# Petition for Writ of Certiorari — Thomson v. Thomson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1946
- **Citation:** 329 U.S. 793

## Text

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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,

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0872%3A1. Public record. Not legal advice.