# Petition for Rehearing — Johnston v. McIntee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0212%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Rehearing - **Published:** January 1, 1950 - **Citation:** 340 U.S. 817 ## Text Noss ‘3 a * ¥ ote ® Xt $3 “2 * SE rit -; eo Slave Ee SO ek ae IN THE Supreme Court of the United States OctosEr Term, 1949. No. 118 CHARLES RALPH JOHNSTON, Petitioner, vs. DAVID McINTEER, ete., et al., Respondents. PETITION FOR REHEARING. CuarLes RaLpo JOHNSTON, and Hector A. Brovr.er, Attorneys for Petitioner. IN THE Supreme Court of the United States Ocroser Term, 1949. No. 118 CHARLES RALPH JOHNSTON, Petitioner, vs. DAVID McINTEE, etce., et al., Respondents. PETITION FOR REHEARING. May Ir Piease Tue Court: Petitioner, by his attorneys, presents herewith his Peti- tion for a rehearing of his Petition for Certiorari to the United States Court of Appeals for the Seventh Circuit, and says: te La LEER ALIA I. The Court of Appeals ruling deprives Petitioner of his day in Court solely by reason of its error in interpreting Rule 25(c) of the Federal Rules. The sole issue on this appeal is whether petitioner is en- titled to his day in court. The Court of Appeals ruling denies petitioner that right. Such denial is based entirely upon @ misinterpretation of Rule 25(c) of the Federal Rules of Civil Procedure. This Court repeatedly has granted certiorari when an important denial of justice has occurred in the Courts of Appeal where the sole issue in- volved is an interpretation of the Federal Rules of Civil Procedure. The denial of petitioner’s day in court is an important denial of justice, since it affects other future litigants also. The Cireuit Court’s misinterpretation of Rule 25(e) is based primarily upon an improper application of this Court’s decision in Anderson v. Yungkau, 329 U.S. 482, which interprets Rule 25(a) exclusively, and has no applic- ability whatever to Rule 25(c). In construing Rule 25(e), the Cireuit Court also by judicial fiat, has injected a con- dition into Rule 25(c) which is not contained in that Rule by any language whatever; and which will result in a sub- stantial denial of justice to petitioner and to other future litigants, by depriving them of their day in court, if cer- tiorari should not be granted by this Court. The condition so injected into Rule 25(¢c) requires an intervenor, in an action in the District Court involving a res, to claim ownership of or a lien upon the entire res; and deprives the intervenor of the right to intervene when- ever, as in the instant case, he claims ownership of or a lien upon only a part of the res. The Cireuit Court er- a =7>" 3 roneously has deprived petitioner of his day in court upon the sole ground that he does not claim ownership of or a lien upon the entire res, thereby injecting into Rule 25(c) a condition which is neither directly or indirectly con- tained in said Rule 25(c). Respondents’ Answer (p. 4, 6) concedes that petitioner was deprived of his day in court solely under Rule 25(a), as interpreted by this Court in the Anderson v. Yungkau ease. It is respondents’ argument that ‘‘since this case had to be and was dismissed pursuant to Rule 25(a)(1)’’ in relation to another litigant, whether petitioner was en- titled to his day in court under Rule 25(c) is irrelevant. The complete answer to this position is that it makes no difference whether the case, as to a litigant other than petitioner, was dismissible under Rule 25(a) (1), since peti- tioner’s right to his day in court under Rule 25(c) per- sisted and still persists. The Court of Appeals’ denial of petitioner’s right to his day in court ynder Rule 25(c) cannot be justified upon the theory that the case was dismissible as to an entirely different litigant under Rule 25(a)(1). Such dismissibility was based upon the death of the other litigant, and the failure (for wihch petitioner was not responsible) of the legal successors in interest to said deceased litigant to appear in the case within the two-year period prescribed in Rule 25(a) cannot concern petitioner’s separate right to his day in court under Rule 25(c). The case was still pending when petitioner sought his day in court under Rule 25(c); and no valid ground for denying petitioner his day in court under Rule 25(c) ap- pears in the Cireuit Court’s opinion, except upon the un- tenable theory that he claimed to be an owner or a lienor of less than the totel res involved in the litigation. 3 4 | This Court should not permit the Federal Rules of Civil Procedure to be so far misinterpreted and distorted as to deprive petitioner of his day in court (1) by a misappli- cation of this Court’s opinion in the Anderson v. Yungkau case construing only Rule 25(a), and having no applicabil- itu to Rule 25(¢); and (2) by the improper injection into Rule 25(c) of a requirement that petitioner must claim to be the owner or lienor of the entire res involved in the liti- gation, which condition does not appear in Rule 25(e) either in terms or by implication. II. The Court of Appeals ruling is in conflict with other opin- ions of the Circuit Courts of Appeal. Petitioner contends that his right to one-third of the res sued for in this case was assigned to him pendente lite on September 5, 1942 (Tr. 23), which date was ten months after the suit was filed on November 29, 1941 (Tr. 2). Respondents’ argument under Point I of their Answer admits that if petitioner was a transferee pendente lite, then the rule in Dryden v. Land Investment Co., Ine., 127 F. (2d) 586, would apply, holding that a transferee pen- dente lite may have his day in court under Rule 25(c). Hazeltine Corp. v. Kirkpatrick, 165 F. 2d 683, Roberts Min- ing & Milling Co. v. Schrader, 95 F. 2d 522, and Sanders v. Hall, 75 F. 2d 399, are to the same effect. In the latter case, the transferee became the sole party plaintiff. Petitioner construed the Dryden case to hold that a trans- feree before suit may have his day in court under Rule 25(¢); but if respondents are correct and the Dryden case ; involved a transferee pendente lite, then that case would support petitioner’s right to nis day in court in the instant ease, because he did not become transferee until ten months after the suit was filed. a a . It follows that respondents’ denial that there is any con- flict between the Dryden case as they construe it and the instant case is without merit, since in this case petitioner is a transferee pendente lite, and should be granted his day in court under that decision, which conflicts directly with the Circuit Court’s decision in the instant case. Respondents also argued that the case of Hood v. Bell, 84 F’, 2d 136, is not in conflict with the Court of Appeals’ decision in the instant case because the Hood case was decided before the Federal Rules were adopted and did not involve a deceased party. We have already seen that Rule 25(c) does not involve a deceased party, that being a mat- ter of significance only under Rule 25(a). The date of the adoption of the Federal Rules has nothing to do-with ‘ne holding in the Hood case. The whole point of the Hood case was that a transferee who makes his motion for sub- stitution prior to the time an order of dismissal is entered in the case is entitled to his day in court therein, even though the case was subject to a possible order of dismissal at the time the intervenor sought to intervene. It thus fol- lows that respondents’ attempt to distinguish the Hood case on irrelevant matters cannot meet petitioner’s correct contention that the deprivation of his right to his day in court in the instant case is directly contradictory to the rule in the Hood case, in which the transferee was granted his day in court under circumstances identical to the instant case, Petiticner concludes that the square conflict between the unanimous opinion of the Fourth Cireuit Court by Judge Parker in the Hood case and the opinion of the Seventh Cir- cuit Court in the instant case, upon the very same issue as to whether an intervenor shall be deprived of his day in court if, while the case is still pending, and although sub- ject to possible dismissal, the intervenor’s application Heat 6 actually is made before any order of dismissal is entered, is a conflict which justifies the granting of certiorari under both the meaning and spirit of Rule 38(5)(b) of this Court. CONCLUSION. There is no more important right to be protected by the Supreme Court than the right of every litigant, present and prospective, to have his day in court. Wherefore, petitioner prays that this Court may grant a ‘rehearing and reconsider its order denying certiorari herein. Respectfully submitted, CuHarLEs RALPH JOHNSTON and Hector A. Brovut.er Attorneys for Petitioner. Certificate. I hereby certify that I am one of the attorneys for the petitioner in the above entitled cause; and that I am a member of the bar of this Court. I hereby further certify that the foregoing Petition for Rehearing is made in good faith; and in my opinion is well founded in point of law; and is not filed herein for purposes of delay. Hector A. BroviLLetr IN THE Supreme Court of the United States Octosrr Term, 1949. No. 118 CHARLES RALPH JOHNSTON, Petitioner, Vs. DAVID McINTEE, etce., et al., \ Respondents, PETITIONER’S BRIEF SUPPORTING PETITION FOR REHEARING. I. Respondents’ brief states (p. 1-2) that ‘‘Reka Goldberg Hofheimer (hereinafter called ‘‘plaintiff’’) filed her com- plaint November 29, 1941 (Tr. 2),’’ and that the assign- ment of the 500 shares of preferred stock and 1500 shares of common stock to petitioner was made on September 25, 1942, and was therefore made pendente lite. Respondents’ argument under Point I is that both Dry- den v. Land Investment Co., Inc., 127 F. (2d) 586, and ‘‘the opinion of the Court in this case’’ (p. 5) hold that a transfer pendente lite is ‘‘a transfer within the meaning of Rule “eA LIBAAE RSTO ELAN LEP LEIA LIBERAL EVAL ERI INO AOS i Se Er reaite Once 25(e).’’ Petitioner thoroughly agrees that a transfer pendente lite requires a substitution under Rule 25(c). See Hazeltine Corp. v. Kirkpatrick, 165 F, 2d 683; Roberts Mining & Milling Co., v. Schrader, 95 F. 2d 522, and Sand- ers v. Hall, 75 F. 2d 399, where the transferee became sole party plaintiff. The decision, as distinguished from the opinion, of the United States Court of Appeals in the case at bar is there- tore in direct conflict with both the Dryden case and the opinion itself, for the reason that, as shown by respond- ents’ opposing brief (p. 1-2), the assignment to petitioner was made on September 25, 1942 (Tr. 23), which was ten months after the suit was filed on November 29, 1941 (Tr. 2) and was therefore an assignment pendente lite insofar us petitioner’s rights are concerned. Thus it makes no difference it the Dryden case involved a transferee pendente lite rather than a transferee before suit. The truth is that Rule 25(c) contains no condition re- quiring the party seeking to be substituted to be a trans- feree before suit or a transferee pendente lite; and as we read the Dryden case, the Court there so held. That hold- ing is clearly in direct conflict with the decision (as distin- euished from the opinion) of the United States Court of .\ppeals in the instant case. II. Respondents argue (p. 5) under Point II that the case of Hood vy. Bell, 84 F. 2d 136, is not in conflict with the Court of Appeals’ opinion in the case at bar, because: ‘* The Hood case was decided before the adoption of the Federal Rules of Civil Procedure and did not involve a deceased party.’’? These matters, however, do not go to the issue on which petitioner cited the Hood case in his petition. _ 9 The whole point of the Hood case is that Judge Parker, speaking for a unanimous court, squarely held that it was reversible error for the District Court to enter an order dismissing the case, even though such order of dismissal as to the prior plaintiff was proper, where the transferee had made his motion for substitution prior to the time the order of dismissal was entered. This was precisely the situation in the case at bar. Respondents, in an effort to distinguish the Hood case, argue (p. 6) that ‘‘Rule 25(c) contemplates that the original party be living.’’ But there is no such condition in Rule 25(e). Nor is there any provision in Rule 25(¢) which incor- porates Rule 25(a) into Rule 25(c). The two Rules are completely separate, as respondents correctly say (p. 6). Rule 25 is divided into four sections headed as follows: (a) ‘‘Death’’; (b) ‘‘Incompetency’’; (c) ‘‘Transfer of Interest’’; and (d) ‘‘Public Officers; Death or Separation from Office.’’ An examination of Rule 25(a) (death provision) shows that the word ‘‘substitution’’ is there used as meaning the substitution of a deceased party by his ‘“successors or [legal] representatives ;’’ and the penalty clause provides that if such ‘‘substitution’’ is not made ‘‘by the successors or representatives of the deceased party,’’ then ‘‘the action shall be dismissed AS TO THE DECEASED PARTY.” (Emphasis added.) Had the Advisory Committee drafting this Rule intended that Rule 25(c) (transfer of interest provision) should include and apply to transferees in inter- est of a dead party, they surely would have said so, in clear and specific language. In other words, it is plainly contemplated by Rule 25(a) (death provision) that the ‘‘substitution’’ there referred to ae is a substitution in which the duly appointed legal repre- sentatives of the deceased party, or his successors in in- terest resulting from his death, shall have the right, within two years of such party’s death, to come in and prosecute or defend the action for the benefit of the estate or the heirs of the deceased party. The only penalty provided in } Rule 25(a) (death provision) is that, if this is not done within two years, ‘‘the action shall be dismissed AS TO THE DECEASED PARTY.’’ (Emphasis added.) It will be particularly noticed that there is in Rule 25(a) (death provision), which says that under such circum- ) stances, that is, the death of a party and failure to sub- : stitute his legal representatives or heirs within two years, q ‘¢the action shall be dismissed’’, no penalty as to any party other than the deceased party. Petitioner’s motion for substitution, on the other hand, was made under Rule 25(c) (transfer of interest provision), which expressly provides that ‘‘the action may be continued by or against the original party’’ in the event that there shall be any voluntary ‘‘transfer of interest,’’ (as distin- euished from an involuntary transfer resulting from death of a party); and that in that event the transferee may be ‘‘oubstituted in the action or joined with the original party.’’ (Emphasis added.) Thus the word ‘‘substitution’’ has an entirely different meaning in Rule 25(c) (transfer of interest provision), which has no relation whatever to the death of a party, but relates exclusively to a voluntary transfer inter vivos; and is not the type of ‘‘substitution’’ which is contemplated under Rule 25(a) (death provision), which relates exclu- sively to the involuntary transfer resulting from the death of a party. The ‘‘substitution’’ contemplated in Rule 25(c) (transfer of interest provision) assumes that the transfer shall he by some voluntary means, in contrast to the i- _ 11 voluntary legal transfer to a decedent’s representatives or heirs-at-law referred to in Rule 25(a) (death provision) ; for in Rule 25(c) it is made plain that if all of the trans- feror’s interest has not been voluntarily transferred to the transferee, then the transferee shall not be ‘‘substituted”’ for but shall be ‘‘joined with the original party.’’ The case of Individual Drinking Cup Co. v. Lily-Tulip Cup Corp., 15 F. Supp. 393, clearly supports the foregoing statements. In that case, the plaintiff corporation trans- ferred pendente lite its interest to its transferee and then was dissolved; such dissolution being the equivalent of the death of an individual party litigant. It was nevertheless held that the voluntary transferee pendente lite was en- titled to be substituted for the plaintiff and to continue the ‘litigation. See also Irving Airchute Co. v. Switlik, 26 F. Supp. 329, Myers v. Canton National Bank, 109 F. 2d 31, allowing a substitution by a transferee pendente lite on appeal to the Circuit Court of Appeals. The Drinking Cup Co. case cites and relies upon Ross v. City of Ft. Wayne, 63 F'. 466, which summarizes many earlier cases to the same effect. George W. Jackson, Inc. v. Friedstedt, etc., Co., 159 F. 496. The case of Anderson v. Yungkau, 329 U. S. 482, deals exclusively with Rule 25(a) (death provision); and has nothing whatsoever to do with Rule 25(c) (transfer of in- terest provision). It cannot effectively be argued, there- fore, that this Court held in the Anderson case that Rule 25(c) (transfer of interest provision) should have incor- porated in it by judicial fiat (for the rule actually contem- plates no such limitation) a condition to the effect that a transferee in interest cannot be ‘‘substitnted”’ or ‘‘joined,’’ unless the transferor is still alive (or, if a corporation, is still undissolved) at the time when the transferee’s motion is made, or unless the motion is made within the two-year limitation appearing only in Rule 25(a) (death provision). 12 | Respondent’s brief concedes (p. 6) that Rule 25(c) con- tains no reference whatsoever to the death of a party. It correctly says: ‘“‘The term ‘deceased party’ nowhere appears in Rule 25(c).’’ By this concession it must also be conceded that the Ander- | son ease has no applicability to the issue on this appeal. III. ; The whole basis of respondents’ argument under Point III (p. 6-7) is that: ‘‘The petitioner sought to adopt Hof- ? heimer’s complaint in its entirety to recover the entire res, whereas petitioner himself claims no more than one-third thereof.’’ Respondents then argue (p. 7) that petitioner’s eases do not hold ‘‘that an assignee of part of a res may sue to recover the entire res.’’ These statements are without the slightest foundation in fact. Both ‘‘Plaintiff’s Amended and Supplemented Complaint, as Further Amended and Supplemented’’ (Tr. 24-5) and plaintiff’s affidavit in support of his motion to be substituted (Tr. 17-24) state flatly that plaintiff is su- ing only for his one-third of the stock originally claimed by Reka Goldberg Hofheimer, the original plaintiff herein. Respondent’s amendment to the complaint alleges: ‘This plaintiff [petitioner] is the assignee and own- er of an UNDIVIDED ONE-THIRD (1/3) of fifty (50) shares of common, and twenty (20) shares of preferred, stock of, and other interests in, the Hump Hair Pin Manufacturing Company, a West Virginia corporation, and Chain Store Products Corporation, a Delaware corporation, and their respective subsidi- aries and affiliates, and certain claims against them, their officers, agents, and others, all of which hereto- fore were owned by Reka Goldberg Hofheimer, the original Plaintiff herein’’ (Tr. 24). (Emphasis added.) Sos. PELE SEES PIE ES =a) ERROR aaa aie 13 Petitioner’s affidavit states that petitioner ‘tis the sole and absolute legal and equitable owner of an UNDIVIDED ONE-THIRD (1/3) of all the afore- said common and preferred stock, together with a like proportion of the additional stock claimed by Plaintiff (Reka Goldberg Hofheimer) and of all other of Plain- tiff’s claims, as set forth in said Amended Complaint”’ (Tr. 18-19). (Emphasis added.) The statement in respondents’ brief (p. 6-7), that peti- tioner cannot be substituted because he claims the whole of the stock claimed by the original plaintiff, Reka Goldberg Hofheimer, is completely untrue. All that petitioner claims is his one-third of the preferred and common stock assigned to him as transferee pendente lite, as the foregoing quotations from petitioner’s plead- ings incontestably show. Many cases support petitioner's right to become a party and carry on the litigation under such circumstances. Friedman v. Harris, 158 F. 2d 187: Kellogg v. Winchell, 273 F. 745; Woodbury v. Andrew Jer- gens Co., 69 F, 2d 49; Patrick v. Leach, 17 F. 476; Universal Ou Products Co. v. Standard Oil Co. of Ind., 1 F. Supp. 612; Walker v. Hartford Realization Co., 74 F. 2d 56; Byram v. Miner, 47 F. 2d 112. It will be noticed that none of the decisions of this Court and the Cireuit Courts of Appeal cited in petitioner’s Peti- tion for Certiorari (p. 7-8) are contested by respondents. These cases show that the statements in the opinion of the Court of Appeals in the case at bar, to the effect that peti- tioner could not be substituted as sole plaintiff because ‘‘he is not the owner of the entire res involved (Tr. 50)”’ and because ‘‘he was not an assignee of the whole res (Tr. 50)’’, are without the slightest merit, and are in direct con- flict with all of the cases cited on pages 7 and 8 of peti- tioner’s Petition for Certiorari. 14 CONCLUSION. Respondents do not deny that this Court will grant certiorari in eases involving the true and proper construc- tion of the Federal Rules of Civil Procedure, including Rule 25(¢), which is the question here involved, Especially will this Court grant certiorari where a litigant has been deprived of his day in court upon jurisdictional matters which do not appear in the Federal Rules. Respondents’ brief is soley directed to an effort to show that there is no conflict between the ‘‘opinion’’ (as disting- uished from the ‘‘decision’’) in the case at bar, on the one hand, and the Dryden and Hood eases, on the other hand. But it is not necessary for petitioner to show any such conflict, although it clearly appears, for the reasons above stated, that such a conflict does exist. This Court has made it plain that it will grant certiorari whenever a proper construction of the Federal Rules of Civil Procedure in general, and particularly Rule 25, as in the Anderson ease, is involved. Not only is it of utmost importance that there may be uniformity in the holdings of the Federal Courts as to jurisdiction: but this Court’s interpretation of the Federal Rules of Civil Procedure in and of itself is sufficiently important to the effective opera- tion of the Federal Rules throughout all the District Courts of the United States to warrant granting certiorari in this case. Wherefore, petitioner respectfully submits that this Court should grant a rehearing and reconsider its order denying certiorari herein. Respectfully submitted, CHarLEs RatpH JOHNSTON and Hector A. Brovt.1et, Attorners for Petitioner. LSE) MO LY oP ERT EES OS oS VE RRL RAPA TAR aie tegare PI EE o O ee Supreme Court of the United States Ocroser Term, 1949. No. 118 CHARLES RALPH JOHNSTON, Petitioner, Us. DAVID McINTEE, Erc., Respondents. RESPONSE TO PETITION FOR REHEARING. Ciaupe A. Rorn, Harry E. Smoor, GoTTLigsB AND SCHWARTZ, Attorneys for The Hump Hairpin Manufacturing Company, a cor- poration, and Chain Store Prod- ucts Corporation, a corporation, respondents. Lovis M. MantrynBanp, Gerorce L. SIEGEL, Arvey, Hopes & MantTynBanp, Attorneys for David Mclntee, Theodor Lange, Irving Richard Green and Ruth K. Goldberg, individually and in the capacities sued, respondents. THE GUNTHORP. WARREN PRINTING COMPANY, 210 WEST JACKSON, CHICAGO enh Ae ls, ARN ES NAR IRAE Di ADA RSET WERT DEG: tat PERMA RT IIIS LB BES meee: SELLER RABI RR ONS ROO Rte SMM + eg A RR | IN THE Supreme Court of the United States Ocroser TERM, 1949. No. 118. CHARLES RALPH JOHNSTON, Petitioner, vs. DAVID McINTEE, Erc., Respondents. RESPONSE TO PETITION FOR REHEARING. The petition for rehearing fails to ‘‘state grounds which are confined to intervening circumstances of substantial or controlling effect or to other substantial grounds available to petitioner although not previously presented’’ as re- quired by Rule 33 of this Court. Further, the certificate of counsel supporting the petition for rehearing fails to certify that the petition is restricted to the grounds above specified, as required by Rule 33. The points set forth in the petition for rehearing and also in the petitioner’s supporting brief were made in the petition for certiorari and in the brief supporting that petition, and were answered by respondents in their opposing brief. 2 For this reason the petition for rehearing should be denied. Respectfully submitted, Ciaupe A. Roru, Harry E. Smoot, Gorruigs AND SCHWARTz, Attorneys for The Hump Hairpin Manufacturing Company, a cor- poration, and Chain Store Prod- ucts Corporation, a corporation, respondents. Louts M. MantynBanp, Grorce L. Srecet, Arvey, Hopes & MantynsBanp, Attorneys for David Mclntee, Theodor Lange, Irving Richard Green and Ruth K. Goldberg, individually and in the capacities sued, respondents. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0212%3A3. Public record. Not legal advice.