Petition for A Writ of Certiorari — Remington Rand, Inc. v. Societe Internationale pour Participations Industrielles et Commerciales, S. A.

CHARLES ELMUnL C

IN THE

Supreme Court of the United States

OcrosEr TERM, 1951.

No. ] 48

Remincton Ranp Inc., Intervenor-Petitioner,

against

Soctete INTERNATIONALE Pour Particrpations INDUSTRIFL-

LES ET ComMERCcIALES, 8. A. Erc. (Interhandel),

Plaintiff-Respondent,

and

J. Howarp MoGratu, Attorney General of the United States

as Successor to the Alien Property Custodian, and

Georoia Negsz Cuark, Treasurer of the United States,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

—__——-

Wiw1am P. MacCracken, Jr.,

Attorney for Petitioner.

Of Counsel:

Ursan A. Lavery,

Wiu1am W. Barron,

Frank C. Srerck.

Press or Byron S. Apams, Wasxincron, D.C.

PRS oar sneer are mean cpa STEROL ATTIRE EOS ERATE WORE ARNT

Ps PREIS ULL G YES Si LATION TN HORT NT

INDEX

Page

Se IIE 5 os aaruhe4 eh edhi ceenkveukonenEleds 2

5 ia Sv atiudua be bankeuceasuneceeeneees 2

St INNS 5.4.0 iv ndawnn Vdecdadeeeccuawanas 2

Btatete Gnd rules IVOIRE ow... occ ec ecaiorsvcussecs 3

NN gir oct washousnessnckesnens sos aeons 5

SONOS TOE UORMTING WET oc oss cova see kicweincsees 8

GL wii wk hiv'g dda hha 5 4uee eens eee eens 22

CITATIONS.

CasEs:

Fg hee Re: en een 10

Buls of Exceptions, In re, 37 F. 2d 849 ............ 22

ee pte SS er eran 11

Bruckman v. Hollzer, 152 F. 2d 730 ................ 9

Canister Co. v. National Can Corp., 3 F.R.D. 279 .. 10

Chisholm v. Cissel, 12 App. D. C. 180 ............. 21, 22

Cohen v. Beneficial Indus. Loan Corp., 337 U. 8. 541 18

Container Co, v. Carpenter Container Corp., 9 F.R.D.

Op Kskkenk eae Cee ewe kee cease on owe oad 9

David v. District of Columbia, 187 F. 2d 204 ........ 8, 20

Dickinson v. Petroleum Conversion Corporation, 338

he ere Terre re oer rT yee een 9, 18, 20

Duke Power Co. v. Greenwood County, 299 U. S. 259 12

Etten v. Kauffman, 179 F. 2d 302 ................ 19, 20

Flegenheimer v. Manitoba Sugar Co., 182 F. 2d 742

19, 20

Goldsmith v. Valentine, 35 App. D. C. 299 .......... 22

Heittmuller v. Stokes, 256 U. S. 359 ................ 21

Holland Banking Co. v. Continental Nat. Bank, 9 F.

WG MI Go 2 Shaadi bane ned edmdna ake aces 11

Kaufman & Ruderman Inc, v. Cohn & Rosenberger,

BEE Wg PE a an 0 be eerie cab ena'esews con 19, 21

Leong Kim Wai v. Burnett, 23 F. 2d 789 ........... 11

Michigan Insurance Bank v. Eldred, 143 U.S. 293 .. 22

Miller v. American Bonding Co., 257 U.S. 304...... 10

Radio Corp. of America v. Federal Trade Commis-

Se Fe Me a ka 6 6h eos ee cka cans 12

Rickenbacher Transp. v. Penn, R. Co., 3 F.R.D. 202 10

Rivkin, In re, D. C. Conn. 216 F. 218, 999 RG hac 11

Robinson Brothers and C. Inc. v. T2 ygart Steel Prod-

ucts Co., 184 F. 2d 534

Pe

Ate

Rs: mese si Og NG SERENE ARMED LET ROE YOLEN EY A * wk SY ANC TS a aA I A le a

’

ii Index Continued.

Page

Roemer ~. Simon, 91 U.S. 149 ........... ccc ce eee 21

Rothschild v. Marshall, 51 F. 2d 897 .............. 22

Shokuwan Shimabukuro v. Higeyoshi Nagayama, 140

ok PR ee eee regres 8, 16

Southern Shipyard Corp. v. The Tugboat Summitt,

RI eee nen 11

O. &. ¥. Qutek, 100 F. B0 BES... .. 2.2 cece ecees 8,13

OU. &. v. Beecaeds, 174. BAGG... .. 2. 5c ec ences 8, 16

U.S. v. Socony- Vacuum Oil Co., 310 U. S. 150, 236 .. 15

Waters v. Kings County Trust Co.,

144 F. 2d 680, certiorari denied.

23 U. S. 769; rehearing denied

v2 Ani ee ane _ 13

Willard Helburn Inc. v. Spiewak, 180 F. 2d 480 . 17

Winsor v. Dawmit, 179 F. 2d 475 .............0005 19

STATUTES:

Shop book rule, 28 U.S. C., See. 1732 ............ 3, 9, 13

Trading with the Enemy Act. See. 9,50 U.S. C. App.

Sec. SERS eek i a ea 5

FeperaLt Ruues or Crvin Procepure:

Rule 42(b) Separate Trials .................00- 8, 9, 10

Rule 43(a) Evidence: Form and admissibility

3, 8, 12, 17

Rule 54(b: Judgment upon Multiple Claims . .2, 3,7, 8, 9,

10, 17, 18, 19, 20

Rule 60(a) Clerical Mistakes ................... 3, 8 21

MISCELLANEOUS:

ea ie a ia cig cing n ewe’ 23

Docket entries in trial court ..................... 23-27

Hearings before the subcommittee on Appropria-

tions, House of Representatives, subeommittee on

the Department of Justice, (1951) pp. 10,15 ..... 11

3 Barron & Holtzoff, Federal Practice and Proce-

eS RASS op aS 6 Siete 9, 10

ee eee ee 18

Clark, Experience under the Amendments to the Fed-

eral Rules of Civil Procedure, 1950

Wigmore, Evidence (3d Ed.)

i nite Seta Oaks kOe wae swe awdwiks aan

Se VNaGn veda wahddenaberesethanka ses

IN THE

Supreme Court of the United States

OcrosEeR TERM, 1951.

No.

Remincton Ranp Inc., Intervenor-Petitioner,

against

Societe INTERNATIONALE Pour Participations INDUSTRIEL-

Les ET CoMMERCIALES, S. A. Ec, ( Interhandel),

Plaintiff-Respondent,

and

J. Howarp MoGrartu, Attorney General of the United States

as Successor to the Alien Property Custodian, and

Grorcia Neese Cuark, Treasurer of the United States,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Remington Rand Inc., respectfully prays that

a writ of certiorari issue to review the judgment of the

Court of Appeais for the District of Columbia entered in the

above entitled cause March 29, 1951. (R. 403).

—— . : a 2 VET ATES RTL ENN Ne

’

2

OPINIONS BELOW

The decision of the Court of Appeals (R. 400) is not re-

ported. The memorandum of the trial court (R. 26) is not

reported.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S. C.,

See. 1254(1).

QUESTIONS PRESENTED

1. Whether this Court should exercise its power of super-

vision over the Court of Appeals for sanct’oning departures

from the usual and accepted course of judicial procedure—

a. In affirming the judgment and thereby approving the

trial court’s sua sponte order summarily requiring an im-

mediate and separate trial of intervenor’s claim which

never would have required trial if plaintiff should fail in

the main action as yet untried? (R. 396)

b. In not correcting the trial court for basing its order

for separate trial upon unproved, unfounded, scandalous

and impertinent suggestions of counsel that the property

involved was ‘‘perishable’’ and that intervenor had ‘‘filed

something in the nature of a strike suit’’?? (R. 396)

e. In accepting jurisdiction despite the fact that, without

leave of the appellate court, the trial court entered a nunc

pro tunc order in a belated effort to comply with Rule 54(b)

of the Federal Rules of Civil Procedure five months after

the appeal was perfected? (R. 413-414).

d. In misstating the record and erroneously assuming (1)

that the judgment appealed from was final; (2) that the

trial court properly amended its judgment when in fact it

had lost jurisdiction by reason of the appeal (R. 400); (3)

that the trial of the main action awaited the outcome of this

appeal (R. 400); (4) that the trial court’s findings of fact,

which were contrary to conclusive and uncontradicted

3

written and oral evidence, were not clearly erroneous; and

(5) that other erroneous rulings in excluding and admitting

evidence were harmless? (R. 402).

2. Whether the decision of the Court of Appeals affirming

the judgment and thereby approving the exclusion by the

trial court of the Wehrli Memorandum is (a) in conflict

with decisions of other Courts of Appeals on the same mat-

ter; (b) contrary to 28 U.S. Code, See. 1732; and (¢) in dis-

regard o: Rule 43(a)?

3. Whether a judgment dismissing a complaint in inter-

vention can become final only by compliance with Rule

54(b); and whether this Court should settle this hitherto

unanswered and crucial question of Federal law which is

causing conflict among the courts of appeals and hardship

to litigants?

4. Whether the trial court, after appeal, in violation of

Rule 60(a) and without leave of the appellate court, had

jurisdiction to enter its nunc pro tune order correcting its

judgment in an effort to make it final; and whether the de-

cision below, accepting jurisdiction to review the judgment,

is in conflict with decisions of other courts of appeals?

STATUTES AND RULES INVOLVED

28 U.S.C. § 1732 provides:

Sec. 1732. Record made in regular course of busi-

ness.

In any court of the United States and in any court

established by Act of Congress, any writing or ree-

ord, whether in the form of an entry in a book or

otherwise, made as a memorandum or record of any

act, transaction, occurrence, or event, shall be ad-

missible as evidence of such act, transaction, occur-

rence, or event, if made in regular course of any

business, and if it was the regular course of such

business to make such memorandum or record at the

time of such act, transaction, occurrence, or event or

within a reasonable time thereafter.

4

All other circumstances of the making of such

writing or record, including lack of personal knowl-

edge by the entrant or maker, may be shown to affect

its weight, but such circumstances shall not affect its

admissibility.

The term ‘business,’ as used in this section in-

cludes business, profession, occupation, and calling

of every kind. June 25, 1948, c. 646, 62 Stat. 945.

Rule 42(b) of the Federal Rules of Civil Procedure

provides:

(b) Separate Trias. The court in furtherance of

convenience and to avoid prejudice may order a

separate trial of any claim, cross-claim, counterclaim

or third-party claim, or any separate issue or of any

number of claims, cross-claims, third-party claims,

or issues.

Rule 43(a) provides:

(a) Form anp Apmissisiuity. In all trials the tes-

timony of witnesses shall be taken orally in open’

court, unless otherwise provided by these rules. All

evidence shall be admitted which is admissible under

the statutes of the United States, or under rules of

evidence heretofore applied in the courts of the

United States on the hearing of suits in equity, or

under the rules of evidence applied in the general

courts of general jurisdiction of the state in which

the United States Court is held. In any case, the

statute or rule which favors the reception of the evi-

dence governs and the evidence shall be presented ac-

cording to the most convenient method prescribed in

any of the statutes or rules to which reference is

herein made. The competency of a witness to testify

shall be determined in like manner. (Emphasis sup-

plied.)

Rule 54(b) provides:

(b) Jupcment Upon Mv ttipie Ciarms When more

than one claim for relief is presented in an action

whether as a claim, counterclaim, cross-claim, or

third-party claim, the court may direct the entry of

a final judgment upon one or more but less than all

of the claims only upon an express determination

that there is no just reason for delay and upon an

4)

express direction for the entry of judgment. In the

absence of such determination and direction, any

order or other form of decision, however designated,

which adjudicates less than all the claims shall not

terminate the action as to any of the claims, and the

order or other form of decision is subject to revision

at any time before the entry of judgment adjudicat-

ing all the claims. (Emphasis supplied.)

Rule 60(a) provides:

(a) CuericaL Mistakes: Clerical mistakes in judg-

ments, orders or other parts of the record and errors

therein arising from oversight or omission may be

corrected by the court at any time of its own initia-

tive or on the motion of any party and after such

notice, if any, as the court orders During the pen-

dency of an appeal, such mistakes may be corrected

before the appeal is docketed in the appellate court,

and thereafter while the appeal is pending may be

so corrected with leave of the appellate court. (Em-

phasis supplied.)

STATEMENT

This action was brought by the respondent, Societe Inter-

nationale Pour Participations Industrielles et Commer-

ciales, S.A., Ete., hereinafter referred to as Interhandel,

under Section 9 of the Trading With the Enemy Act (50

U.S.C. App. See. 9) to recover certain vested property in-

cluding more than 90 per cent of the stock of General Ani-

line and Film Corporation, hereinafter referred to as GAF.

Petitioner was permitted to intervene in that proceeding

to establish its right to purchase the GAF stock from In-

terhandel for the sum of 25 million dollars cash, if, as and

when Interhandel recovered the stock and other assets

claimed by it.

Both Interhandel and the Office of Alien Property op-

posed petitioner’s intervention and sought to force this

petitioner out of the case by numerous dilatory and harass-

ing tactics, including a petition for a writ of prohibition,

RELIES OPS MP RE LRDET ESLER EE TRE IIS ET LIS IOS IIT EN AE aN

6

which was denied, and an appeal, which was dismissed on

motion.!

These tactics included unwarranted assertions that the

property of GAF was ‘‘perishable’’ and that ‘‘Intervenor

had filed something in the nature of a strike suit’. (R.

396). These induced the trial court sua sponte to sever the

intervenor’s claim and set it down for immediate trial be-

fore answers had been filed either to the complaint of inter-

venor or to the main suit.

Petitioner was allowed scant time to prepare for a trial

involving intricate questions of Swiss law, the translation

of numerous exhibits, including Interhandel’s corporate

minutes and the taking of depositions both here and abroad.

The trial began on February 6, 1950, and concluded March

28, 1950. In mid-trial the court granted a recess in order

that depositions might be taken in Paris.

1 These included the following :

July 25, 1949, Leave granted to file complaint in intervention (Orig.

R. 2091) but entry of order deferred 10 days to permit

application to Court of Appeals for writ of prohibition

(Orig. R. 2105).

Aug. 3, Petition for writ of prohibition filed. (Orig. R. 2091).

See intervenor’s memorandum (Orig. R. 2090-2098).

Aug. 16, 1949, Writ of Prohibition denied by Court of Appeals

(Orig. R. 2092).

Oct. 26, 1949, Motion of Office of Alien Property for order that

defendants and plaintiffs are entitled to settle action re-

gardless of right which intervenor has or asserts to con-

trary (R. 393).

Dec. 14, 1949, Motion to dismiss complaint in intervention (Orig.

R. 2110).

Dee. 21, 1949, Motion denied (R. 394).

Dee. 30, 1949, Office of Alien Property moved orally for a re-

hearing (Orig. R. 2127).

Jan. 4, 1950, The Office of Alien Property filed a written motion

for a ‘‘reconsideration’’ which was denied Jan. 18,

1950. (R. 398.) The defendants appealed to the Court

of Appeals (C. A. No. 10650) but their appeal was dis-

missed on petitioner’s motion.

Jan. 18, Motion to dismiss complaint in intervention (Orig. R.

2140).

Jan, 23, 1951, Mandate of Oct. 30, 1950, from U. 8. C. A. dismis-

sing appeal on order of Dec. 21, 1949; filed. (Docket

Entry App. p. 27 post.)

7

In the course of the trial the intervenor introduced nu-

merous written exhibits, Nos. 1-55 (R. 319-391), in order to

prove the existence of an oral contract, valid under the law

of Switzerland, where it was made.

Intervenor’s Exhibit No. 17 A.A. (R. 334) is from the

minutes of a two-day meeting of Interhandel’s Board of

Directors and is devoted entirely to a discussion of the

matter of making a binding offer to the intervenor for the

sale of GAF shares.

These minutes of May 18 furnish the background as well

as the authority for Interhandel’s binding offer of June 6,

1946, to sell its GAF shares to petitioner for $25,000,000

(R. 336, 337).

Negotiations followed. The intervenor made a counter-

proposal (R. 337) to accept the offer at a price of twenty-

five million dollars ($25,000,000). This counter-proposal

the Board of Interhandel found acceptable (R. 337).

After many conferences Interhandel, on June 6, 1946,

made its binding oral offer or declaration, the conclusive

written evidence of which is the Wehrli memorandum. (In-

tervenor’s Ex. 55, R. 391). The trial court refused to admit

this memorandum in evidence (Orig. R. 2318). Dr. Ulrich

Wehlri is an official of the Union Bank of Switzerland (R.

148) which represented intervenor in Interhandel confer.

ences (R. 150). His immediate superior in the bank was

Mr. F. Richner, general manager (R. 148). It was Rich-

ner’s regular and invariable practice to require his assis-

tants to furnish him with a memorandum made in the regu-

lar course of the business of the Union Bank of Switzer-

land. (R. 146, folio 991, 992) (Orig. R. 2278, 2281). The

memorandum was a true and accurate account of what was

said at the conference of June 6, 1946 (R. 147).

This offer was accepted May 5, 1947 by the Remington-

Rand group (R. 326-327) before the time limit fixed by

Interhandel’s notice of April 21, 1947 had expired.

The trial judge in announcing his decision requested

counsel to prepare findings of fact and conclusions of law

and judgment. (R. 26). Those submitted by counsel for

paige Sat, Meta’

Dictation CEENS

8

Interhandel were adopted verbatim and almost im toto (R.

31-37). s

The trial court rendered judgment dismissing the peti-

tioner’s complaint in intervention (R. 37-38) but made no

direction under Rule 54(b) for the entry of final judgment

and no express determination that there is no just reason

for delay. Nevertheless petitioner appealed (Orig. R. 2347;

docket entry, App. p. 26, docket entry).

The trial court, after the case was set for argument in

the appellate court, entered a nunc pro tunc order on Janu-

ary 4, 1951, (R. 413-414) endeavoring thereby to make final

its judgment of April 26, 1950.

The appellate court in affirming the judgment not only

ignored these errors but misread the record, as shown by

its misstatements of the facts when it said:

Entry of the judgment was directed upon an express

determination by the court that there was no just rea-

son for delay (Fed. R. Civ. P., 54(b)).2. The main ac-

tion yet untried awaits the outcome of this appeal (R.

400).

REASONS FOR GRANTING THE WRIT

The decision below is erroneous. It violates Rules 42(b).

43(a), 54(b) and 60(a) of the Federal Rules of Civil Pro-

cedure. It is in direet conflict with the decisions of the

Second Cireuit in Waters v. Kings County Trust Co., 144

F.2d 680; cert. denied 323 U.S. 769; rehearing denied 323

U.S. 817, and of the Third Cireuit in U. S. v. Quick, 128

EF. 2d 882, and U. 8S. v. Riecardi, 174 F. 2d 883. Nor ean the

decision here be reconciled with the court’s own holdings

in David y. District of Columbia, 187 F.2d 204, and Sho-

kunaan Shimabukuro v. Higeyoshi Nagayama, 140 F. 2d 13.

In addition, the affirmance of the judgment so far sanc-

tioned such departures by the District Court from the usual

and accepted course of judicial proceedings as to call for

the exercise of the supervisory power of this Court.

°This statement is completely inaccurate unless this Court

should find that the nune pro tune order of the trial court was

within that court’s power.

Za i

The case also presents important questions of federal

law, one of which involves the construction and proper

application of 28 U.S.C. Sec. 1732, “‘record made in regular

course of business’’, which has not been but should be de-

cided by this Court.

Another involves the question whether a judgment dis-

missing a complaint in intervention is final and appealable

absent compliance with Rule 54(b). This question was left

unsettled by this Court in Dickinson v. Petroleum Conver-

sion Corporation, 338 U.S. 507. This court should resolve

the doubt and uncertainty that still impedes the adminis-

tration of justice in intervention proceedings.

I,

A. The trial court of its own motion prematurely ordered

an immediate, separate trial of intervenor’s claim for re-

lief. Proper procedure required a separate trial only in

the event that plaintiff should prevail in the main action.

- Interhandel of course cannot deliver to petitioner shares

{ of GAF held by the Office of Alien Property until Inter-

| handel’s right to the return of those shares is established

in this action. Therefore there was no purpose to be served

by the trial court’s order.

Rule 42(b) of the Federal Rules of Civil Procedure pro-

vides;

‘The court in furtherance of convenience or to avoid

prejudice may order a separate trial of * * * any sepa-

rate issue or any number of claims * * * or issues.”’

(Emphasis supplied.)

The rule is intended to further convenience and avoid

delay* and to serve the ends of justice.‘

‘“‘Tf a separate trial of part of the issues may make un-

necessary the trial of other issues, it is only reasonable to

33 Barron & Holtzoff, Federal Practice and Procedure, Sec. 943,

p. 664; Bruckman vy. Hollzer, 152 F. 2d 730.

* Container Co. v. Carpenter Container Corp., 9 F. R. D. 89.

10

follow the course which saves the time of the court and re-

duces the expense of the parties.’ This Court has said

that the separate trial of issues should be ordered only in

exceptional instances where there are special and persua-

sive reasons for departing from the usual practice of try-

ing all issues of a case at one time.®

In the case at bar the trial court might well have served

conversenee, saved expense and avoided prejudice by post-

poning toe trial of intervenor’s claim until after the trial

of the “pain aetion. Then, if the court rejected Interhan-

de\’s clasn for the return of the GAF shares, intervenor’s

claim would never have come to trial. But the trial court,

ignorine this clearly marked path, of its own motion, chose

another course. It ordered a separate and immediate trial

of the intervention issues. Thus, Rule 42(b) was misused

to produce precisely the consequences which the rule seeks

to avoid, namely, delay and inconvenience to all parties

and serious prejudice to the intervenor.

This initial departure from sound procedure set in mo-

tion a chain of bizarre events which, as will be seen, involved

the trial and appeal in a labyrinth of error. Without a sep-

arate trial of issues there would have been no separate judg-

ment; no occasion for an express finding of ‘‘no just reason

for delay’’ under Rule 54(b) ; no appeal; no makeshift nunc

pro tune order; and no question of jurisdiction.

B. The District Court’s order for a separate trial was

prompted by suggestions of counsel that the GAF prop-

erty required immediate protection ‘‘from deterioration or

loss’? and that intervenor ‘‘had filed something in the na-

ture of a strike suit.’’ (R. 396). The latter suggestion is

a gratuitous slander entirely unsupported by the record.

The other suggestion, that the property needed immediate

53 Barron & Holtzoff, See. 943, p. 665; Canister Co. v. National

Can Corp., 3 F.R. D. 279; Rickenbacher Transp. v. Pennsylvania R.

Co., 3 F. R. D. 202.

® Arnold v. U. S., for use of W. B. Guimarin & Co., 263 U. S. 427;

Miller v. American Bonding Co., 257 U.S. 304.

11

protection, is contrary to fact. GAF then, as now, was be-

ing successfully and profitably operated by a management

selected and instructed by the Office of Alien Property.”

It is important that a District Court should not act upon

mere suggestion or surmise. <A court acts upon evidence,

not upon guesswork or suspicion engendered by unsup-

ported and unfounded statements of counsel.

A trial is a judicial examination and determination of

the issues. Where the facts must be proved or submitted

to the Court, the judge cannot assume facts not generally

known, and in this regard cannot go further than a jury.

Brown vy. Piper, 91 U.S. 37; Leong Kim Wai v. Burnett,

23 F. 2d 789; In re Rivkin, 216 F. 218, 222. See also South-

| ern Shipyard Corporation v. The Tugboat Summitt, Inc.,

| 294 F. 284; Holland Banking Co. v. Continental Nat. Bank,

9 F. Supp. 988.

| C. The trial court without leave of the Court of Appeals

entered its nunc pro tune order (R. 413-414) amending the

record five months after the appeal had been taken and

eleven days before it was argued.

This order was the exercise of a power beyond the juris-

diction of the trial court. The appeal had taken away the

District Court’s jurisdiction. Sole jurisdiction of the case

resided in the appellate court. This is too obvious to war-

“The Attorney General of the United States testifying before a

subcommittee of the House Committee on Appropriations, on Feb-

ruary 19, 1951, said in part, ‘“‘This is the largest company that

Alien Property has and is operating. We think the value of the

property can run anywhere from $60 million to $100 million. The

Government ought to dispose of the property as soon as it ean. It

should be put back into private hands.”’ (Hearings before the sub-

committee on Appropriations, House of Representatives, subcom-

mittee on the Department of Justice (1951, pp. 10, 15.)

Again in his testimony he said, ‘‘T would not hesitate to recom-

mend some type of settlement’? (p. 12). * * * “T anticipate that

the net profits of the company for the year 1950 will be in the

neighborhood of $5 million—#5 to #6 million (pp. 12,18,19). The

picture is continually improving but it is improving because of the

defense program and it ean he expected to go the other way when

this program is behind us.”’ (p. 12).

EET eg RPS DIR

12

rant extended discussion. The point will be treated briefly

in subdivision IV, p. 21, post.

D. The court below misread the record and erroneously

assumed (1) that the judgment was final; (2) that the

nunc pro tune order was proper; (3) that the trial of the

main action waits upon the outcome of this appeal (R.

401); (4) that other rulings excluding evidence were harm-

less (R. 402).

The error in deeming the judgment final is discussed in

subdivision III (p. 17, post); the nunc pro tunc order

in subdivision IV (p. 21, post); the error in excluding

the Wehrli memorandum in subdivision II immediately fol-

lowing.

More is unnecessary to demonstrate that the Court of

Appeals in affirming the judgment departed from the

usual and accepted course of judicial proceedings and so —

far sanctioned such departures by the District Court as to

call for the exercise of the supervisory power of this Court.

See Duke Power Co. v. Greenwood County, 299 U.S. 259;

Radio Corp. of America v. Federal Trade Commission, 71

S. Ct. 806. ;

In the case at bar, as in Duke Power Co. v. Greenwood

County, supra, ‘‘the climax of misunderstanding was

reached. * * * We thus have a situation in which both

courts have failed to act in accordance with the standards

of proper procedure.’’ Id. p. 267.

‘‘Delusive interests of haste should not be permitted to

obscure substantial requirements of orderly procedure.

There is no exigency here which demands that these re-

quirements should not be enforced.’’ Id. p. 267.

II.

The Decision of the Court of Appeals approving rulings

of the trial court which excluded evidence vital to the issues

is in conflict with the decisions of other courts of appeals

on the same matter; is contrary to Rule 43(a) of the Fed-

sous ie

a

eral Rules of Civil Procedure; and involves an important

question of Federal law which has not been but should be

settled by this court.

This discussion will be limited to the Wehrli memoran-

dum (Ex. 55, R. 391-3) which is convincing and conclusive

evidence of the terms and conditions of the oral contract

upon which petitioner relies. This the trial court excluded

(Orig. R. 1035). This the Court of Appeals held harmless,

if error (R. 403). The memorandum was made in the regu-

lar course of business (R. 146) at the express direction of

Mr. Richner, General Manager of the Union Bank of Swit-

zerland and pursuant to his invariable rule to require his

assistant, Dr. Ulrich Wehrli, to report conferences at-

tended (R. 153). The memorandum was prepared within

a day or two following the conference of June 6, 1950 (R.

152), and therefore was admissible as proof of the facts

recorded for two reasons.

1. It fully meets the requirements of 28 U.S.C. 1732,

commonly known as the ‘‘shop book rule’’.

2. It was a true and accurate memorandum recording the

past recollection of the witness and, therefore, if not in all

respects fulfilling the conditions of admissibility under

the ‘‘shop book rule’’, was admissible as ‘‘past recollection

recorded’’,

This memorandum was indeed not unlike the documentary

evidence held admissible in Waters v. K ings County Trust

Co., 144 F. 2d 680, certiorari denied, 323 U.S. 769, rehear-

ing denied, 323 U.S. 817.

The only prerequisite to the admissibility of a writing

under 28 U.S.C. Sec. 1732 is that the entries must have

been made in the usual course of business as the record of

acts or transactions then occurring. U. S. v. Quick, 128 F.

2d 832.

Therefore we submit that the exclusion of this evidence

was error and the holding of the court below that if error,

it was harmless, is in conflict with the decisions of the sec-

14

ond and third circuits. It also should be noted that the

question of the proper construction of 28 U.S.C. See. 1732

involves an important question of federal law which has

not been but should be decided by this Court. L

Before discussing the second reason or principle upon

which the Wehrli memorandum is admissible, a brief re- i

capitulation of its evidentiary background may be helpful.

Petitioner claims the right to purchase the GAF shares

under an oral contract which is valid under the law of

Switzerland (R. 107). The terms and conditions of this

contract are reflected in two documents: (1) the minutes

of Interhandel’s Board of Directors authorizing the June

1946 offer (R. 336-337), and (2) the Wehrli memorandum

of the conference of June 6, 1946 at which the proposal was

made (R. 391-393). These were the significant and con-

trolling documents with respect to the terms and conditions

of the contract.

Oral evidence at the trial, four years after the event,

was directed to the interpretation of the agreement; or

to its intended scope and effect; or to the acts and con-

duct of the parties which might disclose either that the con-

tract was not entered into or that its conditions were cc.

ditions precedent and were not performed. No evidence 1

the record contradicts the factual integrity of the Wehrli

memorandum. Its circumstantial trustworthiness is con-

vineing. The deposition of Richner (R. 147) that it was

a true and accurate record of the facts recorded likewise

stands uncontradicted.

Consequently the exclusion of this memorandum could

not possibly be harmless error.

We have shown, we think, that it was admissible under

‘ the ‘‘shop book rule’’ as a record made, kept and required

to be made and kept in the regular course of the business

of the Union Bank of Switzerland. But if by any technical

shortcoming it could be excluded under that rule, it should

have been received as the truthful and accurate record of

the facts of the conference made by the recorder within a

a

Phe Nie pak mde a aah em 6s ee on coat ee

SGC BARR RNR IEPA VIRESCENS ROMAL RS RESIDE LTP NIN _

15

day or two after the conference (R. 152, 153) when the

events were fresh in his mind.

We cannot expect a busy bank officer, four years later,

to accurately remember all the details of the conferences

attended. This was an important conference. Dr. Webhrli

testified, ‘‘I wanted to be precisely sure what was said on

that date in order to communicate it to the Remington

Rand group”’ (R. 154). The truthfulness of the memoran-

dum is admitted by Interhandel’s general manager, Ger-

mann, who was asked by the trial court (R. 251):

Is this (memorandum) an accurate summary or

statement of Interhandel’s declaration to Mr. Richner

and Dr. Wehrii on June 6, 1946 * * * ?

The witness: Yes, Your Honor. * * *

What tribunal would hesitate under these circumstances

to impute verity to such a memorandum? Who in later

years would prefer the uncertain and fallible recollection

of a witness to his written record made at the time of the

event?

Wigmore notes that historically there has been much

confusion in the decisions with respect to the admission or

rejection of a contemporaneous memorandum made by a

witness as a record of past recollection (3 Wigmore on

Evidence, 3d Ed. 1940, Sec. 734, p. 64). He then discusses

the practical requirement that the record must have be2n

made at about the time of the events recorded and the

tests of accuracy and identity that should be applied.

‘‘The cee which the use of a past recollection

rests * * * is clearly that of necessity. To reject such a

record would be to reject the best and frequently the only

means of arriving at the truth!’’ (Wigmore Sec. 738)

This Court in U. S. v. Socony-Vacuum Oil Co., 310 U.S.

150, 236, indicated accord with Professor Wigmore’s views

with respect to past recollection recorded and cited sec-

tion 761 of his work.

16

The holding of the Court below is squarely in conflict

with U. 8. v. Riccardi, C.A. 3d 1949, 174 F. 2d 883. In the

Riccardi case the opinion carefully distinguishes between

‘present recollection revived or refreshed,’’ and ‘‘past

recollection recorded.’’? There a witness was permitted

to refresh her recollection by using a memorandum of the

items of property which the accused was charged to have

stolen. Only one sheet of the original notes was available

and the witness was permitted to testify that she had made

a typewritten copy of the longhand notes as to the numer-

ous items stolen from her house, and one page of longhand

notes was admitted in evidence. The court said in part:

Since the purpose of the writing is to activate the

memory of the witness, there is always the possibility,

if not probability, that the writing will exert a strong

influence upon the direction of the memory, that is, the

nearer the writing to the truth the lesser the deviation

of the witness’ memory from the truth. (p. 888.)

In the Riccardi case the third circuit approved the rul-

ing of the District Court admitting the evidence and receiv-

ing into the record the sheet of longhand notes. In the

ease at bar, the court below approved the ruling of the

trial court excluding the evidence. Not only does the deci-

sion of the Court below conflict with the Riccardi decision,

but it is squarely in conflict with its own decision in Shoku-

wan Shimabukuro v. Higeyoshi Nagayama, App. D. C. 1944,

140 F.2d 13. There the circumstances were quite com-

parable. The witness testified that he had no present rec-

ollection of the facts at the time of the trial but that he

knew that the memorandum was true when he made it. The

court said:

* ** But the rule as to admissibility of books of ac-

count does not apply to a case where the witness who

made the entry testifies that he had no present recol-

lection of the facts they are offered to prove, but that

he knows the entries were true when he made them.

This is a form of past recollection recorded and is ad-

missible as such. (p. 16.) (Emphasis supplied.)

17

Rule 43(a) provides that ‘‘the statute or rule which fa-

vors the reception of the evidence governs.’’ By promul-

gating this rule, this Court established a more liberal rule

than theretofore obtained. Technical rules are no longer

effective to exclude trustworthy evidence if there is any

sound rule or reason for its admission.

Willard Helburn Inc. v. Spiewak, 180 F.2d 480, involved

a letter written by plaintiff’s treasurer to defendant, ap-

pellee. The letter confirmed a telephone call, and reported

the purchase of sheepskins for appellee. The District Court

admitted the letter but considered it simply a self serving

declaration not binding on defendant. The Court of Ap-

peals for the Second Circuit reversed the trial court for

not accepting the memorandum ‘‘as a timely written memo-

randum stating to the appellee the appellant’s understand-

ing of the oral contract they had made.’’ (p. 482).

We submit, therefore, that the exclusion of the Wehrli

memorandum violated Rule 43(a) and was contrary to 28

U.S.C. See. 1732. The court below accepted and approved

an obsolescent and outmoded rule and disregarded the

modern and salutary trend.

III.

The decision below in other respects is in conflict with

decisions of other United States courts of appeals and in-

volves an important question of federal law which has not

been but should be settled by this Court.

The amendment of Rule 54(b) of the Federal Rules of

Civil Procedure became effective March 19, 1948. This

rule fixes the standard by which the finality and appeal-

ability of a judgment is determined when that judgment

decides one or more but less than all of the issues of a case.

The rule is clear and precise. If the judgment is to be

final, the court must do two things: (1) it must make an

express determination that there is no just reason for de-

lay, and (2) it must make an express direction for the en-

try of judgment. In the absence of such determination and

Bass or

aes coy at erty

18

direction any order or other form of decision does not de-

termine the action as to any of the claims and the order

or other form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims.*

As this Court said in Dickinson v. Petroleum Conversion

Corp., (1950) 338 U.S. 507, the obvious purpose of this

amendment ‘‘is to reduce as far as possible the uncertainty

and the hazard assumed by a litigant who either does or

does not appeal from a judgment of the character we have

here. It provides an opportunity for litigants to obtain

from the District Court a clear statement of what that

Court is intending with reference to finality, and if such

direction is denied, the litigant can at least protect him-

self accordingly.’’

In the Dickinson case, supra, the judgment was rendered

before the effective date of Rule 54(b). The amended rule,

therefore, was not applicable. This Court in holding that

a judgment dismissing a complaint in intervention was final

and appealable, after noting the effect of the amended rule

on future cases, carefully limited its opinion to the par-

ticular case then under consideration.

Thus was left undecided an important question of fed-

eral law which has not been but should be settled by this

Court. The courts, the Bar, and litigants in federal courts

should not be left in doubt that the requirements of Rule

54(b) apply to separate judgments dismissing complaints

in intervention.

Circuit Judge Charles KE. Clark, reporter to the Advisory

Committee on the rules, makes this plain: *

While this decision, (Cohen v. Beneficial Indus. Loan

Corp., 337 U. S. 541) considered alone, still leaves the

important matter of appealability in too much uncer-

tainty for the comfort of counsel forced to take imme-

*3 Barron & Holtzoff, Federal Practice and Procedure, Sec. 1193,

p. 16.

8@ Clark, Experience Under the Amendments to the Federal Rules

of Civil Procedure, 1950, Revised Edition, Pamphlet, Federal Rules

of Civil Procedure and New Title 28, U. S. Code, pp. 20, 21. See

also, id., p. 8.

opp eC aRS aes

BEATE LOH TNR ETA IE AE IR RL SOR STEAL IRIN IETS AER HIE SSS TANT INE a A Fe RE BARA ERDAS HEN NRE Ra

19

diate actions, yet it does suggest a way out, indeed the

very way taken by the amendment to Rule 54(b); it is

perhaps regrettable that the Court did not seize the

opportunity to clarify the situation by pointing out the

interconnection. For that amendment (to Rule 54(b))

builds on the same underlying thesis as does the deci-

sion, but with the added purpose of affording counsel

some principle or presumption upon which they can

act without too great peril. Under it a court order

short of a judgment terminating all aspects of the liti-

gation is held interlocutory and subject to revision by

the judge unless he has made an express direction for

the entry of a final judgment upon a part of the litiga-

tion accompanied by an express determination that

there is no just reason for delay as to it. This does

j not, as has at times been suggested,” put in the hands

of the trial judge any improper or additional power;

it simply guarantees that his existing powers will be

exercised not inadvertently or by default, but openly

to the gaze of all who are interested. And it gives

scope for the proper operation of the undoubtedly

equitable Cohen principle in a way which does not

leave the parties in hopeless uncertainty.™

Judge Clark added this footnote:

Since the district court was always entitled to hold its

order subject to review until the entry of a final judg-

ment, this simply states a method of interpretation of

an otherwise ambiguous order. Except in the one in-

stance where a district judge has erroneously deter-

mined that there is no just reason for delaying the

entry of a final judgment as to some obviously inter-

locutory matter, there would thus seem no possibility

of question as to the district conrt’s acts.

The decision below, which assumed that the trial court’s

judgment dismissing the complaint in intervention was

final and appealable, is in conflict with the decisions in

Flegenheimer v. Manitoba Sugar Co., C.A. 2d, 1950, 182

FP. 2d 742; Etten v. Kauffman, C.A. 3d, 1950, 179 F. 2d 302:

Winsor v. Daumit, C.A. 7th, 1950, 179 F. 2d 475; and Kauf-

BI ARSENY ROA RL PRT OLN BEIT IT BI AI” EES DTU REN Tt RENE RG

20

man and Ruderman Inc. v. Cohn & Rosenberger, C.A. 2d,

1949, 177 F. 2d 849.

The case of Flegenheimer v. Manitoba, supra, decided

that an order dismissing a third-party claim was not final

and appealable.

The Etten v. Kaufman and Winsor v. Daumit cases, as

well as Robinson Brothers and Co. Inc. v. Tygart Steel

Products Co., C.A. 3, 1950, 184 F. 2d 534, all held that com-

pliance with the requirements of Rule 54(b) was an indis-

pensable prerequisite to the jurisdiction of the appellate

court. For lack of such compliance the appeal was dis-

missed in each of these cases.

Furthermore the decision of the court below is squarely

in conflict with its own holding in David v. District of Co-

lumbia, C.A. D.C. 1950, 187 F. 2d 204. There the court on

its own motion held that an order of the trial court dis-

missing a third-party complaint was not final or appeal-

able in the absence of an express finding of no just reason

for delay. This case was decided after the decision of this

Court in the Dickinson case. The contrary holding in the

case at bar is the more perplexing because one Circuit

Judge participated in both decisions of the Court of Ap-

peals.®

In the instant case, the Court below devoted one solid

hour to hearing argument on the question of its jurisdic-

tion (R. 399) and then made no further reference to the

question but assumed that the judgment was final and that

jurisdiction existed (R. 400).

This conflict, we submit, should be resolved by this Court,

and the Court below reassured that a separate order or

judgment dismissing a third-party claim or complaint in

intervention, is not final and is appealable only upon the

trial court taking the two steps required by Rule 54(b).

Here the petitioner, uncertain as to the finality of the

judgment entered after premature trial, appealed, although

°In the case at bar the appeal was heard by Circuit Judges

Edgerton, Proctor and Fahey. The appeal in David v. District of

Columbia was heard by Circuit Judges Clark, Bazelon and Fahey.

21

the trial court had failed to take the steps required by the

rule.

IV.

The final question here presented is related to the ques-

[ tion last discussed. In the case at bar the trial court made

no finding of ‘‘no just reason for delay’? when the judg-

ment was rendered. (R. 37-38). Five months later, after

the appeal had been taken and was ready to be argued, the

trial court entered a nunc pro tune order making a finding

that there was ‘‘no just reason for delay.’’ (R. 413-414).

We submit that under Rule 60(a) the trial court, without

leave of the appellate court, had no power to amend its

judgment by making the finding that there was no just rea-

son for delay.

Such an order in essence was but an attempt to give to

the Court of Appeals jurisdiction where otherwise no jur-

isdiction existed. The Court of Appeals by its decision ac-

cepted the regularity of the order, assumed that the judg-

ment was final (R. 400), and thereby gave sanction and

validity to the nunc pro tunc order.

The decision of the Court below is in conflict with the

decisions of other courts of appeals and probably in con-

flict with the applicable decisions of this Court.

This Court in Hettmuller v. Stokes, 256 U.S. 359, held

that a court is without jurisdiction to take any further ae-

tion with respect to its judgment after an appeal therefrom

has been perfected. In Roemer v. Simon, 91 U.S. 149, this

Court said that the proper practice is to apply for remand

of the record for further proceedings in the trial court.

This is the procedure which this Court has preseribed by

Rule 60(a) for just such occasions. Kaufman & Ruder-

man Inc. v. Cohn & Rosenberger, C.A. 2d 1949, 177 F. 2d

849,

Upon the taking of the appeal, all power and control

over the right to prosecute an appeal terminate so far as

the trial court is concerned. Chisholm v. Cissel, 12 App.

Rte core.

eee |

acicesnccks

22

D.C. 180; Goldsmith v. Valentine, 35 App. D.C. 299; Roths-

child v. Marshall, 51 F. 2d 897. The trial court’s jurisdic-

tion cannot be restored by a munc pro tunc order. In re

Bills of Exceptions, 37 F.2d 849; Michigan Ins. Bank v.

Eldred, 143 U.S. 293.

Therefore the decision of the Court below is in conflict

with the applicable decisions of this Court; in conflict with

the decisions of other courts of appeals; and in conflict

with its own former decisions.

CONCLUSION.

The opinion of the Court below fails to disclose the want

of jurisdiction in that Court or in the district court. It

fails to reflect its own departures from the usual and ac-

cepted course of judicial proceedings, or those departures

by the trial court which the judgment of affirmance sanc-

tioned. We recognize the fact that this Court reviews de-

cisions and not opinions. We suggest, however, that this

Court will not permit its power of review to be circum-

seribed by failure of the opinion to chart its errancies or

those of the trial court to which it gave approval by af-

firmance.

For the foregoing reasons, it is submitted that this peti-

tion for a writ of certiorari should be granted.

Respectfully,

Wuuiam P. MacCracken, JR.,

Attorney for Petitioner.

Of Counsel:

Urpan A. Lavery,

Wiiuram W. Barron,

Frank C. STerck.

23

APPENDIX.

Partial Statement of Docket Entries in District Court.'

PROCEEDINGS.

1949

May 19 Motion of Remington Rand, Ine. for leave to in-

tervene; P & A; app. Homer Cummings, J.

Edw. Burroughs, Jr. and Frank C. Sterck;

Served 5/19/49 M.C. 5/19/49

June 17 Memo. filed specially by pltff. in opposition to

Motion of Remington Rand for leave to Inter-

vene; mailed 6-17-49

17 Deft. memo. in opposition to motion of Reming-

ton Rand to intervene; served 5/17

21 Memo. of pltff. in opposition to motion that dep-

osition be not taken ete.; mailed 6/20/49

July 22 Supplemental memo of Remington Rand, Inc., in

support of motion to intervene, personally

7/22/49

23 Supplemental memo of defts. in opposition to mo-

tion of Remington Rand, Ine. for leave to in-

tervene, served 7/22/49

Oct. 18 Order granting motion of Remington Rand, Ine.

for leave to intervene and file a complt. herein.

Holtzoff, J. (N)

18 Intervening petition of Remington Rand, Ine.

App. of Cummings, Stanley, Truitt & Cross,

J. Edward Burroughs, Jr. & Frank C. Sterck.

Filed

25 Motion of defts. for order that defts. & pltf. are

entitled to settle action regardless af right

which intervenor has or asserts to contrary ;

‘served 10-24-49; P & A’s; M.C. 10-25-49, filed

25 Stipulation of defts. & Remington Rand, Ine. ex-

tending time for Remington Rand, Ine. to file

its P & A’s in opposition to deft’s. motion of

10-25-49 to & including 11-5-49. filed

‘This Appendix includes only those docket entries which reflect

proceedings affecting the intervention proceedings. A certified

statement of all docket entries, complete to April 4, 1951, has been

filed with the Clerk of this Court.

i:

26 Certified copy of order of U.S.C.A. ordering that

the effectiveness of Order of Intervention be

stayed to and including 10-25-49. filed

Nov. 4 Memo of intervenor pltf. in opposition to deft’s.

motion of 10-25-49; exhibits (2). _ filed

8 Memo of intervenor in opposition to motion of

deft’s. to dismiss complt.; mailed 11-8-49. filed

Dec. 7 Supplemental memo of deft. in support of motion

for an order that pltf. & defts. are entitled to

settle action, ete.; per. served 12-6-49. filed

15 Motion of pltf. to dismiss complt. of intervention

and/or motion to strike matter therefrom;

served 12-14-49; niemo in support; M.C.

12-15-49. _ filed

16 Stipulation between I. G. Chemie & Remington

Rand extending time within which intervenor

may answer pltf’s. motion to dismiss complt.

of intervention, ete. to and including Jan. 5,

1950. filed

16 Affidavit of David Schwartz in support of motion

of defts. for order adjudging that pltfs. & defts.

are entitled to settle action, regardless of right

of intervenor; service accepted 12-16-49. filed

21 Official transcript of proceedings (7-25-49) filed

21 Answer of intervenor pltf. to statement of David

Schwartz on behalf of deft. filed

21 Order denying motion of defts. for an order ad-

judging defts. & pltfs. are entitled to settle this

action regardless of any rights intervenor has

or asserts to the contrary. Pine, J. (N)

27 Stipulation extending time to plead to complt. in

— to Jan. 16,1950. (Fiat) Letts, J.

(

24

1950

Jan. 3 Notice by pltf. to intervenor of taking oral dep-

osition; service accepted 1-3-50

4 Motion of defts. for reconsideration of deft’s mo-

tion for declaratory relief; P & A; exhibit;

M.C. 1-4-50 filed

Memo of intervenor in opposition to motion of

pltf. to dismiss complt. of intervention or to

strike matter therefrom; mailed 1-4-50

or

Jan.

Feb.

Mar.

25

9 Reply by pltf. in support of motion to dismiss

complt. of intervention, ete.; mailed 1-7-50 filed

9 Answer of plfts. to motion for reconsideration of

defts. motion for declaratory relief; mailed

1-9-50.

11 Transcript of proceedings on motion to dismiss

intervening petition. filed

13 Notice of intervenor to take oral deposition of

pltf; mailed 1-13-50 filed

16 Motion of pltf. to compel intervenor to proceed

with deposition & to quash notice of intervenor

to take oral deposition; P & A. filed

18 Order denying motion of pltf. to dismiss complt.

of intervention and/or motion to strike.

Pine, J. (N)

18 Order denying motion of deft. for reconsidera-

iN) of motion for declaratory relief. Pine, J.

)

24 Answer of defts. #1 & 2 to complt. for interven-

tion; served 1-24-50 (N)

31 Notice by Remington Rand of taking deposition

of F. Rickner; Dr. U. Wehrli & Roy Archibald ;

mailed 1-31-50.

6 Motion of intervenor for permission to take depo-

sitions; P&A; affidavit; exhibit; mailed 2-4-50.

7 Hearing on intervening petition of Rem. Rand,

vol. 1, pp. 1-139. filed

9 Order permitting suspension of trial for one week

to permit taking of deposition. Pine, J.

10 Hearing resumed ; testimony ; respited until 10:00

A.M. Monday. Pine, J.

17 Telegram from Frank Sterck re: inability to ar-

rive for deposition. filed

27 Hearing resumed ; testimony; respited until 10:00

A.M. March 15, 1950. Pine, J. (N)

4 Copy of radiogram from Donald Hiss & Frank

Sterck to John R. Wood dated 2-28-50. filed

4 Copy of stipulation by Frank Sterck & Donald

Hiss dated 3-3-50. filed

13 Acknowledgment by witnesses, U. Wehrli & F.

Richner of examining their depositions & find

no changes needed ; also same statement by Roy

Archibald. filed

—

a PS ni

Mee ;

Mar.

Apr.

June

July

26

13 Depositions of R. Archibald, U. Wehrli & F. Rich-

ner on behalf of Remington-Rand; cost

($843.50) ; published & filed

17 Hearing resumed & respited until March 20 at

10:00 A.M. Pine, J.

23 Hearing resumed; testimony; respited until

10:00 A.M. tomorrow Pine, J.

23 Hearing resumed; testimony; respited until 10:00

A.M. Monday. Pine, J.

23 Order extending time for filing record on appeal

& docketing same. Pine, J.

28 Hearing resumed; arguments; taken under ad-

visement. Pine, J.

31 Memo opinion (Findings of Fact & Conclusions

of Law & Judgment to be presented.) Pine, J.

4 Transcript of proceedings on intervening peti-

tion of Remington Rand Ine., 2-10-50. * * *

14 Motion of Remington Rand, Inc. for leave to file

an amended complt; P&A; notice, mailed 4-14-

50; exhibit.

17 Amended Complt. for intervention, granted.

(Fiat) Pine, J.

26 Suggested Findings in behalf of Intervenor, Rem-

ington Rand. filed

26 Answer of Pitf. to amended complt. of Interven-

tion; Serv. 4-17-50. filed.

26 Answer of Dfts. to amended complt. of Interven-

tion; Serv. 4-26-50. filed.

26 Findings of Fact & Conclusions of Law. Pine, J.

N

26 Judgment dismissing complt. of Intervention of

Remington Rand. Pine, J. (N)

23 Notice of Appeal by Remington Rand, Intervenor

from order of 4-26-50 dismissing complt.;

mailed 6-22-50 filed

10 Designation of Record on appeal by Intervenor;

mailed 7-10-50 filed

15 Counterdesignation of record by Pltf; Serv. 7-

14-50. filed.

18 Counterdesignation of record by Dfts. (Appel-

lees) ; mailed 7-18-50

27

19 Statement of Points by appellants; mailed 7-19-

50 filed.

19 Designation of Record; mailed 7-19-50 filed.

20 Supplemental designation of record filed.

20 Motion of Intervenor pltf. for an order allowing

transmittal of original papers & exhibits to

Court of Appeals, P/A filed

21 Order directing Clerk of Court to forward to

U. S. Court of Appeals the originals of all

papers and exhibits listed in paragraphs 6 &7

of Intervenor pltf’s Designation of Record,

ete. Tamm, J. (N)

28 Joint counter-designation of Record on appeal;

mailed 7-28-50 filed.

Aug. 1 Transcript of Record of Appeal delivered to J.

Edward Burroughs filed

1951

Jan. 3 Appearance of William P. MacCracken, Jr.; atty

for Intervenor ; filed

4 Motion of pltf. for order nunc pro tune that no

reason for delay P&A; mailed 1-3-51 filed

4 Supplemental designation of record of pltff.

(Appellee)

4 P & A in opposition to motion for nune pro tune

order, by intervenor pltff.. Wm. P. Mace-

Cracken, Jr.; serv. ackn. 1-4-51;

4 Order on motion, nune pro tunc; Ordered that

determination of no just reason for delay be

formally entered of record; effective as of

April 26, 1950; Pine, J.

23 Mandate of Oct. 30, 1950 dismissing appeal on

order of Dee. 21, 1949; filed

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ee hg witcha vaxereed ooenee ue 15

SEI, Mvidentiary Baling ... . ......0..0ceecscceeees 17

NN ou 0' vse ede be enkd ab eho aeceesee 19

CITATIONS.

CasEs:

Collins v. Metro Goldwyn Pictures Corp., 106 F. 2d

Sy he Ge le ROD 6 oc kb kava cvnns Cad dwas nas 13

David v. District of Columbia, 187 F. 2d 204 (D. C.

Sl, BE: A UD wun 0 vronwwdnsevcaxcaucs 10, 15, 17

DeWitt v. Skinner, 232 Fed. 443, 444 (8th Cir., 1916) 19

Frazier v. United States, 335 U. 8. 497, 514 (1948) .. 13

Co., 336 U. S. 271, 275 (1949) .................. 14

SI Sian Gee Neha a oeetieucs 1k eu 13

Kaufman é Ruderman, Inc. v. Cohn & Rosenberger,

AGT FH. Bd OOO (98 Cir, IDO) 2... on cece ncccs. 16, 17

New York Life Insurance Co. v. Taylor, 147 F. 2d

297, 303, 306 (D. C. Cir., 1945) .................. 18

Palmer v. Hoffmann, 318 U.S. 109 CRE 55 ie ch oa 1

oS 5 ae

li Index Continued.

Page

Shokuwan Shimabukuro v. Higeyoshi Nagayama, 140

uae BAO Ge Os POEs vans tavvacvecionseces 19

Stockyards Loan Co. v. Nichols, 260 Fed. 393, 394

EE icine bei ckb cee Rh eseeneKabene sa 19

Stone v. Metzler, 68 App. D. C. 359, 360, 98 F. 2d

RR | re ree 19

Tyrrell v. District of Columbia, 243 U.S. 1, 5-6 (1917) 13

U.S. v. Quick, 128 F. 2d 832 (3d Cir., 1942) ........ 19

U.S. v. Riccardi, 174 F. 2d 883 (3d Cir., 1949) ...... 19

Vale v. Bennett, 15 F. Rules Serv. 54.b.4, Case 6, de-

aimee dame 7, 1904, D.C. Cire oo. cc ccccccscscss 17

Vicksburg & Meridian R. R. v. O’Brien, 119 U.S. 99,

le Ae Sec in aah Wn heb e's eww 19

Waters v. Kings County Trust Co., 144 F. 2d 680

cert. denied 323 U. S. 769, rehearing denied 323

Re fs eee eee 19

Willard Helburn Inc. v. Spiewak, 180 F. 2d 480 (2d

eS bike wb pend hbhaee hho Sb6 once ads 19

STATUTEs:

Shop book rule, 28 U. S. C. See. 1732 .............. 17

Trading with the Enemy Act, Sec. 9(a), 50 U. S.C. A.

oe NG as Saab canadwes ved 6e's-0 or 4

FeperaL Ruves or Crviz Procepure:

Rule 42(b) Separate Trials .... ............0000. 7,13

Rule 54(b) Judgment upon Multiple Claims ....2, 8, 10,

11, 12, 13, 15, 16

Rule 60(a) Clerical Mistakes ..... 2. .... cece cece 16

Rule 61 | 2, 12, 18

Rule 75(h) Power of Court to Correct or Modify

I Oe Cae nee ea lee a 3, 16

MISCELLANEOUS:

3 Jones, Evidence Sec. 883 (4th ed., 1938) .......... 19

3 Moore, Federal Practice 3051 (1938 ed.) ......... 14

‘ ‘a ‘ie +

o > — . ‘ os YA ehe ee. we eae apaetnge ye Or ie o.*

RARER AUN BF LPP LIE ML LOE 8 TI REGEN EL ISI EEL BIER IIE 8D AEC PER TEE, SO TNT ta a UT RE PRIS 7 Cae

IN THE

Supreme Court of the United States

OctoBer TrRM, 1951.

No. 148.

Reminoton Ranp Inc., Intervenor-Petitioner,

against

Socrere INTERNATIONALE POUR ParTICIPATIONS INDUSTRIELLES

ET Commenrciales, 8.A. ETc. (Interhandel), Plaintiff-

Respondent,

and

J. Howarp McGratu, Attorney General of the United

States as Successor to the Alien Property Custodian,

and Grorcia Negse CuarK, Treasurer of the United

States, Defendants-Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit.

BRIEF FOR PLAINTIFF-RESPONDENT, SOCIETE IN-

TERNATIONALE POUR PARTICIPATIONS INDUS.

TRIELLES ET COMMERCIALES, §. A. ETC. (Inter-

handel), INOPPOSITION.

_—_

OPINIONS BELOW

The United States District Court for the District of Co-

lumbia wrote a memorandum opinion (R. 26) which is not

reported. The opinion of the Court of Appeals for the Dis-

trict of Columbia Circuit (R. 400) is at 188 F. 2d 1011.

2

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

See. 1254(1).

QUESTIONS PRESENTED.

1. Whether the District Court abused its discretion in

setting down for trial petitioner’s complaint of interven-

tion prior to final- disposition of the main case involving

plaintiff-respondent’s claim for the return of property

vested by the Alien Property Custodian. (R. 396)

2. Whether there was compliance with Rule 54(b) of the

Federal Rules of Civil Procedure. (R. 394-396; 408-410;

413, 414)

3. Whether the Court of Appeals acted properly in con-

eluding that the District Court’s ruling excluding the

Wehrli memorandum did not constitute error and ‘‘cer-

tainly none which appeared to be ‘inconsistent with sub-

stantial justice’ ’’. (R. 400, 402)

STATUTES AND RULES INVOLVED

All statutes and the Federal Rules of Civil Procedure,

28 U.S.C. Sec. 723¢ et seq., deemed particularly pertinent

here are given in the Petition (pp. 3-5) except for the fol-

lowing:

Rule 61 provides:

Harmless Error. No error in either the admission or

the exclusion of evidence and no error or defect in any

ruling or order or in anything done or omitted by the

court or by any of the parties is ground for granting

a new trial or for setting aside a verdict or for vacat-

ing, modifying or otherwise disturbing a judgment or

order, unless refusal to take such action appears to

the court inconsistent with substantial justice. The

court at every stage of the proceeding must disregard

3

any error or defect in the proceeding which does not

affect the substantial rights of the parties.

Rule 75(h) provides:

(h) Power of Court to Correct or Modify Record. It

is not necessary for the record on appeal to be ap-

proved by the district court or judge thereof except

as provided in subdivisions (m) and (n) of this rule

and in Rule 76, but, if any difference arises as to

whether the record truly discloses what occurred in

the district court, the difference shall be submitted to

and settled by that court and the record made to con-

form to the truth. If anything material to either party

is omitted from the record on appeal by error or acci-

dent or is misstated therein, the parties by stipulation,

or the district court, either before or after the record

is transmitted to the appellate court, or the appellate

court, on a proper suggestion or of its own initiative,

may direct that the omission or misstatement shall be

corrected, and if necessary that a supplemental record

shall be certified and transmitted by the clerk of the

district court. All other questions as to the content

and form of the record shall be presented to the court

of appeals. As amended Dec. 27, 1946 and Dee, 29,

1948, effective Oct. 20, 1949.

STATEMENT.

This litigation is limited to the dismissal, after trial on

the merits, of petitioner’s amended complaint of interven-

tion (R. 5).

The main action instituted on October 21, 1948, by plain-

tiff-respondent, Societe Internationale Pour Participations

Industrielles et Commerciales, S. A. Ete. (Interhandel), a

Swiss corporation, hereinafter referred to as Interhandel

(Orig. R. 2005), is still pending in the District Court. In

the main action Interhandel sued the Attorney General and

ro eR A ie, i

4

the Treasurer of the United States under section 9(a) of the

Trading with the Enemy Act, 50 U.S.C.A. App. See. 9(a),

for the return of certain shares of stock of General Aniline

& Film Corporation (GAF) and other assets which had

been vested by the Alien Property Custodian in 1942 and

1943 and are now held by the Attorney General as succes-

sor to the Custodian. (Orig. R. 2005)

On May 19, 1949, Remington Rand, the petitioner, filed

a motion seeking leave to file a complaint of intervention.*

On October 18, 1949, the motion was granted and the com-

plaint filed (R. 2). After completion of trial on the merits,

this was supplanted by an amended complaint (R. 5).

In the amended complaint Remington Rand asserted

contingent rights to the vested GAF shares resulting from

an oral declaration** made by Interhandel on June 6, 1946.

According to Remington Rand, the terms of the declara-

tion provided that should Remington Rand, before the

specified expiration date, submit an offer*** promising to

pay $25,000,000 to Interhandel for the vested GAF shares,

Interhandel would thereby become firmly obligated to de-

liver such shares to petitioner if at any time in the future

the vested shares and other property were returned to

Interhandel and if certain discriminatory treatment by

the United States was eliminated. On May 5, 1947, which

* A partial statement of docket entries in the District Court,

including those mentioned here, is contained in the Appendix to

the Petition, pp. 23-27.

** The oral declaration was also referred to by other terms. For

example, the word ‘‘option’’ was used by two of petitioner’s wit-

nesses (R. 134, 137, 144); the District Court referred to it as ‘‘an

oral statement or offer’? (R. 31, 32); the Court of Appeals used

the term ‘‘declaration’’ (R. 400, 401). In this brief it will be

referred to as a ‘‘deelaration’’.

*** Tere again different phrases appear in the record to describe

temington Rand's contemplated response to Interhandel’s decla-

ration. Petitioner’s complaint used the phrase ‘‘offer to pur-

chase’? (R. 7); the Distriet Court used the same phrase in its

Findings (R. 31), and the word ‘‘aceeptanee’’ in its Conelusions

(R. 36); the Court of Appeals used the word ‘‘offer’’ (R. 401).

In this brief the word ‘‘offer’’ is used.

5

was prior to the ultimate date of termination of the decla-

ration, Remington Rand submitted an offer to purchase the

vested GAF shares at the stipulated price and maintained

that it was willing and able to perform its part of the

agreement upon delivery by Interhandel of the shares.

Remington Rand then charged that Interhandel refused to

recognize its obligations under this agreement and intend-

ed to dispose of its rights and interest in the GAF shares in

disregard of such agreement. Remington Rand prayed

for a judgment declaring it to be entitled to the GAF shares

when the conditions were fulfilled and for an injunction re-

straining Interhandel from disposing of its rights or in-

terest in the shares (Ri 5-8).

Interhandel denied the existence of a legally binding

agreement. Its answer asserted that the declaration con-

stituted a ‘‘gentlemen’s agreement’? which was not legally

enforceable under Swiss law, which controlled. Interhan-

del alternatively claimed that its June, 1946, declaration

provided that an offer of Remington Rand to purchase the

GAF shares for $25,000,000 would give rise to a legally

binding agreement only if before the specified expiration

date the shares were returned to Interhandel by the United

States authorities, other vested property restored, and the

discriminations eliminated. In other words, all of these

conditions were conditions precedent in that, unless they

were fully satisfied prior to the expiration date, no binding

agreement would come into being even though Remington

Rand should submit an offer to purchase the shares prior

to that date. (R. 8-19, 25). The expiration date origi-

nally specified in the declaration was extended several

times. Ultimately Interhandel stipulated that the decla-

ration would run indefinitely, subject to cancellation upon

Interhandel’s giving fifteen days notice. Such notice was

given on April 21, 1947. The termination date therefore

was fixed at May 6, 1947. The conditions precedent have

not been satisfied, as was admitted by petitioner (R. 286).

a

6

Accordingly, Remington Rand’s alleged offer of May 9,

1947, was ineffectual. (R. 8-19, 25)*

Upon completion of the trial a memorandum opinion was

filed by the District Court stating that petitioner, the in-

tervenor there, had ‘‘failed to establish, by a preponder-

ance of the evidence, the basic element of its claim, name-

ly, the existence of the agreement between itself and plain-

tiff [Interhandel] on which it relies and as particularly de-

scribed in the complaint of intervention and pre-trial

statement; and having failed in this regard, it is not en-

titled to the relief prayed.’’ (R. 26) Thereafter the Dis-

trict Court filed its findings and conclusions. It specifi-

cally found that the conditions contained in the declaration

of June, 1946, were conditions precedent, i.e., that the GAF

shares had to be returned to Interhandel and the other

conditions fulfilled before the termination date (R. 31, 32).

Interhandel having given fifteen days notice on April 21,

1947, the termination date of May 6, 1947, was thus estab-

lished. (R. 31, 33) It was conceded by petitioner that

the shares had not been returned and that the other condi-

tions had not been satisfied on that date or even at the

time of trial (R. 286).

On the basis of these facts, the trial court concluded that, i

as a matter of law, the offer of Remington Rand became in- F

effectual on May 6, 1947, the termination date (R. 36).

The District Court also found that Interhandel’s declara-

tion was intended to be a ‘‘gentleman’s agreement’’ and

that under the law of Switzerland it gave rise to no en- ‘

forceable rights. (R. 31, 35) Being unenforceable under %

the law of Switzerland, the place where Interhandel’s dec- a

laration and Remington Rand’s offer were made, the

%

* Additional independent defenses were advaneed by Inter- i

handel, some of which were sustained by the Distriet Court, some i

rejected. Inasmuch as the Court of Appeals considered it un- e

necessary to consider these additional defenses in order to affirm

the judgment of the lower court, these defenses are not discussed

here.

7

agreement would not be enforced in the District Court

(R. 36).*

Judgment was accordingly entered dismissing the com-

plaint of intervention (R. 37, 38). Remington Rand there-

upon took appropriate, timely and unequivocal steps to ob-

tain review by the Court of Appeals for the District of

Columbia Cirecuit.** In its brief submitted to the appel-

late court petitioner contended that the findings of fact

below were clearly erroneous and complained of certain

evidentiary rulings.

If Remington Rand in its petition had continued to ad-

here to its position on the merits and had confined itself

to the points set forth in its brief filed with the Court of

Appeals, we could in this statement now proceed in an or-

derly manner to examine the disposition of this case on

appeal. An examination of other parts of the record not

relevant to the merits or the rulings on evidence would be

unnecessary. Remington Rand, however, has now aban-

doned its contention that it should prevail on the merits

and in its petition advances two technical points which

were not mentioned in its brief.

Petitioner now attacks the District Court’s order which

set the intervention case down for trial separately and

without waiting for completion of trial of the main case,

notwithstanding petitioner’s failure to object at the time

the court took such action or to urge reversal on this

ground in the appellate court. Petitioner’s present posi-

tion is that the court’s diseretion under Rule 42(b) of the

Federal Rules of Civil Procedure was ‘‘misused’’. (Pet.

2, 9, 10 and 11).

Petitioner’s second point is that the Court of Appeals

lacked jurisdiction in this case. The determination of no

* Additional findings and conclusions in support of the con-

tentions of Interhandel are not discussed for reasons set forth in

the footnote on page 6, supra.

** Notice of appeal was duly filed on June 23, 1950. Transcript

of the record on appeal was filed on August 1, 1950. (Pet. 26, 27)

8

just reason for delay required by Rule 54(b), Remington

Rand now asserts, had not been made while the case was

pending before the District Court and was not remedied

by the nunc pro tunc order which the District Court en-

tered on January 4, 1951, after the appeal had been per-

fected (R. 413, 414).*

A proper understanding of these new issues now raised

by Remington Rand requires us at this stage to interrupt

a strictly chronological statement of the case and revert

to developments in the District Court in connection with

pre-trial and post-trial motions as such developments ap-

pear in the record.

Prior to the filing of answers to the complaint of inter-

vention, the Attorney General and the Treasurer of the

United States moved for an order ‘‘adjudging that defend-

ants [the Attorney General and the Treasurer of the

United States] and the plaintiff [Interhandel] are entitled

to stipulate for the settlement and dismissal with preju-

dice of the cause of action herein asserted by the plaintiff

against defendants regardless of any right which the in-

tervenor-plaintiff has or asserts to the contrary.’’ (R. 393)

The motion was denied on December 21, 1949, and on

the same date the intervention case was set down for trial

on January 30, 1950. The District Court filed a memoran-

dum opinion explaining its reasons for this action (R.

394). According to the opinion, in support of the Attorney

General’s motion, it had been asserted that ‘‘great dam-

age may be done to this property if an early disposition

is not made of this [the intervention] case.’’ (R. 394, 396)

The opinion further points out that, in the course of the

argument on the motion, the court had been ‘‘told’’ that

the property was ‘‘in the nature of being perishable’’ and

*It is noted that Remington Rand in attacking the appellate

court’s jurisdiction is now taking a position diametrically op-

posed to the position which it maintained as appellant in perfect-

ing the appeal and in urging the Court of Appeals to reverse the

District Court.

1

Pe ee ne OS PER

|

9

the court had ‘‘got the suggestion’’ that Remington Rand,

the intervenor, had filed ‘‘something in the nature of a

strike-suit’’ (R. 394, 396). Thus the Court found itself in

what it termed a ‘‘dilemma’’. To grant the motion with-

out trial on the merits of the complaint of intervention

would have disregarded the rights of the intervenor, Rem-

ington Rand. To deny the motion without further action

would have disregarded the desires of the plaintiff (Inter-

handel), and defendant (the Attorney General), to settle

the main case; would have failed to protect the property

‘‘from deterioration or loss’’; and would have interfered

‘‘with the Government’s program’’ (R. 396). This dilem-

ma was heightened by the ‘‘suggestion’’ which had been

made to the Court that ‘‘the intervenor had filed something

in the nature of a strike suit.’’ (R. 396). The Court ex-

tricated itself from this dilemma by denying the motion

and setting down the case of intervention for trial on

January 30, 1950, more than six weeks thereafter; more

than eight months after May 19, 1949, when Remington

Rand had filed its motion for leave to intervene; more than

sixteen months after October 21, 1948, when the complaint

was filed in the main case; and nearly three years after

May 5, 1947, when petitioner contends its agreement with

Interhandel to buy the GAF shares became effective.*

The Attorney General opposed the order and asked for

reconsideration of his motion for declaratory relief (R.

396). Petitioner remained silent then but now, in its peti-

tion, asserts for the first time that the lower court erred in

setting the intervention case down for separate and early

trial. (Pet. 2, 9, 10, 11). In denying the motion for re-

consideration the Court again explained its reasons for

ordering a separate and early trial of the intervention liti-

gation in the following manner:

‘*T should like to file a written opinion if there were

ample time to do so, but in my effort to protect the

* Yet petitioner now claims in its statement that it ‘‘was allowed

scant time to prepare for’’ the trial. (Pet. 6).

Pn

EPS i .

PSS i IR b>

10

rights of the plaintiff and the defendants and also

safeguard the rights of the intervenor I have set this

case down for trial, on January 30.’’*

With respect to the jurisdictional issue, now being

raised by petitioner (Pet. 2, 3, 11, 12, 17-22), developments

connected with a post-trial motion are relevant. On Jan-

uary 4, 1951, a motion was filed with the District Court

by Interhandel seeking the entry of a nunc pro tunc order.

To be sure, the appeal had been perfected by that time

but the record is equally clear that prior to that date there

was no indication that any party was uncertain as to the

finality of the judgment dismissing the complaint of in-

tervention.** The purpose of such a proposed order was

fully explained in Interhandel’s points and authorities in

support of its motion (R. 409-410). In December, 1950,

the Court of Appeals had decided David v. District of

Columbia, 187 F. 2d 204. In that case the court, sua sponte,

raised the issue of Rule 54(b), and dismissed the appeal

for failure to comply with the rule. The opinion indicated

that, in an appeal involving Rule 54(b) the lower court

should have made a formal determination of record in the

exact words of the rule ‘‘that there is no just reason for

delay.”’

In the instant case the District Court had affirmatively

determined that there were reasons for advancing the case

for trial and for determining with finality petitioner’s

rights of intervention before proceeding with the trial of

the main case. This is made clear in the District Court’s

memorandum opinion denying the Attorney General’s mo-

tion for declaratory judgment entitling Interhandel and

* This quotation from Judge Pine’s oral opinion denying the

motion for reconsideration is found in the points and authorities

in support of Interhandel’s motion for an order nunc pro tunc.

(R. 409, 410)

** Petitioner, without any reference to the record, or further

documentation, now eavalierly asserts that it was uncertain as to

the finality of the judgment and its right to appeal (Pet. 20).

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the Attorney General to carry out their desires to settle

the main case regardless of petitioner’s interests and set-

ting January 30, 1950, as the trial date for the intervention

case (R. 394-396). This point was reiterated in the subse-

quent oral opinion of the District Court denying the At-

torney General’s motion for reconsideration. (R. 409,

410) But the negative words of the rule—‘‘there is no

just reason for delay’’—had not been made a matter of

formal record. To eliminate all possible doubts and to

make doubly sure that Remington Rand’s appeal would

be decided on the merits and not on a technicality, Inter-

handel, even though appellee, filed its motion with the Dis-

trict Court seeking a nunc pro tunc order which would use

the exact negative words contained in Rule 54(b).

Although petitioner was the appellant in the Court of

Appeals, it opposed Interhandel’s motion (R. 411, 412).

However, the motion was granted and an order entered, ef-

fective April 26, 1950, in which Judge Pine observed that

he had ‘‘expressly determined prior to and at the time of

the entry of final judgment herein that there was no just

reason for delay ...’’ He then ‘‘ordered that this deter-

mination of no just reason for delay be hereby formally

entered of record, effective as of the 26th day of April

1950.’’ (R. 413, 414)

On January 15, 1950, the appeal was argued before the

Court of Aeneas (R. 399). The question of jurisdiction

involving Rule 54(b) was raised at the outset by the Court,

(R. 399) and argued at length. Interhandel maintained

that the Rule had been satisfied by the determinations of

the lower court at the time the case was set for trial and

at other times in the course of the trial. Interhandel fur-

ther asserted that all doubts on this score were eliminated

by the nunc pro tunc order (R. 413, 414). Petitioner took

a contrary position, asserting that the rule had not been

complied with, and continued to attack the validity of the

nunc pro tunc order.

Argument was then heard on the assertions of Reming-

ton Rand that the lower court’s findings of fact were clear-

12

ly erroneous and that it had erred in certain evidentiary

rulings.

Thus petitioner before the Court of Appeals in January,

1950, maintained completely inconsistent positions. At

the start of the argument the Court was told by petitioner

that it lacked jurisdiction and was asked to disregard peti-

tioner’s brief and to rule that the appeal was premature

until the litigation in the main case had been completed.

In the next breath the Court was told by petitioner that

it had jurisdiction and was asked to adopt petitioner’s

brief and to reverse the District Court on the merits.

On March 29, 1951, the Court of Appeals rendered a

unanimous decision affirming the lower court (R. 400). It

was noted that Rule 54(b) had been fully satisfied and the

court did not consider any further discussion of the mat-

ter necessary. (R. 400)

On the two ‘‘fundamental’’ or ‘‘vital’’ issues of fact,

whether the arrangement between the parties was a ‘‘gen-

tlemen’s agreement’’ and, alternatively, whether the con-

ditions were conditions precedent it was concluded that

the findings below were not clearly erroneous and there-

fore could not be set aside. Moreover, the opinion went

further and added the following:

‘‘On the contrary, in our opinion the findings of the

trial judge are abundantly supported by substantial

evidence and should not be set aside.’? (R. 400, 402)

With respect to Remington Rand’s complaint as to

certain rulings concerning the admission and exclusion of

evidence, including the exclusion of the Wehrli memoran-

dum, the Court of Appeals said:

‘“These we have considered and find no error—cer-

tainly none which appear to be ‘inconsistent with sub-

stantial justice.’ Fed. R. Civ. P., 61.’’ (R. 400, 402).

The judgment of the District Court was therefore af-

firmed.

Two courts having rejected its claim on the merits, peti-

tioner, recognizing it has no substantive case, now aban-

oH6 di

ae

tae

13

dons this avenue and relies on (1) Rule 54(b), (2) a wholly

new procedural point, and (3) an evidentiary point. Not-

withstanding Remington Rand’s record in this case, peti-

tioner takes sharp issue with the suggestion made to the

trial court that ‘‘the intervenor [petitioner here] had filed

something in the nature of a strike suit.’’ (R. 396) This

suggestion is characterized by petitioner as ‘‘a gratuitous

slander entirely unsupported by the record.’’ (Pet. 10)

In the light of the record, the strike suit suggestion appears

now to be an understateient.

ARGUMENT.

I.

Separate Trial.

Petitioner attacks the action of the District Court in or-

dering a separate trial of the intervention complaint with-

out waiting for the completion of the trial of the main

ease. This is given as one of three reasons for granting

certiorari, petitioner now contending that in taking such

action Rule 42(b) ‘‘was misused’’ by the District Court

(Pet. 10).

Petitioner failed to object at the time the lower court

ordered a separate trial and failed to urge the Court of

Appeals to reverse on this ground. Hence petitioner is

not entitled to raise the point for the first time at this

stage of the proceedings. Frazier v. United States, 335

U. S. 497, 514; Helvering v. Minnesota Tea Co., 296 U. S.

378, 380; Tyrrell v. District of Columbia, 243 U.S. 1, 5-6.

Even if petitioner had saved its rights by timely excep-

tion, there is no merit to the point now being advanced by

petitioner. There is agreement in the circuit courts that

review by the intermediate courts of an order allowing sep-

arate trial is permissible only if there was an abuse of

diseretion.* Cases cited by petitioner are not in conflict.

* Shippers Pre-Cooling Service v. Marks, 181 F. 2d 510, cert.

denied 340 U. S. 816 (5th Cir. 1950); Collins v. Metro Goldwyn

Pictures Corp., 106 F. 2d 83, 87 (2d Cir. 1939).

14

The exercise of discretion by a trial court is governed

by the facts. Being governed by the facts a trial court’s

exercise of discretion, when affirmed on appeal, is not of

sufficient importance for review by this Court, absent an

obvious and exceptional showing of abuse. Graver Manu-

facturing Co. v. Linde Air Products Co., 336 U. 8. 271, 275.

Here a mere reading of the complaints which are sum-

marized in the statement at pages 3-5, supra, establishes

the wisdom of the District Court in ordering a separate

trial.

Interhandel’s complaint in the main case and Reming-

ton Rand’s complaint in the intervention case involve

definitely diverse claims.* The former concerns the right

of Interhandel to the return of the GAF shares which the

APC vested as being enemy-owned; the latter concerned

Remington Rand’s alleged private contract rights with

Interhandel.**

Moreover, the record shows that there were additional

reasons which motivated the lower court. The Attorney

General wanted to be free to settle the main case with In-

terhandel and thereby protect the property ‘‘from deteri-

oration’? and further the ‘‘Government’s program.’’***

A settlement between the parties in the main case would

avoid the expense of a costly and time-consuming trial avd

thus further the convenience of the Attorney General,

Interhandel and the Courts. Remington Rand’s complaint,

however, prevented such a settlement. If its claim was

sound a settlement without its approval would have jeopar-

dized its legitimate interests, as the lower court pointed

out (R. 394, 395, 396). If the complaint was lacking in

merit, as was found to be the case, then the intervention

litigation was ‘‘in the nature of a strike suit’’ (R. 394, 396).

* This alone is sufficient to justify separate trials. See 3 Moore,

Federal Practice 3051 (1938 ed.).

** The main case js still in the deposition and discovery stage

before a special master.

*** See Attorney General’s motion for declaratory jadgment (R.

393), his motion for reconsideration (R. 396, 397). See also

Judge Pine’s memorandum opinion (R. 394, 396).

eS lee ee ee

Ee ORY

15

Under these circumstances, separate trials were inevita-

ble and one complaint had to be tried in advance of the

other. With the parties in the main case desirous of ter-

minating the litigation by settlement, the only reasonable

solution was to order early trial of the intervention com-

plaint which involved relatively simple issues of fact.

Thus it is seen that there is no possible foundation for

charging abuse of discretion.

II.

Rule 54(b).

Petitioner contends that a determination of ‘‘no just

reason for delay’’ was not made before the entry of judg-

ment, with the result that under Rule 54(b) the judgment

was not final and the appeal premature (Pet. 2, 3, 11, 12,

17-22).*

On January 4, 1951, when the appeal was pending, the

District Court entered a nunc pro tunc order, effective

April 26, 1951, the date the judgment was entered (R. 413,

414). The order was in response to Interhandel’s motion

(R. 408) filed after the Court of Appeals’ decision in

David v. District of Columbia, 187 F. 2d 204 (D. C. Cir., Dee.

14, 1950). In that ease the Court, on its own motion, dis-

missed the appeal because the record failed to show that

the lower court had made a determination of no just

reason for delay. The language of the opinion made it

‘conceivable that Rule 54(b) could be deemed applicable’’

to the instant case so as to result in the appeal being dis-

missed on a procedural point and not disposed of on the

merits. (R. 409, 410) This would have run counter to

the trial court’s wishes for an early and final adjudication

of the merits of petitioner’s complaint. (R. 394-396)

At the start of argument on appeal, the court raised the

* Petitioner also maintains that a further question is presented—

whether a judgment in an intervention case is final without regard

to Rule 54(b). Such a question is not raised in the instant ease.

Hence, subdivision III of petitioner’s argument (Pet. 17-21) is

irrelevant.

16

issue of Rule 54(b) (R. 399) and ‘‘devoted one solid hour

to hearing argument on the question of its jurisdiction’’

(Pet. 20). In its opinion the court said:

‘‘Kntry of the judgment was directed upon an ex-

press determination by the court that there was no

just reason for delay [Fed. R. Civ. P., 54(b)].’’ (R.

400)

Under Rule 75(h) the District Court, without leave of

the appellate court, had authority to enter the nunc pro

tunc order. The order recites that the trial court had ‘‘ex-

pressly determined prior to and at the time of the entry of

final judgment herein that there was no just reason for

delay’’ and such determination was thereby ‘‘formally en-

tered of record’’ (R. 413, 414). The record abundantly

supports this recital of the lower court.*

The action of the District Court might therefore be in-

terpreted as merely correcting an omission of the record

which such a court may do, ‘‘either before or after the

record is transmitted to the appellate court’’, under Rule

75(h), ‘‘on a proper suggestion or of its own initiative.’’

The appellate court in approving the nunc pro tunc order,

moreover, could be viewed as giving its ‘‘leave’’ to the

District Court, in the form of ratification, to the correction

of a clerical omission. [See Rule 60(a) ]

The Court of Appeals did not specify whether it relied

on one or both of the rules available.

In any event, there is no conflict in the decisions dealing

with the propriety of using a nunc pro tune order in this

manner. The question has arisen in only one other cir-

cuit. Kaufman & Ruderman v. Cohn & Rosenberger, 177

F. 2d 849 (2nd Cir. 1949). In both circuits the use of a

nunc pro tunc order to satisfy Rule 54(b) was sanctioned.

*In denying the Attorney General’s motions and in setting

January 30, 1950 as the trial date, the Court made it clear that an

early and final determination of petitioner’s rights of intervention

was essential ‘‘to protect the rights of the plaintiff and the de-

fendants, and also safeguard the rights of the intervenor.’’ (R.

394, 396, 398 ; 409)

17

In the Kaufman case an order, entered while the case was

pending on appeal and after argument, was held to be

proper; in the present case, an order, entered while the

case was pending on appeal but before argument, was held

to be proper. Thus in the holdings and in principle the

cases are in agreement.

Unlike the David case cited by petitioner, the Court of

Appeals, in the case at bar, was fully appraised of the trial

judge’s attitude toward the appealability of his judgment

and there was no necessity to remand in order to ascertain

such attitude.*

Furthermore, the course followed here was eminently

sound. No useful purpose would be served by disapprov-

ing the nunc pro tunc order and dismissing the appeal.

The District Court would have to hear a repetition of ar-

gument and repeat its action in entering another order

determining no just reason for delay. The Court of Ap-

peals would have to hear a repetition of argument and

repeat its action in filing another opinion dismissing the

case on the merits. Such a course would merely delay a

final determination of the rights of the petitioner as inter-

venor below. Such delay would be detrimental to the

interests of the Attorney General and Interhandel, with-

out protecting the legitimate rights of the petitioner, and

would unduly burden the lower courts.

ITI.

Evidentiary Ruling.

Petitioner maintains that the exclusion of the Wehrli

memorandum conflicts with decisions of other circuits, and

that the document should have been admitted either under

the shop book rule, 28 U.S.C. See. 1732, or under the rule

of past recollection recorded (Pet. 3, 12-17).

Even if petitioner’s position on this point is sound, it is

*Use of a nunc pro tunc order in order to comply with Rule

54(b) was examined again by the Court of Appeals for the District

of Columbia Cireuit and its approval reiterated. Vale v. Bennett,

15 F. Rules Serv. 54.b.4, Case 6, decided June 7, 1951, D. C. Cir.