact are wholly unsupported by evidence (citing cases)

it should never do so where it does not clearly appear

that the findings are not supported by any evidence.”’

Se

oe oe

This is stronger language than used by the 8th Cirenit

Court of Appeals in this case.

This Court in National Brake v. Christensen, 254 U. S.

425-430, 65 L. ed., at page 343, after citing a number of

cases, again said that such applications are addressed

to the sound discretion of the appellate tribunal and should

be decided upon considerations addressed to the materi-

ality of the new matter and diligence in its presentation.

This is the rule formerly, as well as presently, stated by

the Eighth Circuit.

Atchison, T. & S. F. Ry. v. U. S., 106 F. (2) 899;

Irvin v. Buick Motor Co., 88 F. (2) 947, Cert. and

rehearing denied 81 L. ed. 1357;

Obear Nester Glass Co. v. Hartford Empire Co.,

61 F. (2) 31.

III.

An examination of Egry Register Co. v. Standard Reg-

ister Co., 1 F. (2) 11, 12 (6th C. C. A.), upon which case

petitioner relies so heavily, reveals that the phrase ‘‘The

rule is that, whenever the right to file a bill is at all

doubtful, leave is granted as a matter of course’’ is at

best Obiter Dictum. The language had no relation or any

application to the issue before the court. It had no

connection, even remotely, with the decision. The Sixth

Circuit affirmed the District Court’s dismissal of the bill

of review. Upon reading the whole paragraph, the sen-

tence appears to be an interpolation carelessly thrown in

where it had no place and a matter of no importance.

It may aptly be said that in emphasizing that case peti-

tioner is attempting to make a mountain out of a mole hill.

As to the decisions of the Third Circuit, to which peti-

tioner alludes, it is to be noted that in Raffold Process

Corp. v. Castanea Paper Co., 105 F. (2) 126, the Court

denied petitioner leave to file bill of review. In Pittsburgh

—————ay

tiie:

Forgings Co. v. American Foundry Equipment Co., 119 F.

(2) 619, the Court does not favor us with any statement

of facts upon which its utterance may be predicated.

IV.

The uniform line of decisions hold that where a trade

name is not deceptive and the manufacturer has no part

in the substitution, then the manufacturer or distributor

is not responsible for the acts of retailers.

Sir Peter Coats, et al. v. Merrick Thread Co. et al.,

149 U. S. 562, 37 L. ed. 847;

Kellog National Biscuit Co., 305 U. S., 1. e. 120-121,

83 L. ed. 79;

Rathbone, Sard & Co. v. Champion Steel Range Co.,

189 F. 26 (C. C. A. 6);

Nu Grape Co. v. Glazier, 22 F. (2) 596 (C. C. A. 5);

American Photographic Publishing Co. v. Ziff-Davis

Publishing Co., 135 F. (2) 569 (C. C. A. 7).

The real respondent in this case from its inception was

and is the Orange Smile Sirup Co. It is the manufacturer

of the Cheer Up extract used by bottlers to make the

finished product. It is the owner of the Cheer Up trade

name. The, other respondents are nominal and only inci-

dental to the issue.

Nowhere in petitioner’s affidavits was the Orange Smile

Sirup Co. charged with substitution or having knowledge

thereof, directly or indirectly acquired, of any retailer,

as alleged, substituting Cheer Up for 7 up.

No charge was made in the affidavits that any Cheer Up

bottler substituted, or had knowledge of any substitutions

by retailers. The respondent Orange Smile Sirup Co. sells

only to franchise bottlers. The bottlers sell to retailers.

Therefore, the alleged substitutions were to have been

committed by retailers who were twice removed from the

respondent Orange Smile Sirup Co.

eT

a

V. .

Comment On Petitioner’s Statement.

Petitioner, on page 4 of his brief, states that the Eighth

Circuit Court of Appeals, in the original case, 148 F. (2)

909, in affirming the dismissal of the complaint by the

District Court, ‘‘commented with some repetition upon the

absence of evidence of palming off and confusion and drew

inferences from the absence of evidence on the point.’

No such inference can be drawn when the whole opinion

is read. Petitioner omitted reference to the following

language, at page 912 of the opinion:

‘*When we compare the appearance of the marks,

we see no deceptive similarity, and the pronunciation

is unlike. We are impressed, the contrast is more

striking than the similarity.’’

and at page 913:

‘‘The difference in appearance between the com-

peting packages is sufficiently distinctive to identify

each of them and to avoid any reasonable probability

of confusion. This is all the law requires. The defend-

ants are not required in equity, to insure plaintiff

against confusion by careless purchasers.”’

Petitioner also ignores the conclusions of the court at

pages 912 and 913:

‘*We cannot see probability of confusion or decep-

tion resulting from the concurrent marketing of the

two packages in the same territory.’’

Petitioner makes the bald statement (brief p. 5):

‘‘The investigation covered several cities in several

states. The results were amazing; approximately one-

half of respondents’ dealers who were sampled, deliv-

ered or served defendant’s ‘Cheer Up’ without ex-

planation when ‘7 up’ was ordered.’’

| saat

a

First, the word ‘‘dealers’’ is too broad. It implies a

relationship with the real respondent. There is no contact

or relationship with that respondent and the retailers.

Next, not one of the investigators, nor one of the 7 up

salesmen, was in the slightest manner confused or mis-

led. Each one, in fact, sought to get a product other than

7 up. The 7 up employees (R. 28, 29) studiously and with

foreknowledge went to places that did not have 7 up and

then asked for it (Affidavits, R. 68-72).

Petitioner complains (brief pp. 5-6) of the findings of

the Circuit Court of Appeals (R. 73 et seq.) to the effect

that ‘‘the exercise of reasonable diligence would have

suggested an investigation of facts prior to the trial.’’

However, the Circuit Court of Appeals promptly said—

‘‘but, had the evidence now available been discovered

and offered upon the trial, it would not have affected

the result.’’

To this last statement of the court, petitioner also

objects on the grounds it is a usurpation of the jurisdic-

tion of the District Court. But, that statement of the court

is amply supported by the decisions of this Court and the

Cireuit Courts of Appeals.

Providence Rubber Co. v. Goodyear, 9 Wall. 805,

19 L. ed. 828;

Carson v. American Smelting & Refining Co., 11

F. (2) 766, 771 (C. C. A. 9).

Petitioner also dislikes the Eighth Circuit’s expression

that:

‘‘The professional investigators employed by the

petitioner * * * were not deceived.’’

That was an irrefutable observation. On the face of the

purported investigation, the investigators could not have

been deceived.

— ‘oe

Likewise, petitioner dislikes the court’s statement ‘‘their

reports are disputed’’. Of course they were disputed by

respondent because the affidavits offered by complainant

were incorrect and in some instances false. Petitioner was

misled by its own investigators. ‘‘Professional detectives

have, to some extent, prepared complainant’s case;

they do not always limit their labors to a mere discovery

of the actual facts, but, not infrequently, attempt to make

a case.’’ Moore on Facts, Vol. 2, page 1167, citing cases.

The so-called investigations in many instances were

made in retail establishments which petitioner knew in

advance did not carry 7 up (R. 69).

The Atlantic City bottler of Cheer Up (R. 67) never

used the 7 oz. bottle, upon which plaintiff claimed in-

fringement, but only sold Cheer Up in 24 or 32 oz. bottles.

The Erie, Pa., Cheer Up bottler (R. 67), because of the

sugar shortage had not bottled Cheer Up in 7 oz. bottles

since June 15, 1945 and only used the large 24 oz. bottles.

Plaintiff’s investigation was made in Erie on September 12,

at a time when Cheer Up in 7 oz. bottles could not be had

in Erie. In two instances where substitution was alleged,

the retailers never at any time handled Cheer Up. This

was orally reported to the Circuit Court of Appeals during

argument as the affidavits came in too late for printing.

Certainly the Cireuit Court of Appeals does not consider

such petition and affidavits ex-parte and then gullibly

believe what had been submitted. This Court and the Cir-

cuit Courts of Appeals have uniformly held that the con-

sideration and action upon a petition for leave to file a bill

of review is addressed to the sound discretion of the ap-

pellate tribunal.

National Brake & Electric Co. v. Christensen, 254

U. S. 425, 41 S. Ct. 154, 156, 65 L. ed. 341;

Obear-Nester Glass Co. v. Hartford Empire Glass

Co., 61 F. (2) 31, 34 (C. C. A. 8).

a.

—

In 150 A. L. R. 676, we find that:

‘“‘The function of a bill of review is the prevention

of a miscarriage of justice; and the bill will be allowed

only in furtherance of that object and with caution.

In other words, the power of a court to allow a bill

of review is to be exercised cautiously and sparingly

and only under circumstances demonstrated to be in-

dispensable to the merits and justice of the cause.

Leave to file will not be granted where the court is

satisfied that upon the case offered to be made out the

decree ought to be the same as has already been given.

19 Am. Jur., Equity, p. 292, sec. 425; p. 294, sec. 428;

and p. 301, see. 439°’.

Petitioner claims (pages 1, 12, 13 of its brief) that the

Kighth Circuit in this case has departed from its ‘‘rea-

sonable probability rule,’’ which rule petitioner says (pp.

13 and 14) was stated in

Irvin v. Buick Motor Co., 88 F. (2) 947, 951, Cert.

denied 81 L. ed. 1357;

Obear-Nester Glass Co. v. Hartford Empire Glass

Co., 61 F. (2) 31, 34;

Atchison, T. & S. F. v. U. S., 106 F. (2) 899, 902.

Petitioner in an effort to support its statement of the

Eighth Cireuit’s departure from the ‘‘reasonable proba-

bility rule’? has characteristically lifted one sentence in

the 7 up v. Cheer Up decision, 153 F. (2) 232 (R. 76),

to-wit:

‘The allowance by an appellate court of a petition

for permission to file a bill of review in the trial

court is addressed to the sound judicial discretion of

the court and should be exercised cautiously and

sparingly and only in cases where it is clearly demon-

strated that the interests of justice will undoubtedly

be served thereby.”’

- sa

=

Again neglecting the paragraph preceding the above quo-

tation wherein the court said:

‘The rules controlling our decision are not in any

serious dispute. The law has been reviewed by this

court in three comparatively recent decisions: Obear-

Nester Glass Co. v. Hartford Empire Co., 8 Cir., 61

F. (2) 31; Hagerott v. Adams, 8 Cir., 61 F. (2) 35, cer-

tiorari denied 288 U. S. 599, 53 S. Ct., 317, 77 L. ed.

975; and Hagerott v. Adams, 8 Cir., 70 F. (2) 352.

In so far as material these cases and authorities cited

and relied upon therein hold that,’’ ete.

The court then continued with its opinion, thus showing

that the rule in the above cited cases was adopted in the

present case.

The words used in 7 up v. Cheer Up and those in Obear-

Nester Glass Co. v. Hartford Empire Co. are almost iden-

tical. The court in the Obear-Nester case in referring to

a bill of review, p. 34, said:

‘‘Tts allowance rests in a sound judicial discretion

to be exercised cautiously and sparingly in cases

where it is clearly demonstrated that the interests of

justice will undoubtedly be served thereby (citing U.

S. Supreme Court cases).’’

The same language in the 7 up v. Cheer Up case is

quoted by petitioner (brief p. 2) in an effort to show that

in that case the 8th Circuit departed from what petitioner

refers to as the ‘‘reasonable probability rule’’, after ad-

mitting that the 8th Circuit in the Obear-Nestor case fol-

lowed the ‘‘reasonable probability rule’’ (brief p. 14).

Hazel Atlas Glass Co. v. Hartford Empire Co., 322

U. S. 238, is liberally cited in the footnotes and elsewhere

in petitioner’s brief (pp. 2, 3, 6, 7, 11, 13) in an effort to

support petitioner’s various statements. That case in-

volved fraud upon the Court in a patent case. It is not

a. ;

— ae

helpful to either petitioner or respondent. Baseball scores

would be just as enlightening for they have no more rela-

tion to the issue here than the Hazel Atlas case.

Respondent cannot quite fathom the purpose of peti-

tioner, or the inference intended by its reference to re-

spondent’s counsel on pages 4 and 5 of petitioner’s brief.

Counsel ‘‘admitted’’ nothing in his oral argument. He

‘‘asserted’’ that when the Circuit Court of Appeals handed

down its opinion in the original case, 148 F. (2) 909, he

prepared for respondent a circumspect and abstract state-

ment of the court’s decision. This was mailed to respond-

ant’s bottlers. This is as it should he. They had a vital

interest in the case. Why the petitioner started its pur-

ported investigation within a few days after the decision

is not clear. Certainly it had nothing to do with respond-

ent’s letters to its bottlers for they had not yet gone out.

In all events, petitioner’s statement is unwarranted. It

is possibly a sly effort at innuendo.

VI.

A Review of the Cases Relied Upon and Cited by

Petitioner.

An examination of the eases cited by petitioner reveals

that certiorari was denied in these cases:

Irvin v. Buick Motor Co., 88 F. (2) 947 (C. C. A. 8),

cert. denied 81 L. ed. 1357;

Suhor v. Gooch, 248 F. 870 (C. C. A. 4), cert. denied

62 L. ed. 1245.

The Third Circuit in Raffold Process Co. v. Castanea

Paper Co., 105 F. (2) 619, relied on by petitioner, notwith-

standing the language used, denied leave to file the bill of

review.

In the case of Egry Register Co. v. Standard Register

Co., 1 F. (2) 11, the 6th Circuit affirmed the dismissal of

the bill of review by the District Court.

=

Petitioner attempts to find an admission by this court

in the majority opinion in Hagel Atlas Glass Co. v. Hart-

ford Empire Co., 322 U. S. 238, 1. c. 248, 88 L. ed. 1250, as

to lack of uniformity in the Circuits. Such deduction can-

not be made out of the Court’s language. Petitioner then

quotes from Mr. Justice Roberts dissent. However, Mr.

Justice Roberts also said, 1. c. 1264:

‘‘On the strongest grounds of public policy, bills of

review are disfavored, since to facilitate them would

tend to encourage fraudulent practices, resort to per-

jury, and the building of fictitious reasons for setting

aside judgments.’’

Should petitioner’s idea prevail (and it is contrary to

the established rule of law), then, any losing party having

pursued his case unsuccessfully to the Supreme Court has

the right to start all over again. All he has to do is te

file a petition for leave to file a bill of review, supported

by flimsy affidavits, and then, under petitioner’s theory,

the Circuit Court of Appeals is required to grant the peti-

tion so that he will have the right (brief p. 13) ‘‘to sum-

mon, examine and cross-examine witnesses, * * *.’’ The

ease is then back in the District Court. Should the Dis-

trict Court be unimpressed with the new or revamped

testimony an appeal is again taken to the Circuit Court of

Appeals. Should the Circuit Court of Appeals again affirm

then again the party would come to this court with a peti-

tion for writ of certiorari. Ad infinitum. By this process

a wealthy litigant can use the courts to bring one not so

financially situated to the point of exhaustion.

This court’s words in Toledo Scale Co. v. Computing

Scale Co. (page 3 of this brief) and Stark v. Starr (page

4 of this brief) are a complete answer to petitioner’s

fallacious theory.

The 8th Circuit looked to the substance and having the

undisputed discretionary power under the decisions by this

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court, as well as by the circuits, regardless of the language,

did reach the right answer under the prevailing rulings.

National Brake v. Christensen, 254 U. S. 425, 65 L. ed. 341,

and in Providence Rubber Co. v. Charles Goodyear, 9 Wall.

805, 19 L. ed. 828, where the cases were reviewed back to

Story.

The Eighth Circuit in this case has followed, as it

should, the rulings of this Court. The petitioner does not

submit to this Court any matter of substance, but presump-

tuously asks the court to grant certiorari for the sole pur-

pose of deciding the figurative difference, if any, between

‘“‘Tweedle Dee’’ and ‘‘Tweedle Dum.” _

Respondent respectfully submits that the petition for

writ of certiorari should be denied.

Respectfully submitted,

OLIVER T. REMMERS,

1730 Boatmen’s Bank Bldg.,

St. Louis 2, Mo.,

Counsel for Respondents.

DOUGLAS B. REMMERS,

Of Counsel.