Opposition Brief — Kilpatrick v. Texas & Pacific Railway Co.

Ia uD

IN THE

— pis OCT 1

s Supreme Court of the Unite States ~

ci- October Term, 1948 CHARLES CLAIGHE ALgy

ler ai vbtpietnintisharatisienseccse RK

an No. 275

Lis Mise. No. 119

ly Sees

os Jxssiz A, Kiuparrick, Petitioner,

d. —against—

Tue Texas anp Paciric Raruway Company,

Respondent.

>

l No. 276

i Misc. No. 120

ie

ul L. M. Parker, Petitioner,

r UR

e Tue Texas anp Paciric Rarmway Company,

. Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO PETI-

TIONS FOR WRITS OF CERTIORARI TO THE

CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT AND IN OPPOSITION TO PETITIONS

FOR WRITS OF PROHIBITION TO THE DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS

¥Joun M. Scorr

ArpeLL M, Youne

1210 Electric Building

Fort Worth, Texas

Wuuiam H. Timsers

15 Broad Street

New York, N. Y.

Attorneys for Respondent

Samvuets, Brown, Herman & Scott

Davis Po.K WarDWELL SUNDERLAND & KIENDL

Of Counsel.

4

INDEX

PAGE

Statement 1

ARGUMENT

Pout I

The petitions for writs of certiorari should be

denied because the orders which petitioners seek

to have reviewed are not final orders ..........-..-..---- 3

Porunt IT

The petitions for writs of prohibition should be

dismissed because the district court clearly has

exclusive jurisdiction over the actions now pend-

ing im that COUPE .......--.-----------co-seessseeeensseesenneeenetes 5

Port II

Petitioners’ motion for a stay of proceedings in

the District Court for the Northern District of

Texas should be denied because this Court has no

jurisdiction with respect to the Texas actions ...... 6

CONCLUSION ......--.-c-c-ccescecesccsenencnrenssnserssensnsensansntensseesecanacenenens 7

inate att RAN a Ce DES NADA IE IANS La ee

o-

& oe

TaBLe oF Cases CITED

Atlantic. Coastline Railroad Company v. Winn, 227

Fed. 50 (CCA 5th 1915)

-

Beighle v. Le Roy, 94 F(2d) 30 (CCA 3rd 1938)

Catlin v. United States, 324 U. S. 229, 233-234 (1945)

Ex parte Fahey, 332 U. S. 258 (1947)

Ex parte United States, 263 U. S. 389 (1923)

Grand Trunk Western Railroad Company v. McHie

(CCA 6th 1938)

Heike v. United States, 217 U. S. 423, 428-429 (1910)

Libby, McNeil & Libby v. Malmskold, 115 F(2d) 786

(CCA 9th (1940) )

Merriman v. Chicago & E. I. R. Co., 64 Fed. 535 (CCA

7th (1894) )

Poliszek v. Doak, 57 F(2d) 430 (App. D. C. 1932)

Smith v. Whitney, 116 U. S. 167 (1886)

Oruer AvutTuHorities CITED

Rules of Civil Procedure

Rule 41 (a) (2)

Section 2101 (e) of the Federal Judicial Code (Title

28 U. S. Code)

PAGE

Supreme Court of the United States

October Term, 1948

No. 275

Mise, No. 119

—>—

Jessie A. KitpatRick, Petitioner,

—against—

Tax Texas aNp Paciric RarLway Company,

Respondent.

—$~--——

No. 276

Mise. No. 120

—<—

L. M. Parkes, Petitioner,

—against—

ue Texas aNp Paciric Ramway Company,

Respondent.

od

FOR WRITS OF

COURT FOR THE

OF TEXAS

Statement

Petitioners seek, by their petitions for certiorari, to have

this Court review, prior to any hearing or decision by the

Cireuit Court of Appeals for the Fifth Circuit, two orders

entered in the District Court for the Northern District of

Texas denying motions by petitioners, pursuant to Rule

41(a)(2) of the Federal Rules of Civil Procedure, to dis-

a te

ESLER LSETY OT ah PO OY cree

ce ENTITLE TN IPA

2

miss the complaints. Petitioners also seek, by their peti-

tions for writs of prohibition, to invoke the original juris-

diction of this Court to direct the District Court for the

Northern District of Texas to proceed no further with the

actions now pending in that Court on the ground that it has

been divested of jurisdiction by reason of the appeals taken

by petitioners to the Circuit Court of Appeals for the Fifth

Circuit.

Respondent opposes the petitions for certiorari and the

petitions for prohibition on the ground that this Court does

not have jurisdiction to review the only orders which peti-

tioners seek to have reviewed in this Court; namely, the

orders of the District Court denying petitioners’ motions

to dismiss the complaints. Respondent contends, as the

Cireuit Court of Appeals for the Fifth Circuit has held,*

* The full opinion of the Circuit Court of Appeals for the Fifth Circuit

denying petitioners’ petitions for writs of prohibition on April 13, 1948 in

this case is as follows:

“PER CURIAM: Petitioners, plaintiffs in separate suits in the

court below, moved there for a dismissal without prejudice of their

suits. Their motions denied, each filed notice of appeal. Alleging that

respondent notwithstanding their appeals had set the causes for trial

and, unless prohibited from doing so, would proceed to trial in them,

each has filed a petition for writ of prohibition.

“This court may issue writs of prohibition only in aid of its

jurisdiction to review final decisions of the district courts.1 It ap-

pears from the motion papers and the answers thereto that peti-

tioners’ attempted appeals from orders denying dismissal are not

from final judgments? It is quite plain that this court is without

jurisdiction to consider the merits of the questions sought to be raised

in the applications for the writs and that for want of jurisdiction the

petitions must be denied.

1 28 USCA 225; Smith v. Whitney, 116 U. 8S. 167; In Re: The Peti-

tion of United States, 263 U. 8, 389; Roche v. Evaporated Milk Ass'n,

319 U. 8. 21.

2 Grand Trunk Western R. Co. v. McHie, 100 F(2) 86; Atlantic

Coast Line R. Co. ¥. Winn, 227 Fed. 50; Heike v. U. 8., 217 U. 8. 423.”

—— ee ee

3

that the orders of the District Court are not final orders

and, therefore, are not appealable. [°or want of jurisdic-

tion the petitions for certiorari should be denied and the

petitions for writs of prohibition should be dismissed.

ARGUMENT

I te)

The petitions for writs of certiorari should be de-

nied because the orders which petitioners seek to have

reviewed are not final orders.

The orders denying petitioners’ motions to dismiss the

complaints certainly are not final and appealable orders

within the test laid down by this Court in the case of Hetke

y, United States, 217 U.S. 423, 428-429 (1910):

“The construction of §5 of the Court of Appeals Act

was before this court in the case of McLish v. Roff, 141

U. S. 661, 665, and it was there held that the allowance

of appeals or writs of error under that section must be

understood to have the meaning which those terms had

always had under acts of Congress relating to the

appellate jurisdiction of this court, and that taken in

that sense appeals or writs of error could only be

allowed in cases in which there had been a final judg-

ment. Mr. Justice Lamar, who spoke for the court in

that case, pointed out that under the Judiciary Act of

1789 no appeal would lie to this court except from final

judgments or decrees, and further stated that this

was only declaratory of the settled practice of England,

where no writ of error would lie except from a final

judgment; and if the writ was made returnable before

such judgment it would be quashed, and in this con-

nection, speaking for the court, the learned justice

said :

4

‘From the very foundation of our judicial system the

object and policy of the acts of Congress in relation to

appeals and writs of error * * * have been to save the

expense and delays of repeated appeals in the same

suit, and to have the whole case and every matter in

controversy in it decided in a single appeal.’

McLish v. Roff, supra, has been followed and ap-

proved in this court. American Construction Co. vy.

Jacksonville, Tampa & Key West Ry., 148 U. S. 372;

Kirwan v. Murphy, 170 U. S. 205, 209; Ea parte Na-

tional Enameling Co., 201 U. S. 156.

It may, therefore, be regarded as the settled practice

of this court that a case cannot be brought here by

piecemeal, and is only to be reviewed here after final

judgment by direct appeal or writ of error in a lim-

ited class of cases under §5 of the Court of Appeals

Act.

It is unnecessary to enter upon a full consideration

of what constitutes a final judgment, a subject of much

discussion. The definition of a final judgment or decree

was tersely stated by Mr. Chief Justice Waite in St.

Louis, Iron Mountain € S. R. R. Co. v. Express Co.,

108 U. S. 24, 28, in these terms: ‘A decree is final for

the purposes of an appeal to this court when it ter-

minates the litigation between the parties on the merits

of the case and leaves nothing to be done but to enforce

by execution what has been determined.’ ”

By no possible construction can it be said that the orders

of the District Court denying petitioners’ motions to dis-

miss the complaints terminate the litigation between the

parties on the merits and leave nothing to be done but to

enforce by execution what has been determined. The Dis-

trict Court, in denying petitioners’ motions to dismiss the

complaints, simply held that the cases should proceed to

trial.

EET 8S ym nn . - . epee

TL ee ee mote TE a

5

The rule that non-final orders of the character of those

which petitioners seek to have this Court review are not

appealable, has been rigidly adhered to without exception

in the Federal courts.

Catlin v. United States, 324 U. S. 229, 233-234

(1945) ;

Libby, McNeil & Libby v. Malmskold, 115 F(2d)

786 (CCA 9th (1940));

Grand Trunk Western Railroad Company v. Mc-

Hie, 100 F(2d) 86 (CCA 6th (1938)); °

Beighle v. Le Roy, 94 F(2d) 30 (CCA 3rd 1938) ;

Atlantic Coastline Railroad Company v. Winn, 227

Fed. 50 (CCA 5th 1915) ;

Merriman v. Chicago & E. I. R. Co., 64 Fed. 535

(CCA 7th (1894)).

In the case of Libby, McNeil & Libby v. Malmskold,

supra, the Court stated (p. 787):

“Tt seems too plain for argument that the denial of a

motion for a nonsuit or to direct a verdict is not a final

decision. So also as to a motion to set aside a, verdict

or to dismiss without prejudice.” (Italics added. )

Il

The petitions for writs of prohibition should be

dismissed because the District Court clearly has ex-

clusive jurisdiction over the actions now pending in

that Court.

The per curiam opinion of the Circuit Court of Appeals

for the Fifth Cireuit* in denying the petitions for writs of

* This opinion is set forth in full at page 2, supra.

6

prohibition filed by petitioners in that Court constitutes a

convincing statement of why the petitions for prohibition

should be denied by this Court.

Moreover, it repeatedly has been held by this Court and

by other Federal courts that the writ of prohibition is an

extraordinary remedy, reserved for “really extraordinary

causes”, and is not to serve the office of an appeal.

Ex parte Fahey, 332 U.S. 258 (1947);

Ex parte United States, 263 U. S. 389 (1923) ;

Smith v. Whitney, 116 U. S. 167 (1886);

Poliszek v. Doak, 57 F(2d) 430 (App. D. C. 1932).

III

Petitioners’ motion for a stay of proceedings in the

District Court for the Northern District of Texas

should be denied because this Court has no jurisdic-

tion with respect to the Texas actions.

The power of this Court to stay proceedings in a case in

which a petition for certiorari is pending in this Court is

defined in 28 U.S. C. §2101(e) as follows:

“(e) In any case in which the final judgment or de-

cree of any court is subject to review by the Supreme

Court on writ of certiorari, the execution and enforce-

ment of such judgment or decree may be stayed for a

reasonable time to enable the party aggrieved to obtain

a writ of certiorari from the Supreme Court. The stay

may be granted by a judge of the court rendering the

judgment or decree or by a justice of the Supreme

Court, and may hb conditioned on the giving of security,

approved by such judge or justice, that if the aggrieved

party fails to make application for such writ within

the period allotted therefor, or fails to obtain an order

7

granting his application, or fails to make his plea good

in the Supreme Court, he shall answer for all damages

and costs which the other party may sustain by reason

of the stay.” (Italics added.)

Inasmuch as the orders which petitioners seek to have

reviewed in this Court are not final orders and therefore

are not appealable, it is abundantly clear that this Court

has no jurisdiction with respect to those orders and, accord-

ingly, has no power to stay proceedings in the District

Court actions as requested by petitioners.

CONCLUSION

The petitions for writs of certiorari to the Circuit Court

of Appeals for the Fifth Circuit should be denied; the

petitions for writs of prohibition to the District Court for

the Northern District of Texas should be dismissed; and

petitioners’ motion for a stay of proceedings in the District

Court for the Northern District of Texas should be denied.

Dated: Fort Worth, Texas, October 1, 1948.

Respectfully submitted,

Joun M. Scorr

ArpeLL M, Youne

1210 Electric Building

Fort Worth, Texas

Wuuiam H. Timsers

15 Broad Street

New York, N. Y.

Attorneys for Respondent

Samuets, Brown, Herman & Scorr

Davis PoLK WarDWELL SUNDERLAND & Krenn.

Of Counsel.

October 1, 1948