# Opposition Brief — W. E. Hedger Transportation Corp. v. Ira S. Bushey & Sons, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0732%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1946 - **Citation:** 329 U.S. 735 ## Text IN THE Supreme Court of the United States Ocroser Term—1946 ae No. 423 W. E. HEDGER TRANSPORTATION CORPORATION, Petitioner, against IRA 8S. BUSHEY & SONS, INC., Respondent. BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI | CuristopHer EK. Heckman, Counsel for Respondent. Se eemeheteetaeieianinenimietainaamameamnaiememmamnmmtaneteeinamietenemed aamamtenanimemmaaamammmmemmamemanmiaimmnate JUDICIAL Priwtine Co., Iwo., 82 BEEKMAN St., N. ¥Y—BAROLAY 7—8648-9 Ft a . ‘Such step would be contrary to the well settled rule of Carey v. Houston & Texas Central RR. Co., 161 U. S. 115, at 130, that an action for the review or correction of a decree or judgment is a ‘‘continuation of the main suit.’’ In Carey v. Houston, supra, this Court said (132): ‘We regard it as not open to argument that the jurisdiction of the circuit court, as a court of the United States, over this suit, rested on the juris. diction of that court over the suit in which the decree of May 4th, 1888, was rendered * * *.’’ The Equity side of the United States District Court for the Eastern District of New York had no jurisdiction over the suit in which the decree of March 8th, 1945, was ren- dered, because that was a decree in an in rem proceeding in Admiralty to foreclose a preferred mortgage. There- fore, it has no jurisdiction over this suit to vacate that decree. Petitioner suggests that the Admiralty Court’s juris- diction ended when the decree of foreclosure was entered and satisfied. This contravenes the basic principle that within certain time limitations not here involved a Court has general power to vacate, change or modify its own decree improperly obtained. If we assume petitioner’s success in proving its asser- tion that this decree was obtained by improper means (which imputes misconduct to three District Judges) (Cf. 37th, 39th, 43rd and 44th allegations, R. 15 and 17) the foreclosure decree should be vacated, but there would still remain for trial and disposition the original suit in rem to foreclose the mortgage. If petitioner offered enough evidence to warrant an accounting there can be no doubt about the Court’s power to require one when necessary to render final judgment in an action over which jurisdic- tion was expressly conferred by statute. As the Circuit Court of Appeals stated in its opinion (R. 52): at : “Clearly a Court of Admiralty at times must state accounts as an incident to the disposition of suits within its cognizance; general average is one instance, salvage is another. In the case at bar tie foreclosure suit was brought under Section 951 of Title 46 U. S. C. and it would be impossible to en- force the statute, if the suit must be halted every time a question of accounting arose as to the amount due upon the mortgage.’’ Petitioner states the case as though its resort to Equity to vacate an Admiralty decree of foreclosure in an in rem proceeding involving a preferred maritime mortgage was proper and as though its case involved only incidental Admiralty matters. It also says (in its brief, pp. 9 and 10) that an accounting must first be had to ascertain whether petitioner owed respondent any money and that to open the Admiralty decree first ‘‘just to have an equitable ac- counting in an Admiralty Court seems to be putting the cart before the horse.’’ It is petitioner who confuses the cart’s location. Until petitioner succeeds in proving that the decree in the Admiralty proceeding was improperly obtained, it stands as an adjudication that there was a balance in favor of respondent. The existence of such decree, the attempt to vacate it and the necessity for vacat- ing it are the very grounds which petitioner must urge as the base of jurisdiction in this action between two corpora- tions of the same state. Certainly a Federal Court has no jurisdiction in a suit for a simple accounting between two citizens of the same State. . POINT Il The dismissal of the cause of action for abuse of process was proper. In Hurn v. Oursler, 289 U. S. 238, the Court clearly stated that if one cause of action be separate and distinct from another in the sense that it is based upon entirely different facts and is outside the Federal jurisdiction, it must be dismissed even though the other cause be within the jurisdiction. Petitioner does not contend that the causes of action are the same. That petitioner’s claim for damage for abuse of process may be cognizable in Admiralty (which we do not concede) where jurisdiction depends on the maritime character of the transaction does not mean it is cognizable on the Law or Equity side where diversity or a Federal question is a prerequisite to jurisdiction. CONCLUSION The petition should be denied. Respectfully submitted, CurisToPpHER KE. HeckMan, Counsel for Respondent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0732%3A2. Public record. Not legal advice.