Petition for Writ of Certiorari — Evarts v. Jones

EUGENE F. EVARTS, MONROVA S.

EVARTS, EUGENE K. EVARTS,

Appellants, Petitioners,

vs.

C. J. JONES, C. 8. JONES, JONES

BROTHERS, C. J. JONES & ASSO-

CIATES, SAN ANTONIO HEIGHTS

TRACT , JOHN DOE I-V, JANE

DOE I-V, BLACK & WHITE COM-

PANY I-V, DOE & DOE CORPORA-

TION I-V, JOHN-GREEN doing busi-

ness as co-partnership,

Appellees.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

ELON G. GALUSHA

511 Wilshire Office Bldg.

Le Ane Cai

es, ornia

Attorney for Appellants,

Petitioners.

——— ar

TOPICAL INDEX

Jurisdiction 2. SPMD TN PROMS POT

RIND I icicsctdncicccnccinssadiceenmsiciirmeomnsbinuncianda

I: UC i tee er od

Statement .. saneidiclan

Reasons in Cniitine ie Writ.

Conelusion. ........... Ee A OE EIN ae RA isaeaca ras

MI I peicsinrinctniinpavedirtgalasicteniniseasememsccncaile a

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_

TABLE OF CASES AND AUTHORITIES CITED

Cases

Brown v. Allen, 233 US 525.000...

Brooks v. Fidelity Loan Assn., 54 CA 2d 130... .14

Cavos v. Geihsler, 109 Colo. ......., 163 (1942)... 14

Estate of Reed, 25 CA 2d 367... coe ey

Fullerton Kreuger Lumber Co. v. os P. R. o., 266

1 IME ered Pars eC aut RNa e Ta i a

Gerey 7, wae, Gon oe oe 13

Hasson v. Long Beach, 83 CA 2d 745... 14

H. O. L. C. v. Wash., 161 P. 2d 353, 108 Ut. 469. ae

Howard y. U.S., CCA La. 125 F 2d 986, 991............. 13

Jacobson v. Mass., 197 US. eee ei

Miller v. Long 152 F 2d 196... 14

Mooney v. Holohan, 294 US 103.0000 15

Moore vy. Eire Co. Agr., 12 Fed. Rule 6 note 2... 14

ii Index

Page

Nelson v. Penn., recent Sup. Ct. Dee. 13

Osborn v. Osborn, 42 © 2d 363.2 an

Picking v. Penn. R. Co., 155 F 2d 242 15

Pub. Serv. Com. v. Baterville Tele. Co., 284 US 6... 16

Reed v. Jones Bros., LBC #13040 (1947) 3, 4, 5, 8, 12

Screws v. U.S., 324 US 95. 14

eee vee we eee 14

Taylor v. West. States Land & Mtg. Co. 77 CA(2)

869 -

Yakus v. U. 8., 321 US 441 (1944)... 8

298 US 296—298 US 238... inahas Weta 16

Statutes

Article 1, Sec. 3, 13 California Constitution......2, 12, 15

California Stat. Escrow Laws (1947) Sec. 12, Chp.

921, pp. 2126, 2130 Cte nae

Code Civ. Proc. 286, 473 ( Calif.)... Cea

National Housing Act as tended —St CFR (1944

FHA Title 603-604, H-2 pursuant to 610—Part

28... is by Oy 4, 5, 6, 7, 16, 17

VLE XIV Aaiaaiiiane of United States Constitu-

tion .. Eada nibedeitibeadtasinks aig Ay 1D

12 US¢ ‘Ae par. 64... tah os STE TRAINS SO HE: PSO ER 13

24 CFR Sec. 202.7(¢) ; See. 202.8: See. 221.17;

Sec. 277.4(b) ; Sec. 278.11, 16; Sec. 283.6;

SC

24 CFR See. 840.48(b) (under NHA) (1949):

Emergency Price Control Act as amended (1942)

ches sige it, 13

Sese & Homing Dianne Adminis wtietion._ ‘5:

Index iii

Office of Price Administration.

Office of Temporary Control.

War Housing Administration sibiealascasetuamekioe oa

J fy . ee

24 CFR Supp. 702.10(2) H-2 p. 1834-1844 (1944 )

702.11(3)(¢) (1) ; 702.50(a) ; 702.50(a) ;

702.51(¢) (1); 702.51(¢)(4); 702.53(a) ;

TOZSG( 2) & (C) ace cercrsrerner ners unmet 12, 13, 16

28 USCA Rule 40; Rule 57; Rule 63... 6, 15

28 USCA See. 41(1) ; Sec. 220: Sec. 400; Sec. 1331;

Sec. 1342; Sec. 1343; Sec. 43.0000. aes

6 US Stat. 179(4) (5)... ‘Ha Se ONES ARN aE, 2, 10

PLP ON a POO Pe

OOO Ra OF Le

OF mong re a,

IN THE

SUPREME COURT

OF THE

United States

October Term, 1955

KUGENE F. EVARTS, MONROVA S.

EVARTS, EUGENE K. EVARTS,

Appellants, Petitioners,

vs.

(. J. JONES, C. S. JONES, JONES

BROTHERS, C. J. JONES & ASSO-

CIATES, SAN ANTONIO HEIGHTS ) No.............

TRACT , JOHN DOE I-V, JANE

DOE 1-V, BLACK & WHITE COM-

PANY I-V, DOE & DOE CORPORA-

TION 1-V, JOHN-GREEN doing busi-

ness as co-partnership,

Appellees.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioners, Eugene F. Evarts, Monrova S. Evarts,

and Eugene K. Evarts, pray that a writ of certiorari

issue from this Court to review the judgment of the

United States Court of Appeals for the Ninth Circuit,

entered in the above entitled case on December 9, 1955

and Re-hearing denied January 23, 1956.

A

\

OPINIONS BELOW

The Order of the Southern District Court of Cali-

fornia, Central Division, the minute entry judgment,

dismissing declaratory relief action for lack of juris-

diction (Tr. 34), after listening to oral argument (Tr.

40-41) stating contracts in question were of state con-

struction. And denying a rehearing (Tr. 42).

JURISDICTION

Judement of the 9th Circuit Court entered Decem-

ber 9, 1955, (Tr. 40) Petition for Rehearing denied

January 23, 1956 (Tr. 42) jurisdiction of this Court

is invoked under 28 USCA Sec. 1254; 8 USCA See. 41;

28 USCA See. 43; 28 USCA Rule 19; 194 4 CFR,

Supp. National House Act as Amended, Title 603-604

pursuant to 610, especially Part 702 50-56, H-2 Emer-

gency War Housing; the Commissioners Rulings and

Orders of Federal Agencies including FHA, OPA,

WPB, HHFA, OTC, authorized under 13 FR 3935 1

CFR Part 2, authorized (50 Stat. 305; 44 USC 311

(d), 49 Stat. 502, 50 Stat. 304; 44 USC 307, 311 (¢);

12 FR 5692 amended 13 FR 4419-4739; 24 CFR 801.1

209, See. 853.2-1.) 56 US Stat. 179 (4) (5); Article 1,

Sec. 3, 13 of California Constitution: Vl and XIV

Amendment of United States Constitution.

3

QUESTIONS PRESENTED

l. Are the Constitutional guarantees, and NHA

Act which are for a public purpose waived as against

purchasers in the San Antonio Heights Subdivision

Tract in Long Beach, California ¢

2. Could appellees after signing required agree-

ments with the Federal Government for release of

critical building materials, (to build and sell H-2 Sub-

division Homes during period declared by the Presi-

dent to be a National Emergency) VIOLATE these

contractual obligations, by increasing the **maximum

approved sales price” and the **maxinum interest rate

and add charges"* not allowable for escrow costs, under

24 CFR, with immunity and to purchasers” loss?

3. After receiving full payment of $983. plus 6.66

interest for equity therein, could appellees refuse to

deliver a deed to appellants on the terms stated in the

Ist and 2nd sales contract, and interpreted 1947 in Reed

vr. Jones Bros., UBC = 130407

4. Could appellees properly include restriction in

the 2nd Contract not provided for in the Ist, where

there was no new consideration given, and deprive

appellant of ownership rights, such as to rent, transfer

or sell the equity in the property after possession /

5. Could appellees legally demand with due process,

payment be continued by buyers for 2 vears more after

equity had been paid in full plus 6.6% in 1946? And

then demand appellants sign escrow instructions that

would waive their rights to sue for refund of overpay-

ments (made under duress) and to:

4

A. Waive sellers’ obligation to pay his share of

escrow expenses as required by NHA, the Con-

tract and by local custom /

lL. Waive right for itemized statement of money

paid on account and credits receipted for and

itemized costs claimed ?

C. Waive right to a mutually binding and equitable

escrow agreement conforming to the Sales Con-

tract /

I). Waive right to secure fire insurance policy, fully

paid for as is stated in the Contract /

EK. Waive rights to credits and statement for fire

insurance and tax money paid in by buyers as

impounds under FHA loan?

F. And forfeit Contracts to appellees /

6. Could appellees legally alter the terms of this

written contract, by unsupported PAROLE evidence,

claiming 6.6% interest, when the Amortization pay-

ment on the joan in the contract specifically set out on

this loan portion to be $28.31 per month, as this figure

is arrived at by using the 444% FHA Amortization

Schedule, which was introduced as an exhibit in Reed

vr. Jones case LBC 413040 and also introduced in Quiet

Title case Jones v. Evarts, UBC #16869. Where Reed

case on the tract, in which appellants’ property was

located, established 444% on the FHA loan?

7. Can appellees 2 vears after the contract has

heen in force, and after notice was mailed to buyers,

showing FHA interest to be 444%, change their pur-

-

J

5

pose to buyers’ detriment as to the rate of interest by

upgrading it to 6.6% ¢

8. Could appellees when refusing permission for

appellants tou apply for Substitution of Liability on

their FHA loan balance after they receipted full pay-

ment of their equity, and after refusing full tender of

FHA loan balance, still refuse to give a deed to appel-

lants and then declare forfeiture of their contract and

all moneys invested in the property, contrary to the

spirit and letter of the Contract and oral conversation

by the sellers’ agents at time of purchase, and in viola-

tion of NHA, WPL, EPC Act. OPA Rules & Orders.

and do so without redemption rights being allowed /

9. Can the State court deny Eugene F. Evarts his

full day in court and a trial on the merits, after full

tender had heen made through escrow, and after he

had acted as a prudent man in employing and paying

counsel to answer for him and deny him the protee-

tion of CCP 286-473 /

10. Can the State court apply the 4147 interest

rate rule on FHA loan balance in Reed v. Jones case

#13040, 1947, where the Contract Forms are identical

with appellants’, and arbitrarily apply 6.6% interest

rate on appellants® loan balance, in the Jones v. Evarts

case = 16869, and administer equal application of the

law and due process to appellants /

11. Did the method adopted by the State courts

prevent issuance of deed to appellants in violation of

State escrow laws and thus deny them due process /

I re en ee oe . here

4

%

*

>

6

12. Can Eugene K. Evarts be refused the right to

testify for his property rights in his own behalf,

against different parties and issues, after all appellees

had answered and filed a cross-complaint in his action

L.A. #597850, thus waiving their claim to res adjudi-

cata, without denying him due process of law and equal

application of the law, where he was not made a party

to the Quiet Title agaist hin, when he was in joint

possession of said property ?

13. Does the Federal law permit the method

adopted by the State court to deprive appellants of

their property rights of this house which carried Emer-

gency War Housing Loan Number 604-21810, under

FHA Title 604, Section 702, 1-56, 24 CFR.

STATUTES INVOLVED

The pertinent statutes involved are: 28 USCA

Rule 57; Rule 40; Rule 63; 28 USCA Sec. 41 (1); See.

2072; Sec. 1331; Sec. 1342; Sec. 1343; Sec. 220; See.

400; NHA as amended and Emergency Price Control

Act 1942 as amended.

STATEMENT

The Circuit Court of the United States affirmed a

Judgment dismissing this declaratory relief action, is

in violation of the United States Constitution lack of

Due Process and Equal Application of the Law, 24

CFR Part 702, 50-56, “as Abhended for priority con-

struction material assistance,and application for FHA

Title-604 Loan Insurance guaranteeing to buyers and

7

all subsequent buyers agaiust increasing the maximum

approved ceiling sales price and limiting extra charges

to those allowable by NHA, (‘I'r. 4-5-9) Commissioners

Rules and Orders of FHA, OPA, HHFA and War

Housing Insurance Law.

The Federal maximum approved ceiling sales price

(Tr. 4, 1. 15) was set by Federal FHLA Commissioner

and/or other Commissioners of price fixing Federal

agencies at $4500. when sold to Kugene F. and Mon-

rova 8S. Evarts, petitioners, in 1944. The sales contract

on this home is not subject to any State law or statute

in violation of the Federal law, or of rules and orders

of Commissioners and Federal agencies, Edicets and

Kixecutive Order made by President of U.S. in time

of war.

There were 4 Exhibits filed with the oral argument

of appellants before the Circuit Court. Contracts of—

1. February 17, 1944 (Tr. 4-5) no interest required

on appellees’ equity.

2. August 1, 1944 (Tr. 4, 1. 23:5, 1. 2:8, 1. 20) 6.6%

interest on appellees” equity, added to buyers’

costs.

}. Purport escrow instruction of June 6, 1948

(Tr. 6, 1. 20) which credited only $1330. of

$2879.33 paid on account, appellees stated 6.6%

interest was charged on the FHA loan in com-

puting figures, ‘Pat. superseded the 444% origi-

nally figured by using regular FILA amortiza-

tion chart.

4. Copy of Loan Commitment for new $4700 loan,

(Tr. 10, 1. 10).

8

The first Contract showed payment of $50. on ac-

count of purchase price (Tr. 4-5). The deferred pay-

ment of appellees’ equity was $683.23 on August 1,

1944.

In 1946 (Tr. 5, 1. 22; 6, 1. 16) appellants had paid

appellees equity in full, but they refused to execute a

deed to them as requested (Tr. 8, |. 24). Appellants

continued payments (to avoid litigation at this time)

and overpaid appellees an additional $480, on equity

claim until June, 1948 (Tr. 7-12) when $5.67 was re-

turned by appellees to them, who then claimed over-

payment (Tr. 9, 1. 1) had been made. Appellees still

refused to give necessary clearance approval to allow

appellants to apply for Substitution of Liability of

FHA loan balance, demanding appellants sign escrow

instructions that forieited many of appellants’ con-

tractual rights.

That in addition to the $2879.33 paid appellees,

appellants tendered for a deed by an escrow commit-

ment a further sum of $4700, making an offer to pay

in all, $7500. for the home on which the maximum

ceiling price was $4500. for a deed. The tender was un-

justly refused.

In September, 1948, prior to appellants filing their

equity case LBC =15081 (Tr. 10, 1. 22) the Long Beach

Superior Court had in 1947 handed down a decision

in Reed v. Jones Bros., LBC #13040 (Tr. 12, |. 24) filed

by a committee representing several hundred buyers in

San Antonio Heights Tract #12854) that 414% inter-

est of FHA loan balances was the maximum interest

that could be charged, and not the 6.6% interest.

9

The 2nd Contract of August i, 1944 (Tr. 5-3-18)

stated appellants could not rent their property without

written consent of sellers, which appellees refused to

vive. This was detrimental to buyers, constituted a

denial of due process to buyers, who had acquired all

property rights in said property by virtue of money

paid outside of escrow, possession given and taken by

buyers under both Contracts (Tr. 11-13).

There was no discussion of the Contract of Febru-

ary 17, 1944 by the State Court in LBC #15081 where

all three contracts were placed in evidence (Tr. 8-15).

This was a denial of Due Process. This said action

was brought by buyers to ascertain amount due under

the Contracts to be paid to acquire a deed. (Tr. 13-4).

There was none outstanding to appellees on their

equity. The Federal law allows a FHA loan to be paid

off in full at any time with only a nominal cost to the

individual.

Before the appeal court heard the appeal =15081,

C. J. Jones filed (Tr. 13-25) action LBC 16869 to

Quiet Title against appellants, Eugene F. and Monrova

S. Evarts (Tr. 13- 25, 14-1).

A demurrer of an appeal pending tiled for Monrova

Evarts (Tr. 30-31) was overruled, counsel of buyers

neglected to appear for Eugene F. Evarts though em-

ployed to appear for both in said action. Appellees’

counsel knew buyers counsel had been employed to

appear for hoth of them, but became ill. A default

was taken against Eugene F. Evarts without his know]-

edge after his attorney neglected to appear for him.

(Tr.14-21.) Their attorney died before the trial (Tr.

14-9).

PE Tim! SRS gg a Pee ee ee ee I el to a a se

10

The request by Mrs. Evarts to have her husband

act in Pro. Per. for her was denied, (Tr. 15-7) as also

her motion for Duces Tecum to Produce Accounts and

Records required to be kept by FHA on these proper-

ties, were denied (56 US Stat. 179 (4) (5)). Had these

records been produced the excessive charges that ap-

pellees had demanded buyers pay in violation to the

maximum sales price on the property and other viola-

tions would have appeared to the court. Failure of

this information deprived appellants of their full day

in court and due process of law, in violation of their

Constitutional rights.

In 1950, two years after full cash tender to appel-

lees in 1948, herein above cited, appellants made and

delivered to Eugene K. Evarts (Tr. 10-22, 12-7) for

valuable consideration, a deed to him for 90% interest

in their property, retaining 10% therein and placed

said Eugene K. Evarts in joint possession of said

property with buyers. (Tr. 12).

Appeal was taken in LBC #16869 (C. J. Jones

Quiet Title action) by Monrova S. Evarts. J udgment

was affirmed. She was denied benefits of Reporter’s

Transcript (Tr. 18) though fully paid for. It was not

delivered hy the Reporter in time to be considered by

the court, even on Motion of Rehearing of the appeal

and not considered on a hearing by the State Supreme

Court for the same reason. This is claimed a denial of

due process, denying Eugene F. Evarts also their full

day in court (Tr. 12),

11

Appellees subsequently dispossessed appellants and

Kugene kK. Evarts who was not mentioned in complaint

or Lis Pendens, of possession of their property. (Tr.

17-6).

In 1952 Eugene K. Evarts filed action #597850

(Tr. 16, line 16; 31-32) against C. J. Jones, C. S. Jones,

Jones Bros., C. J. Jones & Associates and San Antonio

Heights Tract to quiet his title to said property. The

parties to this action were different (Tr. 18, 1. 18) as

was also the cause of action than #16869 and #15081.

Judgment against buyers in their action £15081 was

not conclusive against Eugene K. Evarts or, in #16869

Jones’ action.

Eugene K. Evarts was denied due process when

not permitted to testify on his trial. The court holding

the Quiet Title action of C. J. Jones (#16869) was

conclusive against him, because he was in privy with

his grantors (Tr. 17, 1. 9). He was not. He had acquired

his title after their full right to a deed had been fully

established by payment of large percentage of the pur-

chase price and full tender of balance, plus having

possession, and by full payment of Jones’ deferred

equity.

Eugene K. Evarts’ trial was had, after each of the

parties had filed an Answer and Cross-complaint. In

this action the court without notice, struck all parties

except C. J. Jones, and judgment was granted only to

him, on his Answer and Cross-complaint over the ob-

jections of Eugene K. Evarts’ counsel (Tr. 18, 1. 18).

That all the procedures above set forth herein are

claimed to be a denial of due process of law established

te ad ee ee PELL AY So CSE EL

12

by Reed v. Jones Bros. in LBC #13040 and Article 1,

Sec. 3, 13 of California Constitution and VI and XLV

amendment of Federal Constitution. (Tr. 19, Ll. 1; 20,

L. 1).

REASONS FOR GRANTING WRIT

1. That the failure of the State court to direct

issuance to appellants Eugene F. and Monrova 58.

Evarts and Eugene K. Evarts of a deed in accordance

with buyers’ Contract is against law, and was in vio-

lation of buyers’ Property Rights under FHA Title-

604 of NHA, and a direct violation of State courts de-

cision in Reed v. Jones Bros. in 1947, fixing 444% on

FILA loan balances of buyers under these Contracts.

And not 6.6% interest on FHA as this would increase

the total purchase cost above the Maximum Approved

Ceiling Sales Price, over the amount allowed by law.

And this was against public policy in 56 US Ct. 179

(4) (5) and would in that 6.6% interest constitutes an

unjust enrichment (Windfall Profits) in violation of

the jietter and spirit of appellees’ Agreements for H-2

priority building material assistance, at the time of a

national war emergency declared by the President un-

der powers granted him by Congress. These Subdivi-

sion Contracts included all the protection of provisions

of the NHA as though fully set forth therein, in each

contract, and in appellees’ Contracts signed by them

with the Federal Government, to secure prority assist-

ance for construction and financing of houses of this

subdivision, which carried War Housing Insurance 24

CFR Part 276-8; See—

National Housing Act (1944) 24 CFR Supp.

p. 147 and esp. Part 702.10 (2) p. 1824; 702-

13

OO (a)-90 p. Ts41; 7FO251 (e) p. 1834 (1)

IS41; 702.51 (¢) (4) p. 1842; 702.53 (a) p.

1843;

24 CFR Sec. 202.8; Sec. 283.6; Sec. 221.17;

Howard v. U.S., CCA La. 125 F. 2d 986, 991:

12 USCA par. 64, Garvy v. Wilder, CCA Il.

121;

Nelson v. Penn.—very recent US Sup. Ct. De-

cision. (Fed. court lias jurisdiction. )

For appellees to refuse to place deeds to appel-

lants in escrow as provided for in the Emergency War

Housing Contracts, when all payments had been paid

to them for their equity, was against public policy and

Mederal Housing law, made to protect citizens living

in critical war areas and of fixed and limited means.

and to stabilize prices, to eliminate profiteering, to

prevent manipulation of publie funds for private

agerandizement, and control excessive prices leading

to inflation.

Emergency Price Coutrol Act as Amended:

Vakus vo U.S., 321 US +14, 88 Lied. 834: Sup.

Ct. 660;

(1943) 24 CFR Sec. 202.8; Sec. 2774b; See.

283.6; Sec. 202.7¢:

(1944) 24 CFR Part T0211 (3) (¢) (1) p.

1836;

Osboru v. Osborn, 42 C (2) 363 (2),

Brews

14

3. The refusal of appellees to aecept full cash

tender offered through escrow and deliver a deed to

buyers, then subsequently throw them out of posses-

sion of their property, and take and store their belong-

ings, Was against public policy and against the law, as

established by the State of California to prevent dupli-

city in dealings and to keeping families off charity

rolls and protect their property rights under the Fed-

eral Constitution and Escrow Law of California Stat-

ute (1947) Sec. 12—2126, 2130.

H.0.L.C. v. Wash., 161 BP. 2d 353, 108 Ut. 469;

(1942) Cavos v. Geihsler, 109 Colo. 163; 123 P.

(2) 823 note 1;

Hasson v. Lony Beach, 83 CA (2) 745, 198 P.

(2) 787;

Snyder v. Mass., 291 US 105;

Screws v. U.S., 324 US 95;

Brooks v. Fidelity Loan Assn. 54 Cal. App. (2)

130;

Estate of Reed, 25 CA (2) 367.

4. Appellees further violated State and Federal

decisions by disturbing the ownership of Eugene K.

Evarts who was not made party to their suit or Lis

Pendens, constitutes denial of due process and equal

application of the law.

Miller v. Long, 152 F. (2) 196, 197;

Moore v. Etre Co. Agr., 12 Fed. Rules 6, note 2.

5. The District Court erred in failing to realize

in a Declaratory Relief action between parties resident

15

of the same state, there is required no diversity of

citizenship to confer jurisdiction o1 the Federal court.

under 28 USCA Rule 57, aud matters falling under

Emergency Control Act of 1942 as amended, N HA,

OPA, WPL, HIUFA, FHA, Exe. Edicts, Commission-

ers Acts, Orders & Rulings and other Housing Acts of

Congress.

Brown v. Allen, 233 US 525:

Jacobson v. Mass., 197 US;

8 USCA See. 43;

Art. 1, Sec. 3, 13 of California Constitution:

NIV Amendment of United States Constitu-

tion;

Taylor v. West. States Land, ete., 77 CA (2)

869 ;

Mooney v. Holohan, 294 US 108.

6. The 9th Cireuit Court permitted filing of Oral

Argument and 4-Exhibits by comparing the Exhibits.

substantial evidence of the variance is evidenced.

Piching v. Penn R. Co., 155 F. (2) 242.

7. The 9th Circuit Court's Opinion failed to up-

hold Congressional Acts aud Federal law wherein

any cost necessarily incurred by buyers, from the

time of purchase of their home to the time receiving

title policy showing property clear of all debt, and a

deed recorded, costs MUST NOT EXCEED the

MAXIMUM allowed Approved Ceiling Sales Price of

$4500. And the total payment “of whatsoever kind

or character paid in order to acquire a deed” is in-

cluded in this ** Maximum: Approved Sales Price.”

OR? PPS

16

(1944) 24 CFR Supp. Part 702.56 (a) (¢) p.

1844;

Fullerton Krueger Lumber Co, v. No. P. R. Co.,

266 US 435;

Pub. Serv. Com. v. Baterville Tel. Co., 2A US

6;

298 US 296; 298 US 238.

8. Is not the Principle to lead the Incident, or

Edicts and Exe. Orders of the President of the United

States and Commissioners fixing Federal Agencies’

Rulings, more important than whether the State or

Federal court enforces their Federal Rulings and

Orders and Laws.

24 CFR Sec. 801.

9. Appellants are informed since the hearing in

the Circuit Court the FHA loan on this property has

now been paid off and there is no longer a question of

Substitution of Liability, would it not be the duty of

this Court to direct appellees to issue the deeds to

appellants, and pay back all damages and expenses

they have sustained ?

CONCLUSION

The public policy of the State and Federal courts

should be construed so as to conform to the Constitu-

tion of United States property rights also protected

under NHA, 24 Code of Federal Regulations and to

protect all buyers of FHA Title-604 H-2 homes under

the principles handed down by Congress binding on all

17

State and Federal courts in favor of appellants, peti-

tioners.

This Court should take jurisdiction herein, in order

to carry out the purpose and spirit of the FHA laws

and uphold the rights of American citizens of small

means in the possession of their FILA financed prop-

erties,

There have been many hundreds of property buyers

Whose rights are involved in like alleged violations,

and the status of their FHA Title-604 Contractual

Rights are in similar jeopardy locally* and in other

places throughout the United States, petitioners are

informed.

Appellants have been put to creat cost of litigation,

in failure to obtain deeds under NEHA laws. That this

Court has jurisdiction to direct appellees to convey

clear deeds to appellants and put them back in posses-

sion of their property and vive them the relief prayed

for in the Distriet Court.

WHEREFORE, by reason of the foregoing facts

and law, this Petition for a writ of preemptory cer-

tiorari be granted and relief above prayed for be

granted appellants,

Respectfully submitted,

, / GZ f ELON G. GALUSHA

Yn FG. wba Counsel for Petitioners.

°ULS. District case 218905 TOPH Fourts 6 Meers. ot al.. another FHA Title

4 case in which substantial violations of price txing laws were alleged. Case

was dismied by counsel after order to do « by Superior Court and with denial

of permission to appeal to Supreme Court. Re Cheneood. nS U.S. 443.

OOOO AE ET ON NE 2 LR es Or 9 Ree eee eer,

APPENDIX A

OPINION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUGENE F. EVARTS, MONROVA )

S. EVARTS, and EUGENE K. )

EVARTS, )

Appellants, ) No. 14,761

vs. ) Dee. 9,

C. J. JONES, ©. S. JONES, JONES ) 1955

BROTHERS, C.J. JONES & ASSO- )

CIATES, et al., )

Appellees. )

Upon Appeal from the United States District Court

for the Southern District of California.

Central Division

a

e,

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ae.

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&

£é.

- 7s. < 4

No ete

BEFORE: HEALY, BONE, aud CHAMBERS, Cir-

cuit Judges

PER CURIAM

This case is here on a judgment of dismissal of

appellants’ complaint for want of jurisdiction.

The complaint shows affirmatively that all parties,

both plaintiff and defendant, are citizens and residents

2

of the State of California. The suit has to do only with

a controversy arising out of the construction of a con-

ditional sales contract, presenting no federal question.

Affirmed.

(Endorsed:) Per Curiam Opinion. Filed Dee. 9,

1955.

Paul P. O’Brien, Clerk.

APPENDIX B

PERTINENT CASES CITED

Fullerton Krueger Lumber Co. v. No. P. R. Co., 266 US

435:

‘*Certiorari proper to review a judgment in a suit

in which a right under an Act of Congress was

claimed and denied.”’

Picking v. Penn. R. Co., 155 F(2) 242:

‘*When a federal statute condemns an act as un-

lawful, the extent and nature of legal consequences

of the condemnation are ‘federal questions’ the

answers to which are to be derived from the stat-

ute and federal policy which it has adopted.”’

USCA Const. Art. 6, el. 2.

In Estate of Perryman, 113 CA 2d (5 USCA’ See. 691,

Inc. under Civ. Serv. Ret. Act) :

‘Rule in these cases is that the Act of Congress

prevails over conflicting state law, in a field prop-

erly within the jurisdiction of the United States.

and to the extent that this field is oceupied by the

federal law.”’

298 US 296:

***The Constitution and the laws of the United

States which shall be made in pursuance thereof—

shall be the supreme law of the land.” The su-

premacy of the constitution as law is thus de-

clared without qualification. The supremacy is

absolute. ”’

4

Screws v. United Siates, 324 US 95:

‘That Due Process prevents state action which

offends some principle of justice, so rooted in the

traditions and conscience of our people, as to be

ranked as fundamental.”’

Cavos v. Geihsler (1942) 109 Colo. 103, 123 P(2) 822—

Note 1:

**Where under a contract of sale, a purchaser has

performed to the extent that he has a substantial

interest in the property, a court of equity will not

require him to sacrifice such interest without rea-

sonable opportunity to protect it through redem p-

tion, such as is afforded in mortgage foreclosure

proceedings.”

Brooks v. Fidelity Loan Assu., 54 CA (2) 180 (4):

‘Speaking of tender unjustifiably refused:

‘stopped interest running—in fact stopped all the

incidents of the original obligation itself, shorn of

all its incidental burdens.’ ”’

California Statute (1947) Escrow Laws’ Sec. 12, Chp.

921, pp, 2126, 2130:

**Escrow Instructions must be mutually binding

on all parties.”

Osborn v. Osborn, 42 C(2) 363:

**At the time of the execution of the contract of

sale, the grantee acquires an equitable title to the

estate being sold, the grantor retains the legal title

as security for the purchase price. The legal title

passes to the grantee at the time of his completion

of the conditions precedent, whether or not the

escrow holder gives him physical possession of the

deed.”’

5

Miller v. Long, 152 F(2) 196° 197:

“The United States Constitution governs in all

state and federal courts and is binding on Con-

gress.”

_ SANCTITY OF FEDERAL CONTRACTS

National Housing Act as Amended—Emergency Price

Control Act as amendiment—1942.

(1944) 24 CFR FHA:

‘Insured mortgage binds the contractor to abide

by every regulation included in the particular code

under which a loan is made in addition to every

applicable regulation, included and set forth in

the entire NHA and all its amendments, with the

i: same force and effect as though they were part

he and parcel of contracts executed for FHA Insur-

ance or Priority Assistance.”’

(1943) 24 CFR (1941) Sees. 277.4b, 278.11, 16 and

283.6:

** Builders of FHA subdivisions must comply with

all contract provisions approved by the Commis-

sioner.

24 CFR Sec. 202.8:

of ‘Commissioner's approval on property for Sale

@ or Rent prior to beginning construction and to the

tle disbursement of any portion of the proceeds of the

He loan for any property, which is insured, shall sub-

on mit to the Commissioner a request for preliminary

he approval of the transaction on a prescribed form.

approved by the Commissioner provided for, on

this application, shall not relieve the insured from

compliance with any regulations.”

(1944) 24 CFR p. 147, Sec. 221.17:

Maximum rate of interest on FHA not to exceed

414%, likewise—Sec. 202.7¢ and Part 702.51(a) (4)

p. 1842:

*** Approved sales price’ shall be the sale price

stated for the unit in the application . . . which

shall be the total consideration paid as purchase

for such unit. . . . There shall be excluded from

approved sales price those incidental charges which

a purchaser of real estate customarily assumes in

the community where the real estate is located.”’

702.10(2) p. 1834:

** *Sales price’ means the total consideration paid

by the purchaser for the dwelling.’’

24 CFR 702.11 (3)(¢)(1) p. 1836:

**Sales prices . . . shall not exceed the respective

maximum amounts permitted by the conditions of

the application for priority assistance authority to

begin construction.”’

702.50(a) p. 1841:

‘The purpose of 702.50-56 is the establishment of

sales and procedures for taking the construction

of private H-2 housing and the rent and sale there-

of in accordance with the responsibilities of Na-

tional Housing Agency.”’

702.50(¢) :

**Upon approval of such application and the issu-

ance if any, of any appropriate preference rat-

ing .. . the applicant and all successors in inter-

est to the approved application . . . or to any

property construction with the assistance the: eof,

shall be bound by the terms of such application and

preference rating and of all ayplicable rules, or-

ders and regulations.”’

702.51(a) (1) p. 1841:

“Private H-2 housing ‘includes all construction

hereunder which received priority assistance and

authority to begin construction pursuant to H-2.’ ”’

702.53(a) p. 1843:

**For the duration of the National Emergency de-

clared by the President on Sept. 8, 1939, all pri-

vate H-2 housing may be rented or disposed of by

original or subsequent owner, only as provided in

pars. 702.50-702.56.

(1) In the event that this application provides

for sale the housing may be sold (or resold by a

purchaser) at an amount not exceeding the ap-

proved sales price. . . . In the event the housing

is to be sold ‘approved sales price’ shall be ap-

proved within the limits of—H-2.”’

702.56(a) p. 1844:

The provisions of 702.50-56 shall be binding upon

any person in addition to the original owner who

shall hold any right, title or interest in or to any

private H-2 housing.”’

24 CFR Sec. 801.1:

‘It is mandatory for the builders, suéing federal

Housing Credit under NH A to make all their deal-

ing with the public on a basis of good faith in

which housing shall be offered in vood faith . . .

for sale or rent.”’

24 CPR Sec. 840.48(b) :

‘Any offenses (under NHA) committed prior to

June 30° 1947 (32 CFR, 1947 Supp.—1300.201 to

3000-269 Revised Procedural Regulations 3 as

amended ) shall be treated as still in force.”’

Th RAY OO REE CORNEA ~ TERRE rt! em e COPE Me OE oon Paz * wre

Due service of the within and receipt of thre

copies thereof is hereby acknowledged

of April, A. D., 1956.

Attorney for Respondents.

SUBJECT INDEX

PAGE

The facts alleged in petitioners’ pleading disclose a complete lack

of jurisdiction ................. 1

RS I ee EE TLE 2

No federal question or the construction of any federal statute

SINE. Sidtitlanesitatuacttindlessiiin sed 3

Appellants have exhausted all of their remedies of appeal in

the state courts of California and the state court decisions

A brief summary of the three state court proceedings referred to

in the complaint that have become final... 3

a

In the absence of a diversity of citizenship the District Court

of the United States has no jurisdiction... 6

II.

The allegations of the complaint are devoted entirely to facts

concerning a controversy over the construction of certain

provisions of a conditional sales contract for the purchase

of a parcel of real estate in the City of Long Beach and

there are no allegations of any matters which raise any

federal question, and the District Court accordingly does

not have jurisdiction of this action... cece. 7

ITI.

It appears on the face of the complaint in this action that the

Supericr Court of Los Angeles County rendered judgment

in three cases and that appeals were perfected and the ap-

peal courts affirmed the judgment in each case adverse to

the appellants, and those judgments have become final,

therefore this court is without power to review or set aside

ee 9

CNICEOR ccccccccrccccececes 10

TABLE OF AUTHORITIES CITED

Cases PAGE

Biggs v. Ward, 212 F. 2d 209. 10

Columbus R., etc. Co. v. Columbus, 253 Fed. 499, 39 S. Cr. 349,

249 U. S. 399, 63 L. Ed. 669 9

Guy v. Utecht, 144 F. 2d 913 10

Howard v. Dowd, 25 Fed. Supp. 844 —

McLain v. Lance, 146 F. 2d 341, cert. den. 65 S. Ct. 1183,

325 U. S. 855, 89 L. Ed. 1976. 10

Parker v. Carey, 135 F. 2d 205 a on

Salem Trust Company v. Manufacturers Finance Company, ‘26

U. S. 182, 68 L. Ed. 628, 44 S. Ct. 266. 6

RuLgs

Federal Rules of Civil Procedure, Rule 84 8

STATUTES

United States Code Annotated, See. 1332 cceesrene a

United States Code Annotated, Sec. 1332 A(1) : 6

IN THE

Supreme Court of the United States

October Term, 1955

No. 887

Evcene F. Evarts, Monrova S. Evarts, Euvcene K.

EVARTs,

Appellants and Petitioners,

vs.

C. J. Jones, C. S. Jones, Jones Brotners, C. J. Jones

& Associates, Sax Antonio HeIGHTs Tract, Jonn

Dor I to V, Jane Doe anp Doe I to V, Brack &

Wuite Compaxy I to V, Dor & Doe Corporation

I to V, Joun Green, doing business as Co-partnership,

Appellees and Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI.

The Facts Alleged in Petitioners’ Pleading Disclose

a Complete Lack of Jurisdiction.

The petitioners filed a suit in equity and for declara-

tory relief in the District Court of the United States,

Southern District of California, Central Division, on

January 28, 1955, and thereafter, respondents filed a Mo-

tion to Dismiss this the petitioners’ suit, upon these

grounds :

(1) That there was no diversity of citizenship between

the appellants and the appellees.

on

(2) That the appellants had filed actions in the courts

of the State of California and have exhausted all of their

remedies of appeal in those actions and said state court

decisions have become final.

This motion was heard by the Honorable Ben Harrison,

United States District Court Judge, on March 7, 1955,

and an order was made by him dismissing the petitioners’

cause of action for lack of jurisdiction.

Thereafter, the petitioners filed an appeal in the United

States Court of Appeals for the Ninth Circuit, from the

order of the United States District Court, and thereafter,

on December 9, 1955, the said Court of Appeals filed its

decision affirming the judgment of dismissal of the Dis-

trict Court, because petitioners’ complaint showed affirma-

tively that all parties, both plaintiffs and defendants, were

citizens and residents of the State of California, and that

the suit had to do only with the controversy arising out of

the construction of a conditional sales contract, and that

no Federal question was presented.

Thereafter, the petition for rehearing was filed with the

said Court of Appeals, and on January 23, 1956, an order

was made that the petition for rehearing be denied.

A summary of the respondents’ grounds in support of

its motion to dismiss is as follows:

No Diversity of Citizenship.

It is alleged in paragraph III of appellants’ complaint

that the appellants and the appellees are all residents of

Los Angeles County, California.

=~

No Federal Question or the Construction of Any

Federal Statute Involved.

It is alleged in the complaint that the controversy be-

tween the appellants and the appellees arises out of the

construction of a conditional sales contract entered into

between C. J. Jones, one of the appellees, and Eugene

F. and Monrova S. Evarts, two of the appellants, for the

purchase of a parcel of real estate situated in the City

of Long Beach, County of Los Angeles, State of Cali-

fornia.

Appellants Have Exhausted All of Their Remedies of

Appeal in the State Courts of California and the

State Court Decisions Have Become Final.

It is alleged in appellants’ complaint that three actions

were commenced in the Superior Court of the County of

Los Angeles and that judgments were rendered in each

of those three cases by a judge of the Superior Court and

in each case the judgments were adverse to the appellants

and following the rendering of those judgments, an ap-

peal was taken and a decision rendered by an Appellate

Court affirming the judgments in each case.

A Brief Summary of the Three State Court Proceed-

ings Referred to in the Complaint That Have

Become Final.

(a) The first action was instituted by Eugene F.

Evarts and Monrova S. Evarts in the Superior Court of

Los Angeles County, when an amended and supplemental

complaint for specific performance upon a parcel of prop-

erty was filed by them on September 27, 1948. A de-

murrer to this amended and supplemental complaint was

filed by the appellees on October 28, 1948, and this de-

murrer was heard on June 27, 1949, and was. by the Court

on that day, sustained with ten days’ leave to amend. No-

OT ee ee a

a ee

tice to appellants that the demurrer was sustained and

that they were given ten days to amend was served on

them on October 7, 1949. Thereafter the motion of the

appellees for a judgment of dismissal after sustaining

the demurrer with leave to amend, but no amendment filed,

was heard on February 27, 1950, and a judgment or dis-

missal was signed on February 28, 1950. An appeal

was taken to the District Court of Appeal, Second Ap-

pellate District, and on May 9, 1951, the decision of Divi-

sion Three of that Court was filed affirming the judg-

ment of dismissal and is reported in 104 Cal. App. 2d

109, 231 P. 2d 74.

(b) The second action was an action filed in the Su-

perior Court of Los Angeles County by the appellees

herein to quiet title to the same parcel of real estate as

is described in appellants’ complaint herein. That action

was filed on September 19, 1950, and after service upon

appellant, Monrova S. Evarts, a demurrer was filed by

her alleging that another action was pending concerning

this same parcel of real property. The action which she

referred to as a pending action was the above mentioned

first action. When the decision in that first case became

final, the demurrer of Monrova S. Evarts was set for

hearing and overruled and she filed her answer. The ap-

pellant, Eugene F. Evarts having been served and failed

to appear, his default was entered thereafter on January

25, 1952. The case was tried before the Honorable

George Francis and on February 13, 1952, said Judge

signed Findings of Fact and Conclusions of Law and a

judgment to quiet title in the appellees herein and against

the appellants. An appeal was taken in that case to the

District Court of Appeal and thereafter on December 2,

1952, a decision was filed affirming the Superior Court’s

r i

judgment. The decision is reported in 114 Cal. App. 2d

634, and in 250 P. 2d 671.

Thereafter a motion for a recall of the remittitur in

that action was filed and on April 2, 1953, the court denied

that motion.

(c) Eugene K. Evarts, one of the appellants herein is

the adult son of appellants Eugene F. Evarts and Mon-

rova S. Evarts and has alleged in paragraph XXIII of

the complaint that a 90% interest in the property in-

volved in this and the Superior Court cases was trans-

ferred to their son, Eugene K. Evarts, and he filed a

quiet title action August 9, 1952, in the Superior Court

of Los Angeles County against the appellees. The deed

to the undivided 90% interest to said property, dated

January 1, 1950, was not acknowledged until April 14,

1952, and was recorded the next day, April 15, 1952, in

the office of the County Recorder of Los Angeles County.

A notice of pendency of action in the second case above

mentioned was recorded in the office of the County Re-

corder of said County on September 15, 1950,

This case was tried before the Honorable Joseph Maltby,

Judge of the Superior Court of Los Angeles County on

April 29, 1953, and on that date judgment was rendered

for the appellee herein and against the appellant, Eugene

K. Evarts. The trial court found that the appellee was

the owner of and entitled to the possession of the real

property and that appellant did not have any estate, right,

title or interest whatsoever in or to said real property.

An appeal was taken in said action to the District

Court of Appeal, Second Appellate District and a deci-

sion was rendered by the District Court of Appeal af-

firming the judgment of the Superior Court. This deci-

sion was filed on September 29, 1954, and is reported

in 127 Cal. App. 2d 623, and 274 P. 2d 185.

Babies stasiceiticie eed ni Sa ea Sek nbd RES

ole

ARGUMENT.

I.

In the Absence of a Diversity of Citizenship the Dis-

trict Court of the United States Has No Juris-

diction.

The District Court of the United States had no juris-

diction of this action unless there was an allegation in

the complaint that a diversity of citizenship existed be-

tween the plaintiff and defendants. The appellants herein

and plaintiffs in the District Court alleged in paragraph

III of their complaint that not only were all of the plain-

tiffs residents of the County of Los Angeles, but that also

that all of the defendants were residents of the County

of Los Angeles, State of California. Therefore, it ap-

peared on the face of the complaint that there was not

an allegation of diversity of citizenship, but on the con-

trary a positive allegation that the plaintiffs and defen-

dants were all residents of Los Angeles County. In the

face of such allegation the United States District Court

had no jurisdiction of the appellants’ action.

U. S.C. A., Sec. 1332 A(1);

Salem Trust Company v. Manufacturers Finance

Company, 264 U. S. 182, 68 L. Ed. 628, 44 S.

Ct. 266.

mex wn

II.

The Allegations of the Complaint Are Devoted En-

tirely to Facts Concerning a Controversy Over

the Construction of Certain Provisions of a Con-

ditional Sales Contract for the Purchase of a

Parcel of Real Estate in the City of Long Beach

and There Are No Allegations of Any Matters

Which Raise Any Federal Question, and the Dis-

trict Court Accordingly Does Not Have Juris-

diction of This Action.

The appellants alleged in their complaint that they en-

tered into a contract for the purchase of a parcel of real

estate and that if interest had been computed in a cer-

tain way as they claim it should have been on the un-

paid portion of the purchase price of the property, their

status under the contract would have been different than

as claimed by appellees. The state court agreed with the

construction as placed upon the contract by the appel-

lees, and held against appellants’ construction. Therefore,

the appellants were in default under the terms of their

contract and their interest terminated.

There is no F. H. A. loan involved in this action or

in any of the state court actions, as the appellees herein

were not lenders or the appellants borrowers under any

such loan. The conditional sales contract provided that

the property was subject to a loan which if the appellants

could meet certain qualifications and conditions could have

assumed, but the appellants could not and did not meet

these qualifications and others as contained in the condi-

tional sales contract, so that they never came into the

position where they were permitted to make payments

by

a

on the loan or have anything to do with it. Their sole

and only obligation under this contract was to make the

monthly payments as provided for thereunder. Therefore,

the appellants’ reference in the complaint and in the

brief to Federal housing regulations are entirely irrele-

vant to the controversy that the appellants themselves

started in 1948 by the filing of their complaint in the state

court against the appellees.

The allegations in the complaint in this action are

similar to those alleged in the pleadings filed by them

in the state court actions and upon which evidence was

presented by the appellants, both oral and documentary, to

Judge Francis. The appellants now seek to have their

case tried again by the United States District Court after

the Superior Court has in one case ruled that their com-

plaint did not state a cause of action and in another case

found adversely to the claims and contentions of the ap-

pellants and in the third case that their adult son was

not a purchaser in good faith of an undivided 90% in-

terest in the property.

We, therefore, most respectfully submit that appellants’

complaint fails to allege that their action arises under

any particular article or section of the United States Con-

stitution or under any particular act or section of any

Federal law or statute and all that is alleged is the bare

conclusion that a Federal question exists which is ineffec-

tive unless the matters constituting the appellants’ claim

for relief as set forth in the complaint on their face show

or raise a Federal question.

The forms 2-b-oc contained in the appendix of forms

under Rule 84 of the Rules of Civil Procedure indicate

that general allegations of the existence of a Federal

question are ineffective unless there are matters alleged

be

a

constituting the claim for relief which discloses or raises

a Federal question. There are, of course, no allegations

of any such matters in this complaint.

The only relief the appellants seek in this action, and

it is the same relief they sought in the state court, is

for a construction or interpretation as to the method

of computing interest under their conditional sales con-

tract for the purchase of the real property.

U.S.C. A., Sec. 1331;

Columbus R., etc. Co. v. C olumbus, 253 Fed. 499,

39 S. Ct. 349, 249 U. S. 399, 63 L. Ed. 669.

The trial court’s jurisdiction can only arise if the com-

plaint alleges facts which specifically present a Federal

question.

ITI.

It Appears on the Face of the Complaint in This

Action That the Superior Court of Los Angeles

County Rendered Judgment in Three Cases and

That Appeals Were Perfected and the Appeal

Courts Affirmed the Judgments in Each Case Ad-

verse to the Appellants, and Those Judgments

Have Become Final, Therefore This Court Is

Without Power to Review or Set Aside Those

State Court Judgments.

The appellants have alleged in paragraphs 19-24 of

their complaint that actions were filed in the Superior

Court of Los Angeles County, and that following the

entry of judgments in that court, all of which were adverse

to them, that appeals were perfected and that the Appel-

late Court affirmed the judgments of the Superior Court.

It is therefore apparent that the appellants have exhausted

all of their remedies in the state courts and as will be

=

noted in the summary of each of those three cases which

we have set forth above, the judgments in each case have

long since become final. The appellants now seek to have

the United States District Court review or set aside

those judgments of the state court which are between

the same parties and over the same subject matter. The

appellants in making this request disregard the well estab-

lished principle of law that the Federal Court has no

supervisory jurisdiction over the state courts, and that

state court judgments may not be reviewed by a complaint

in the Federal court.

McLain v. Lance, 146 F. 2d 341, cert. den. 65 S.

Ct. 1183, 325 U. S. 855, 89 L. Ed. 1976;

Guy v. Utecht, 144 F. 2d 913;

Parker v. Carey, 135 F. 2d 205;

Howard v. Dowd, 25 Fed. Supp. 844;

Biggs v. Ward, 212 F. 2d 209.

Conclusion.

Jurisdiction of the Federal District Court is deter-

mined by the allegations of the complaint and the appel-

lants have failed to allege any facts that confer such

jurisdiction. Therefore, the judgment of the District

Court to dismiss the above action should be affirmed.

Respectfully submitted,

GEORGE R. JOHNSON,

Attorney for Appellees and Respondents.