Petition for Writ of Certiorari — Thomson v. Thomson

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/9Q- NOV 9 1986

CMAN KLWORE crapury

Supreme Court ofthe

United States {7 7ZP iia

FREEMAN J. THOMSON, ADMINISTRATOR OF

THE ESTATE OF ARTHUR W. THOMSON,

DECEASED, PETITIONER,

VS.

CAROLINE THOMSON, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

Harvey E. Hartz,

\ Marti J. O’DonneLt,

Attorneys for Petitioner.

INDEX

SuBJEcT INDEx

Petition for Writ of Certiorari..... = s—S 1

Summary and Short Statement of the Matter Involved 1

Statement As to Jurisdiction. TERETE IE | 7

Questions Presented... io!

Reasons Relied On for the Penne of the 1 Writ... 12

TABLE OF CasEs CITED

Bank vs. Hall, 101 U. S. 43 —

Berger vs. Smith, 32 F. 2d 423, Certiorari Denied 280

a OR ES ON WS RS BLE ON Ee elbcesintens 9,12

Blease vs. Garlington, 92 U.S.1.000.000 = ss— 13

Coftery vs. John Hancock Mutual Life Insurance Com-

pany, 27 Fed. 25, 1. c. 28... . 16

De Sollar vs. Hanscome, 158 U. S. 216... 9,14

Dunavant vs. Mountain States Life Insurance Com-

NG ie i TE Weta ticsacoinceeshinnndantaseions ase

Equitable Lite Ins. Co. vs. ee 83 Fed. 638 wa

C. A. 8)-. peandiislalas anase

Erie Railroad | Co. vs. Tesebilne 2. | ei 9, 14

Grigsby vs. Russell, 222 U.S. 149... 9

9, 14, 16

Paper Dentintie Co. vs. " Life isis Co., 204 Mo.

App. 527_. oem) . 9,14

Red River Cattle Company o of ie vs. Alfred a Sully,

144 U. S. 209_. siueiplennetidiod usec: 9, 12

Russell vs. fees: 4 Otto 606

ll INDEX

TEXTBOOK

4C. J., Sec, 1724 osaaeat ae

STATUTES

28 U. S. C. A., Sec. 347 7 8

28 U.S. C. A., Title 28-See-225- 17

mn Pes wont

ences: ae cacao,

eS

Supreme Court of the

United States

OCTOBER TERM, 1946.

No.

FREEMAN J. THOMSON, ADMINISTRATOR OF

THE ESTATE OF ARTHUR W. THOMSON,

DECEASED, PETITIONER,

VS.

CAROLINE THOMSON, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE ©

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

SUMMARY AND SHORT STATEMENT OF THE

MATTER INVOLVED.

A.

The United States Circuit Court of Appeals for the

Eighth Circuit reversed a judgment of the United States

District Court at Kansas City in favor of Petitioner in

2

an interpleader proceeding against the parties hereto

instituted by John Hancock Mutual Life Insurance

Company.

Caroline Thomson and Arthur Thomson were married

on July 17, 1930 (22). About June 15, 1938, the district

manager of said Insurance Company called at their home,

interviewed both. He called their attention to various

types of life insurance contracts (65), Mr. and Mrs.

Thomson participating in the discussion.

Mr. Niman, as a witness for Mrs. Thomson, testified

that: “During the course of the interview they decided

to buy the contract.” During the interview the district

manager asked a question contained in the application for

insurance:

“Do you want to reserve the right to change the

beneficiary?”

and the answer given was

“eee (7).

The district manager, wrote into the application the

answer ‘‘Yes” (71).

When the policy was issued, it was issued with that

provision in it (71). The insurance company promised

that on the death of the insured, subject to the conditions

and provisions thereof, and while it was in force, it would

pay the sum of $20,000 to

“Caroline Thomson, wife, if living, or to such

other beneficiary as may be finally substituted under

the conditions hereof or if no such beneficiary be then

living then to the executors or administrators of the in-

sured.”

The policy also provided:

“Change of Beneficiary. If the right has been

reserved, the Insured, unless there be an existing

alee Pa eres cases ai

—

3

assignment of this policy, may change the beneficiary

from time to time by written request upon the blanks

of the Company filed at its Home Office, but such

change shall take effect only upon endorsement

hereon.”

On February 12, 1940, the following’ endorsements

were made on said policy:

“This certifies that on February 3, 1940, The

Estate of the Insured was nominated as revocable

beneficiary under this Policy, subject to all its pro-

visions, and subject also to any existing pledge or

assignment thereof. ;

John Hancock Mutual Life Insurance Company,

By Charles J. Diman,

Secretary.

Dated at Boston, Mass. February 12, 1940.”

Stamped across the above endorsement “SEE SUB-

SEQUENT ENDORSEMENT.”

“The Assignor by an absolute assignment dated

Feb. 5, 1940, revokes any nomination of beneficiary

heretofore made and any method of optional settle-

ment heretofore elected under this policy.

John Hancock Mutual Life Insurance Company,

By Charles J. Diman,

Secretary.

Dated at Boston, Mass. Feb. 12, 1940.”

The policy contained the following recital:

This policy and the applica-

“Policy and Application tion therefor constitute the

the Entire Contract entire contract between the

parties * * *

dated at Boston, Massachusetts, this Fifteenth day of

JUNE, 1938. * * *.”

—<

The district manager further testified that Arthur

Thomson, the deceased husband, stated that he wanted

his wife named as beneficiary so that she could be paid

for services rendered in connection with his business,

and that this statement was made during the interview

in which Arthur Thomson, in his wife’s presence, in-

formed the district manager that he desired to reserve

the right to change the beneficiary.

Mrs. Thomson, was herself a party to the insurance

contract and bound by its provisions, and especially by the

provision reserving the right to Mr. Thomson to change

the beneficiary. The district manager for the insurance

company, Niman, testified to facts showing that both

Mr. and Mrs. Thomson were parties to the insurance

contract and bound by all of its provisions and that she

consented to the inclusion of the reservation of the right

in the policy reserving the right to Mr. Thomson to

change the beneficiary.

4

UD ON

Mrs. Thomson was also present when the policy was

delivered by the district manager (67), for the insurance

company, who also testified that the contract was actually

made with both Mr. and Mrs. Thomson, as follows (65):

“A. The agent had made an appointment for me

to call on Mr. and Mrs. Thomson. I called upon them

at their apartment at the Berkshire Hotel and dis-

cussed with them various types of contracts, and

the merits of the contracts, and so forth, and Mr.

Thomson decided that he was interested in the twenty

year endowment contract and he discussed the twenty

year endowment contract with his wife, who was

present at the time, and between them they decided

that that is the type of a contract they were going to

buy if they bought, and during the course of the in-

terview they decided to buy the contract, * * *” (65).

_—

5

Mr. Thomson, according to the district manager,

called on him about February 3, 1940, to make arrange-

ments for a loan and to use the policy as security. The

district manager then told deceased that his wife must

consent. The husband, according to the district man-

ager, suggested that he did not want her to know any-

thing of the matter, and thereupon the district manager

advised deceased that he must change the beneficiary,

and name his estate as beneficiary, thereby revoking the

nomination of his wife as beneficiary (70) on the forms

provided by the Insurance Company.

In accordance with these suggestions the change of

beneficiary was made. The policy was assigned to the

Mercantile Bank as security for a loan.

On June 26, 1944, marital differences having arisen

between them (129, 74), the Thomsons went to the office

of an attorney in Illinois and employed him to file a di-

vorce action and prepare a property settlement. The

property settlement contract contained the following (15):

“That the parties hereto hereby agree that each

of them is hereby wholly and forever barred of and

from all rights, claims and demands in and to the

property of each other, real, personal or mixed, where-

soever situated, and whether now possessed by the

said parties or hereafter acquired by them, including

the rights of dower and homestead.”

A decree of divorce was granted on August 1, 1944,

the decree embodying the terms of the property settle-

ment, which decree contained the following recital (17):

“* * * and that said parties be and each of them

- is hereby wholly and forever barred from all right,

claim or demand in and to the property of each other,

real, personal or mixed, wheresoever situated, * * *.”

—_—

on

|

6

Petitioner’s interplea relied on said property settle-

ment and said decree of divorce adjudicating the parties’

property rights as res judicata (14-17).

Mr. Thomson thereafter died on December 4, 1944,

while indebted to the Bank for the sum of $5,746.84.

On May 2, 1945, the Insurance Company filed its

interpleader petition in the United States District Court

for the Western District of Missouri at Kansas City.

On May 21, 1945, petitioner filed his answer and

interplea (7-17). Caroline Thomson, on August 13, 1945,

filed her first amended answer and interplea (18-20). On

September 26, 1945, petitioner filed his reply (20).

The cause was tried before the Hon. Albert A. Ridge,

District Judge, on October 24, 1945, and on November 15,

1945, the court rendered a decree sustaining the inter-

pleaders complaint and later finding the issues for peti-

tioner, made findings of fact (22-24) and conclusions of

law (24-26), and on December 15, 1945, rendered judg-

ment in favor of petitioner for the balance due on the

Policy, $14,951.50.

At the trial petitioner’s counsel stated (35):

“Mr. Hartz: Then if your Honor please, this

policy is, I presume, in evidence, it is part of the peti-

tion and will be considered in evidence.

The Court: It will be so considered.”

The following recital is found on page 120 of the record:

“It is hereby stipulated and agreed that the fore-

going is a full, true and complete transcript of the

record and proceedings in the cause of John Hancock

Mutual Life Insurance Company, a corporation, V.

Caroline Thomson, and Freeman J. Thomson, ad-

ministrator, No. 3189, and the same is hereby ap-

proved.

-

7

Approved this 15th day of March, 1946.

Harry A. Hall,

Attorney for Appellant.

Harvey E. Hartz,

Attorney for (Respondent).”

The certificate of the Clerk of the District Court is

to the same effect. But the contract or policy of insur-

ance to which Mrs. Thomson was a party and on which

she relied as a basis of her claim is nut included in the

record.

The complaint filed by the John Hancock Mutual Life

Insurance Company alleges (3):

“That said original policy is filed herewith, marked

‘Exhibit A’ and made a part hereof.”

That “Exhibit A” is nowhere shown in the record,

but on page 5 are the words “(Policy Exhibit 1),” which

is evidently substituted for “Exhibit A.”

Included in the instrument described as “Policy Ex-

hibit 1” are asterisks, and some of the provisions of the

policy which asterisks establish omissions from the con-

i tract (Webster’s Int. Dictionary).

B.

STATEMENT AS TO JURISDICTION.

Mrs. Caroline Thomson filed her notice of appeal in

the District Court on January 22, 1946 (27), and on July

26, 1946, the Circuit Court of Appeals rendered the judg-

ment (135-136) reversing the judgment of the District

Court with costs, which judgment also contained the

following provision (136):

“And it is further ordered by this Court that this

cause be, and the same is hereby, remanded to the

said District Court with directions to enter judg-

8

ment in favor of Caroline Thomson for the proceeds

of the policy deposited in Court by the John Hancock

Mutual Life Insurance Company.

July 26, 1946.”

A petition for rehearing was filed in accordance with

the rule of the Circuit Court of Appeals, and was over-

ruled on September 3, 1946.

The opinion of the United States Circuit Court af

Appeals for the 8th Circuit is reported in 156 F. 2d 581,

and at pages 125-135 of the Record.

The statutory provision which is believed to sustain

the jurisdiction of this Court is the following: Sec. 347,

28 U. S. C. A., providing:

“(a) In any case, civil or criminal, in a circuit

court of appeals * * * it shall be competent for the

Supreme Court of the United States, upon the peti-

tion of any party thereto, whether Government or

other litigant, to require by certiorari, either before

or after a judgment or decree by such lower court,

that the cause be certified to the Supreme Court for

determination by it with the same power and au-

thority, and with like effect, as if the cause had been

brought there by unrestricted writ of error or ap-

peal” (Which said statute in its present form was

adopted February 13, 1925, 43 Stat. 938).

The judgments of the District Court were judgments

which rested for their foundation upon the contract of

insurance involved. It was embodied in and was a part

of the alleged but non existing contract between Mrs.

Thomson and her deceased husband. The burden was

upon Mrs. Thomson, as appellant, to include the entire

contract of insurance in the record in the Circuit Court

of Appeals if she desired to have said Circuit Court try

the case de novo or to review the evidence in the case

with reference to said contract and to reverse the District

Court judgment and direct the entry of a judgment for

Mrs. Thomson.

=

The decision of the Circuit Court of Appeals is, there-

fore, in conflict with the decision of this Court in Red

River Cattle Company of Texas v. Alfred Sully, 144

U. S. 209. It is also in conflict with the decision of an-

other Circuit Court of Appeals, to-wit: that of the Cir-

cuit Court of Appeals of the District of Columbia in Berger

v. Smith, 32 F. 2d 423, Certiorari Denied 280 U. S. 557,

holding that unless the instrument on which the judg-

ment of the trial court was based is included in the record,

the appellate court is without jurisdiction to do other-

wise than affirm the judgment.

The decision of the Court of Appeals is also in conflict

_with the decision of this Court in Erie Railroad Co. v.

Tompkins, 304 U. S. 64, requiring the Federal courts,

in diversity of citizenship cases, to apply the law of the

State in which the federal court sits: Guaranty Trust

Co. v. York, 326 U. S. 99. And in the case at bar, the

right to change the beneficiary in the insurance policy,

reserved by petitioner as a part of the alleged agree-

ment with Mrs. Thomson, was a property right under

the law (Grigsby v. Russell, 222 U. S. 149; McKinney

v. Ins. Co., 270 Mo. 1. c. 315).

That right was adjudicated and determined against

Mrs. Thomson by the decision of the Illinois divorce court

shown in the record (14-17), to which decision the Dis-

trict Court was compelled to give res judicata effect un-

der the decision of the Missouri appellate court in Paper

Products Co. v. Life Insurance Co., 204 Mo. App. 527, and

under the full faith and credit clause provision of the

United States Constitution, and under the decisions of

this Court in Russell v. Place, 4 Otto 606, and De Sollar

v. Hanscome, 158 U. S. 216.

This Court has jurisdiction to review this case on

certiorari for the reason that the facts and the law au-

thorize this Court to review same in the exercise of its

10

sound judicial discretion; and the reasons for review, as

shown by the record, are special and important; and the

record herein discloses that clauses (a) and (b) of Para-

graph 5 of Rule 38 are directly applicable to the questions

here involved and justify a review.

The decision herein is in conflict with the decisions of

the ten circuits on the questions here involved, which

questions here involved are of such importance that it is in

the public interest to have them decided by this Court

under the rule stated by Chief Justice Taft in Magnum

v. Coty, 262 U. S. 159:

“The jurisdiction to bring up cases by certiorari

from the Circuit Courts of Appeals was given for two

purposes, first to secure uniformity of decision be-

tween those courts in the nine circuits, and second,

to bring up cases involving questions of importance

which it is in the public interest to have decided by

this court of last resort.”

C.

THE QUESTIONS PRESENTED HEREIN ARE:

A.

Whether or not a Circuit Court of Appeals has juris-

diction to reverse a judgment of a District Court, and

thereupon to try the case de novo on the record before

it when it affirmatively appears from the record that an

instrument or contract which is the basis of the litigation,

and the basis of the judgment of the District Court, is not

included in the record in the Circuit Court of Appeals.

B.

Whether or not a Circuit Court of Appeals may re-

verse a judgment of the District Court and render a new

judgment in favor of the losing party in the District Court,

7

il

when the evidence which was before the District Court

is not included in the record before the Circuit Court of

Appeals. —

Cc.

Whether or not the agreement of a beneficiary in an

insurance policy that the insured shall have the right to

change the beneficiary can be excluded by the Circuit

Court of Appeals from its consideration on appeal, and

ignored by it in its decision when it makes a finding that

the insured made a contract with the beneficiary not to

change the beneficiary, notwithstanding the very policy

which both parties agreed should be the policy which the

Insurance Company should issue after some two hours’

discussion and consideration thereof, and thus and thereby

deprive the petitioner of that which was the property of

the insured, to-wit: his right to change the beneficiary

in an insurance policy which he owned, notwithstanding

a decree of a court having jurisdiction forever barred any

claim by Mrs. Thomson to any property or property right

of her deceased husband.

D.

Whether or not a judgment rendered by a District

Judge, after a trial between claimants to the balance due

on an insurance policy in an interpleader proceeding

wherein the only relief sought by the contesting parties is

an award of the balance of the insurance money deposited

with the Clerk, and wherein the issues rest upon oral

testimony of witnesses who testified in the presence of

the District Judge, may be reversed by a Circuit Court

of Appeals, which Circuit Court of Appeals did not have

the advantage of seeing and hearing the witnesses testify.

REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT.

I.

_ The Circuit Court of Appeals was without jurisdiction

to reverse the decision of the District Court for the reason

that respondent Caroline Thomson, as appellant in the

Circuit Court of Appeals, failed to include the policy of in-

surance on which the action was founded in the transcript

‘of the record presented to that court. The decision of

the Circuit Court of Appeals is therefore in conflict with

the decision of this Court in Red River Cattle Company of

Texas, plaintiff in error, against Alfred Sully, 144 U. S.

209, wherein this Court said:

“The Chief Justice: The only errors assigned

which might call for consideration depend upon the

terms and the construction of a contract which does

not appear in the record.

The judgment is therefore affirmed” (Italics

Court’s).

II.

The decision and opinion of the Circuit Court of

Appeals is in conflict with ‘the decision and opinion of

the United States Circuit Court of Appeals for the Dis-

trict of Columbia in Berger v. Smith, 32 F. 2d 423, Cer-

tiorari Denied by this Court in 280 U. S. 557, holding that

where the instrument which is the basis of the action is

not included in the record, it cannot be considered.

7

13. -

Il.

The Circuit Court of Appeals was without juris-

diction to try the case de novo and to reverse the judg-

ment of the District Court and to direct the District Court

to enter a judgment for Caroline Thomson, since it ap-

peared from the face of the record before it that all of the

evidence adduced before the trial judge was not included

in the transcript of the record before the Circuit Court

of Appeals, and the decision and opinion of the Circuit

Court of Appeals is therefore in conflict with the many

decisions of this Court, and the courts of all the other

circuits, and the general law on said subject.

Blease v. Garlington, 92 U. S. 1.

IV.

The decision of the Circuit Court of Appeals holding

that the District Court erred in failing to find the issues

for Mrs. Thomson is in conflict with the decisions of the

Courts of the State of Missouri, and of this Court and the

other circuit courts of appeal, in holding that Mrs. Thom-

son had a contract with Arthur Thomson, her husband, by

virtue of which he bound himself to keep the insurance

in force, notwithstanding it appears that Mrs. Thomson

agreed, as a part of the alleged agreement that Mr. Thom-

son should reserve the right to change the beneficiary in

the policy, and that Mr. Thomson exercised the right so

given to him by the terms of the policy, and to which

right to change Mrs. Thomson agreed at the time both

parties agreed to accept said policy with said provision

written therein, and at the time Mr. Thomson was alleged

to have made the statements on which the Court of Ap-

peals based its judgment.

14

V.

The Circuit Court of Appeals overlooked the fact that

the jurisdiction of the District Court was based alone on

diversity of citizenship, and that for said reason the Dis-

trict Court was merely another court of the State, under

the decision of this Court in Guaranty Trust Company v.

York, 326 U. S. 99, and that the decision of the District

Court was in accordance with the law of the State of

Missouri, and that the decision of the Court of Appeals is

in conflict with the law of the State of Missouri on the

question, as expressed in the opinion of the Missouri

appellate court in Kinney v. Insurance Company, 270 Mo.

305, 1. c. 315, and Dunavant v. Mountain States Life In-

surance Company, 67 S. W. 2d 785, and therefore in conflict

with the decision of this Court in Erie R. Co. v. Tompkins,

304 U.S. 64.

VI.

The evidence offered by Mrs. Thomson, by her witness

the district manager, disclosed her agreement, at the time

the contract of insurance was made, that her alleged con-

tract with deceased embodied the agreement that Mr.

Thomson should have the right to change the beneficiary,

and that said provision, with her knowledge and consent,

was written into the policy therein issued to Mr. Thom-

son. Said right of Mr. Thomson to change the beneficiary

was a property right, which property right was included

in and was amongst the rights of property referred to in

the property settlement and in the decree of divorce.

The decision and opinion of the Court of Appeals is there-

fore in conflict with the decision of the Missouri appellate

court in Paper Products Company v. Life Insurance Com-

pany, 204 Mo. App. 527, and the decisions of this Court

in Russell v. Place, 4 Otto 606, and De Sollar v. Hanscome,

158 U. S. 216.

15

Vil.

The opinion of the Circuit Court of Appeals is in con-

flict with the general law on the question stated in Sec.

1724 of 4 C. J., as follows:

“(Sec. 1724) (4) Instrument Sued on or Involved.

If the instrument sued on is to be examined by the

court on appeal, it must be made a part of the record

by a bill of exceptions, or in some other legitimate

way; otherwise it cannot be considered, and it is not

made a part of the record by the clerk’s recital of it,

or by being indorsed on the declaration, although

where actions are brought under certain statuiory pro-

visions such instrument becomes part of the pleading.

But papers do not become a part of the record by being

filed with the pleadings, in conformity with a statu-

tory provision which dves not make them a part

thereof. Simple profert of an instrument, without

oyer, does not make it a part of the record. But

when oyer of the instrument is given it becomes part

of the pleading; and if profert is in fact, although un-

necessarily, made, and oyer craved and given, the in-

strument becomes a part of the record.

“Presumption in favor of judgment. If the in-

strument which is the foundation of the action is not

so incorporated, every reasonable intendment must be

indulged in favor of the judgment of the court being

in accordance with its terms.” Greco v. Haff, 63 F.

2d 863.

Vil.

Mrs. Thomson was a party to the contract and bound

by its terms, including the provision giving Mr. Thomson

the right to change the beneficiary; and consequently,

whatever right Mrs. Thomson might have was a right

subject to the terms of the contract of insurance to which

she was a party.

a eee

16

The decision of the Circuit Court of Appeals is,

therefore, in conflict with the decision of the Supreme

Court of Missouri in McKinney v. Insurance Company,

270 Mo. 305, 1. c. 315, where the court decided that “‘a con-

tract provision which entitled the insured to change the

beneficiary” in an insurance policy “is as broad as its

terms and no broader, and hence it must be construed

according to the terms and stipulations expressing it in

a given case.” And further held that “the power to

exercise it is measured by the language on which it is

founded,” and that whether that right “arises by con-

vention or from the nature of the insurance, the bene-

ficiary to be affected by its exercise has a conditional in-

terest only in the policy proceeds, while the power to

change such beneficiary continues to exist.”

IX.

The decision of the Circuit Court of Appeals is in con-

flict with the decision in Caffery v. John Hancock Mu-

tual Life Insurance Company, 27 Fed. 25, 1. c. 28, holding

that “the beneficiary is bound by the contract entered

into between the insured and the company.”

X.

The decision of the Circuit Court of Appeals is in

conflict with the opinion of this Court in Bank v. Hall,

101 U. S. 43, and in conflict with Equitable Life Ins. Co.

v. McElroy, 83 Fed. 638 (C. C. A. 8), where Sanborn,

J., said:

“The subject matter of a policy of insurance is

the life insured. The parties to it are the insurance

company, on the one hand, and the beneficiaries on

the other. The parties to a contract are as important

as the subject matter and parties cannot be imported

17

or substituted upon one side of a contract without the

consent of those on the other. Bank v. Hall, 101 U. S.

43, 51.”

XI.

The judgment of the District Judge was based upon

the oral evidence of witnesses and the insurance policy

which was the basis of the litigation. The only issue to

be determined between the parties hereto was who was

entitled to a judgment for the balance due on the insurance

policy, the proceeds of which were deposited with the

Clerk of the District Court. The judgment of the District

Judge was supported by substantial evidence, part of

which was oral, and was binding on the Circuit Court of

Appeals, which court was without jurisdiction to try the

case de novo, especially since all the evidence before the

District Judge was not before the Court of Appeals.

XII.

The stipulation at page 120 should have been con-

strued by the Circuit Court of Appeals with reference to

its subject-matter and in the light of the surrounding

circumstances, including the facts appearing in the tran-

script of the record, which record shows that the insurance

contract, which was the basis of the litigation and part of

the alleged contract on which Mrs. Thomson based her

claim for relief—and so construed, it is apparent that said

stipulation was based on mistake, or inadvertence, and

the Court of Appeals should have found and disregarded

said stipulation, which was, as shown by the record, un-

true and the parties could not by a stipulation give the

Circuit Court of Appeals jurisdiction not conferred on it by

Section 225, Title 28, U. S. C. A, which was wholly

appellate.

ANS RAEI

18

CONCLUSION.

Wherefore, your petitioner prays that a writ of cer-

tiorari under the seal of this court, directed to the United

States Circuit Court of Appeals for the 8th Judicial Cir-

cuit commanding said court to certify and.send to this

court a full and complete transcript of the record and of

the proceedings of the said United States Circuit Court

of Appeals for the 8th Circuit and of the case numbered

and entitled on its docket No. 13330 Civil, Caroline Thom-

son, Appellant, v. Freeman J. Thomson, Administrator

of the Estate of Arthur W. Thomson, Appellee, to the end

that the cause may be reviewed and determined by this

court as provided for by the statutes of the United States,

and that the judgment of the United States Circuit Court

of Appeals for the 8th Circuit be reversed by this court,

and for such further relief as to this court may seem

proper.

Dated November 7th, 1946.

Harvey E. HaRTz,

Martin J. O’DONNELL,

Attorneys for Petitioner.