Petitioner for ReHearing — Universal Oil Products Co. v. William Whitman Co.

~ O i Y pa nari U. §

JAN 27 i949

IN THE

Supreme Court of the United States

OctToBER TERM, 1948

Nos. 439-440

UNIVERSAL OIL PRODUCTS COMPANY,

Petitioner,

v.

ROOT REFINING COMPANY,

Defendant,

and

WILLIAM WHITMAN COMPANY, INC.

Intervenor-Respondent.

PETITION FOR REHEARING

Ratpu S. Harris,

Attorney for Petitioner.

Joun R. McCuttoucu,

Apam M. Byrp,

Leo L. LAskorr,

H, ALLEN LocHNER,

Of Counsel.

Abernathy, Ex Parte, 320 U.S. 219 ...........08.

Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401....

Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251..

i errr

United States v. Carver, 260 U.S. 482 ... 2... ... 00s

—

In THE

Supreme Court of the United States

OctosBer Term, 1948

Nos. 439-440,

UniversaL Ort Propucts Company,

Petitioner,

Vv.

Root REFINING CoMPANy,

Defendant,

and

WILLIAM WHITMAN Company, INc.,

Intervenor-Respondent.

PETITION FOR REHEARING

To the Honorable Chief Justice of the United States and

Associate Justices of the Supreme Court of the United

States:

Petitioner, Universal Oil Products Company, prays this

Court for a rehearing pursuant to Rule 33, Subdivision 2,

of this Court. The petition will be confined to what are

believed to be substantial grounds available to petitioner

although not previously presented. :

On December 28, 1946, William Whitman Company,

Inc. commenced suit against petitioner in the United States

District Court for the District of Delaware alleging, inter

alia, (a) that a certain license agreement entered into be-

2

tween it and petitioner in April 1937 had been induced by

the fraudulent representation by petitioner that the judg.

ments of affirmance rendered by the Court of Appeals for

the Third Circuit on June 26, 1935, in favor of petitioner

and against Root Refining Company were honestly pro-

cured, or (b) that said license agreement was entered into

between William Whitman Company, Inc. and petitioner

upon q mutual mistake of fact.

In June, 1947, the Court of Appeals for the Third Cir.

cuit set aside its 1944 order vacating the Root judgments

for fraud and required petitioner in spite of the absence of

“parties” to show cause why the Root judgments of af-

firmance should not be set aside for fraud.

On December 30, 1947, William Whitman Company,

Inc. moved the Court of Appeals for the Third Circuit for

leave to intervene in the proceedings at bar with respect to

the charge that the judgments of affirmance in the Root case

had been procured by fraud.

These proceedings, at the time of the motion for inter-

vention, were entirely without parties in the constitutional

sense. The original party defendant, Root Refining Com.

pany, had settled its case with petitioner in 1939 and had

reaffirmed and implemented that settlement in 1944 (328

U. S. 575, 577). Certain attorneys who had appeared

amici curiae in the earlier phases of the proceedings (ibid.)

had withdrawn.

The United States of America had filed an appearance

through the Department of Justice as Amicus Curiae.

It was in this posture that hearings were had early in

1948 by the Court of Appeals for the Third Circuit, as

specially constituted, upon the petition of William Whitman

Company, Inc. for leave to intervene as aforesaid.

3

In opposition to Whitman’s motion, petitioner urged

that, in the absence of parties, there was no case or contro-

versy before the court in the constitutional sense (see our

main brief upon petition for certiorari filed December 1,

1948, pp. 56-62) and hence no justiciable controversy with

respect to which Whitman might properly be allowed to

intervene.

In taking this position petitioner in no wise denied the

inherent right of the Court of Appeals to unearth a fraud

committed upon it and to unearth it effectively (328 U. S.

575, 580). Petitioner maintained, however, that it was

neither lawful nor just that William Whitman Company,

Inc., which was engaged in private litigation with petitioner

in a plenary action previously commenced by Whitman in

Delaware, should be associated with the instant proceedings

in the Court of Appeals. To hold otherwise, petitioner

urged, would result in a judgment in vacuo in a proceeding

designed exclusively to vindicate the honor of the Court of

Appeals.

The Court of Appeals overruled petitioner’s objections

and granted the intervention of Whitman on April 6, 1948.

I.

We do not at this time reargue the extent to which the

Court of Appeals had jurisdiction, in the interest of the

honor and integrity of that court, to investigate whether

or not the court’s judgments were tainted with fraud and

to punish officers of the court and litigants by appropriate

action.

That the court may have had such jurisdiction, how-

ever, is very far, we respectfully submit, from justifying

the proceedings as a constitutional case or controversy as

4

far as the private litigation between petitioner and Whit.

man in the pending Delaware action is concerned.

It is our contention that the judgment of the Court of

Appeals is not res adjudicata as between Whitman and

petitioner, although the court below appears specifically to

have so held (169 F. 2d 514, 525). We respectfully urge

that the Court of Appeals be reversed in this particular,

II.

Moreover, it is maintained by Amicus Curiae and by

Whitman that this Court, in denying petitions for writs of

prohibition, mandamus and certiorari on November 10,

1947 (332 U. S. 813), necessarily determined that a case

or controversy in the constitutional sense existed in the

present proceeding. This Court has consistently held that

the denials of such petitions are without legal significance

with respect to the merits of the matters sought to be pre-

sented to the court. Ex Parte Abernathy, 320 U. S. 219:

Atlantic Coast Line R. Co. v. Powe, 283 U. S. 401, 403-4;

United States v. Carver, 260 U. S. 482, 490; Hamilton

Shoe Co. v. Wolf Brothers, 240 U. S. 251, 258; Accord:

House v. Mayo, 324 U. S. 42, 47-8.

The erroneous assumption that the denial of such peti-

tions necessarily implied an adjudication upon the points

sought to be reviewed has been embodied and perpetuated

in the opinion of the court below in these proceedings.

For example, the court stated, 169 F. 2d 514 at 523:

“This interpretation [that there was a case or contro-

versy below] of the Supreme Court’s position [in

328 U. S. 575] is in harmony with its subsequent

rejection of Universal’s petition for writs of pro-

5

hibition and mandamus, directed to this court, where-

in Universal again advanced the contention that this

court had acted in excess of its jurisdiction.”

It is humbly submitted to this Court that it should grant

this petition in order to reverse the lower court in this re-

spect and thus prevent, in litigation involving petitioner

and others, other courts from applying the doctrine of

stare decisis in respect of the lower court’s construction

of this Court’s denial of previous petitions. Unless this

Court shall do so, then in addition to the error already per-

petrated it will be claimed, and other courts may hold, that

this Court’s recent denial ( U.S. , decided January

17, 1949) of the petition for writs of certiorari is similarly

decisive of the contested questions in the proceedings below.

For all the foregoing reasons petitioner respectfully

prays that this Court grant this petition for rehearing and

issue its writs of certiorari for the purpose of determining

the questions herewith submitted.

Respectfully submitted,

UNIVERSAL O1Lt Propucts ComMpPANy,

Petitioner,

By Ratps S. Harris,

Attorney for Petitioner.

Joun R. McCuttoucs,

Apam M. Byron,

Leo L. Laskorr,

H, ALLEN LocHNER,

Of Counsel.

January 26, 1949,

CERTIFICATE OF COUNSEL

The undersigned hereby certifies that the foregoing

petition for rehearing is presented in good faith and not for

delay and that the petition is restricted to the grounds above

specified.

RALPH S. Harris