# Record and brief — General Houses, Inc. v. Reconstruction Finance Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0018%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1959 - **Citation:** 361 U.S. 896 ## Text IN THE Supreme Court of the United States a) ben TER Eee. GENERAL HOUSES, INC., a corporation, : : ae : : ee Le titvonenr, a VS. RECONSTRUCTION FINANCE CORPORATION, a corporation, MARLOCH MANUFACTURING CORPORATION, a corpora- , tion, THE GREENPORT BASIN “AND CONSTRUCTION—____-_————— COMPANY, & corporation, ELIZABETH W. TULLOCH AND CHARLES M. ROSS. as Executors and Trustees of the Estate of Marshall E Tulloch. Deceased. and FRANKLIN G.FLOETE. . .s Administrator ofGENERAL SERVICES. a ‘ 3 - ? in , Re spond ltt. ta" | | : PETITION FOR WRIT OF CERTIORARI TO THE oa -UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. ee iV ACE A Yn ne ¢ [Sar ssonthie is yeh bE NE OMe ( bdengwo. 3. Pliers gos" ~ oSTate 2-020 “@ Attorne ae gee Petitioner & we Ss ee Gee ‘ ‘ ARG oEs ee PAGE : | Citations to Opinions Below oe ~ *. ; : ; ; Stafement of the Grounds-on which the Jurisdiction of © this Court is Inveked ’ aah a The Questions Presented for Review cae - “eo : “Statement of: the Case 00... ROT Voth le a _» Reasons Relied Upon for the GriMting of the Writ 0. 10 Conclusion —............ oe OO EGE ONCE AE A IS ik 15 Se Prayer tor this Court's Writ of Certiorari: | lt _ Argument de 17 a ]; Ts Opinion. of Court cates cial afirming vara 2 “District Co areata. sa beigsbeumamcn dele tls Ancol tm cat 2 —~- °. Appendix IT ‘denial of mandamus by-Court of “Xppeals 22 - Appendix IIT; ‘de nial ‘of maindanitis: by Supreme € ourt ‘of the U hited States MEDEA eS YAIR IN Uinta easels eerste 24 . Appendix Iv : Saihieenes.. of, District Court oid noe ne a . . eS ee Appendix V; Reorganization P Tan No, Let 953 a ~—=—Nppendix VI; Act of July 30, 1953, as amended by 3 | Act of June 29,1954, -providing for Continpation — a of Pending Proce edings pe eri lb oper at ONE or SOR : al THORITIES Cases Brinkerhotf- Faris Trust & Sav. Co. v. Hill, 2st U.S. Dick-v. New York Lite 8 Co, 19S. Ct 22t 0 .- ~ . at. wet e : He : ee ie PAGE General Houses, Inc. v. Franklin G. Floete, as Ad- ministrator of General Serviees, etral, Loo Be (2d), See ee Bia td gh inet tek site 2 mot. . General Houses, Inc., v. The Honorable Walter Bo Bruchhausen, Judge of the District Court for the > Eastern. District of New York, 206 F » (2d) a hee, General Houses, Ine. ¥. The Honorable Walter Bb. -Bruchhausen, Nudge t. Bs. Supreme Court No. 768 wees. ¢ ........ cE We Demet Sey. SAE es ie Pr Reo Cae Be A General Houses, Inc., v.. Franklin’ @. +oete, ‘as Ad- ministrator of: General Services, et al. 166 Fed. Supp. 106. ..:...:......... ‘R.F.C. in the case as a defendant because, # ie ‘though as ans ™ a had never been ‘dissolved.’ Pet: @ on re ee « » . tioner’also’ moved the trial court to require both R. BC. and Flocte to answer Petitioner's Inter rogatories, without which answers Petitionér could not prepare its case for trial (102a-103a, 1172). On March 25, 195s, the trial Judge (Judge, Bruchhausen) denied Petitioner’s motion to make Flocte an additional defendant and orderéd that Floete be ‘*substituted’’ for RPC. (lloa-116a)? At the same time Judge Bruchhausen denied ,Petitioner’s motion to require answers to: be filed. by both R. F.C, att Floete to Petitioner's Interrogatories, with the result that Petitioner Was never able to get the essential evidence to, prove Petitioner’ s Causes of action against REA. ‘and the other defendants at a trial on the “merits in the trial court, and was forced to vo to trial without it. Petitioner claims that it was the reby deprived of its right to procedural due process of lew under the’ Fifth Amendment. ree 0 Plaintiff there cupon-promptlytiled-ainandatius proceed= ing in the United States Court of Appeals for the Second Cireuit on April -f, 1958, asserting its constitutional rizhts and asking for.the vacating of the order of March 20, 1958 (a) refusing to add Floete as an additional Wefendant and. . (b) refusing to order -both R.F.C. and Floete to answer . Petitioner ® Interrogatories before placing the case. on trial. The United States Court of Appeals for the Second Circuit denied this mandamus petition on April 28, 195s, upon the express eround that Petitioner could have. these matters reviewed by the present direet appeal (General Hoes; Ine. v. Bruchhausen, 256°F. (2d) 674) (Appendix IT to this Petition). jee _- Petitioner then filed another mandamus proceeding in ‘. this Court as General Houses, Tne. ve Bruchhiusen, No. “68 Mise., asking for the same relief. This petition was - denied by. this Court ow June 23, 1958, without opinion ° (Appendix Ill to this Petition). ee : 8. oe . ~ On May 20, 1958, while Petitioner's application for » -writ of. mandamus was still pending undetermined in this Court, the trial judge forced Petitioner to go to trial with- out requiring ¢ither R.E.C or Flocte to answer _Peti-. tioner’s Interrogatories, orcs preventing © Petitioner from preparing its case for trial against all of the de- fendants. In other words, thesforegoimg procedures in. the trial court effectively deprived Petitioner of its ‘day in court’? by preventing Petitioner from exercising its. peremptory right under Federal Rule 33 to proeure es. sential evidence to prove its case against all of the defend. — ants, in the form of: the answers of R. oC. and Floete to Petitioner’s Interrogatories. . Floete never filed any answer - ‘the Petitioner's Com. plaint or any other pleading in the case, either before or after being purportedly ‘substituted’? for R.F.C. ‘as a defendant. Nevertheless, his attorney appeared and par- ticipated in the trial. However, R.F.C., which had previ -ously answered Petitioner's Chnabeied, neither: appeared | nor participated, nor made any defense, at the trial. «The trial judge entered a tinal judgment on October 2 1958 against Ietitioner and. in favor of Floete (and. the other defendants) (Appendix -IV ito this Petition), but ‘entered no final juadqment either in: favor of or against R.F.C.) Thus Petitioner's cause of action agamst. RLELC. has never beer adjudicated either against or in favor of R.F.C The final judgment of the trial court was affirmed by the United States Court of Appeals for the Second Cireuit on June 1, 1959, in an opiniow which is reprinted in full a- Appendix 1 to this Petition and. which is reported a; General Houses, Inc. vo Franklin G. Floete, as Administra tor of General Services, et al., 267 FB. (2d) 306. Petitioner expressly raised and relied upon its constitu: tional right to keep R.F.C. as a defendant in fe case, . e ei, i) and to have e Petitioner’ s cause of action against RLFC. vadjudieated in this action, under Point IV of Petitioner’ = Brief (p. 40-1) filed in the€ ourt of Appeals. In support of Petitioner's Point IV, under the heading **The Trial _dudge’s Orders: Substituting Flocte Por ‘R.F.C. As De- fendant Were Brroneous. And Should Be Reversed Ou This Appeal”’, Petitioner relied upon the, same grounds for its position as were previously set forth in its. mandamus petition filed in the Court of Appeals on April 1, 7mm, in which Petitioner eited Hemingway v. Stansell, 106 US 3899, and other Federal Canes. : : Petitiquer also expre sssly raised ow relied upon its con- stitutional right to its ‘‘day in court’’ and its right to require R.F.C. and Floete to answer Petitioner’s Interroga- ~ tories as a part of Petitioner's right to due process of law under the Fifth Amendment in Point V of its Brief (p. — 42- 4) filed in the Court of Appeals. U ew te heading * “The Judgment Appealed From Should Be Revprsed - cause Plaintit? Was Deprived Of Its Right To Haye R.F.« . and Flocte Answer Plaintiff's Inte ‘rrogatories”’, ’ etitioner relied upon the mandatory latiguage of Rule 33. ofthe Fed- eral Rules requiring that Pkiintiff’s Interrogatories ‘ ‘shall be answered expressly and fully in writing under oath’. _ Petitioner there coiitended that the refusal of the trial - judge to contitue the trial of the case, and to. require R.F.C. and Floete ty answer Petitioner's Inter rogatories before Petitioner should be foreed to ‘trial, deprived Peti- tioner of its right to prepare‘its ease for trial and thereby effectively deprived Plaintiff of its ‘*day inXeourt’’ and its — right to procedural due. process of law in violation of the. ag Amendment, citing Brinkerhoff-Faris Trust & Sav. Hill, 281 U.S. 673, and othet Federal cases. It thus appears that Petitioner expressly raised and r¢- ‘lied upon its samé constitutional rights in both of the | " mandamus -_proecedings, and in the Court of Appeals on the direct appeal thereto in this case, upon which Poti- tioner now relies in this Petition. 10, REASONS RELIED UPON FOR THE GRANTING OF THE WRIT. ye - PETITIONER WAS DEPRIVED OF ITS CONSTITU- TIONAL RIGHT TO KEEP R.F.C. AS A DEFENDANT : IN THE CASE IN THE TRIAL COURT, AND TO " HAVE THE TRIAL COURT ADJUDICATE PETI- TIONER’S. CAUSE ‘OF. ACTION AGAINST R.F.C. THEREIN. Petitioner in its Complaint showed that it is the owner of an extremely valuable property right consisting of its claim against R.F.C. for $6,200,000 as damages ° for breaches by R.F.C. of its written contract .with Petitioner "dated. February 7, 1947. (4a-Sfa). This-valuable- property -_ - right is plainly such that Petitioner may not lawfully be deprived thereof without due process of law, in view of the Fifth Amendment ‘to the Federal Constitution. The order of March 25, 1958 entered by the trial judge. (Bruchhausen), insofar as it ‘‘substituted’’ Franklin G. Floete, as’ Administrator of General: Services, ‘in place -_ of defendant Reconstruction-Finance Corporation’ * (11a). effectively terminated and dismissed and thereby. destroyed Petitioner’s valuable property right to sue R.FC. for dam. ages for: R.F.C.’s breach of said written contract dated February 7, 1947, in violation of the Fifth Amendment. The fact that the Federal Congress adopted President, FKisenhower's so-called ‘‘Reorganization Plan No. 1. of 1957"? on June 30, 1957, in which it is provided that R.F.C: he thereby {‘abolished’? (15 U.S.C.A., See. 601), did- not thereby “dissolve?” R, F.C. or terminate or extinguish its corporate existence ( Appendix V to this Petition). 11 This crucial distinetion between ‘the abolishime nt oof RoC. on the onte haned, and its dissolution or extinetion; on the other hand, w as. consides ‘ed and relied upon. by this Court in //e ming au. Stansell, 106 U.S, BO, - In the Hemingway cause; In an unanimous opinion by Judge Gray, this Court expressly held that a state statute purportedly : abolishing” A municipal (state) ele onbutinn “did not dissolve or ‘extinguish the corporation.’’ Accord- ingly, this Court held that the plaintiffs in the Heming- ¢: Way Cast he right to continue to sue the original municipal corporation, whieh -had heen abolished but had not been dissolved or extinguished. P The effect yl the Me ming ay case, When applied: to the ease at bar, is that, even ‘thougli the, so-called * Reorgani- zation Parr No. 1 of Tye purportedly ‘abolished’? the- functions of RFC. as a Fede ral government Bop ckaeoneng nevertheless it did not thereby “dissolve , * terminate ‘or extinguish RLFC. | as a governme ntal sistcgeiioe But even if RUE.C. had been “dissolved”, tix distini- euishvd from ‘its ‘+ functions’ being “abolished”, never- theless Petitionér was entitled lo cpntinue to litigate its Cause of action against R. BAC. as a defendant in this case, in view of Section 105 of the Reconstruction Finanee Cor- Poxation Liquidation Act, as amended on June 29, 1954 (68 Stat. 320) (15t U.S.C.A. | 1957, Cumulative Annual. — - i a, _ Pocket’ Parts, See. 603, p. 30), which expressly provides — that no suit, aétion or other proceeding lawfully com. - menced against REBP.O. shall abate by reason 6f the dis. ~olution of the corporation’. (Appendix VI to this Peti- | tion). Moreover, it was further prov ided in the amended See- tion 105 that in the event REC. should he dissolved, then Within 12 months the reatter the court in whic h any suit . % / nc a was then pending dzainst R-P.C. ‘tniay’* allow said: suit to be maintained against the officer or agency of the CGiov- ernment ‘performing the functions with respect to which, ‘any such suit was commenced. Since RBLCL was) nef dissolved, but its functions Were merely, q tbolished™, the trial court in this case did not have any ee to substitute Floete for R.F.C. under: amended Section 105 of the e- construction Finance Corporation Liquidation Act. As indicated above, the Court of Appeals denied Peti- tioner’s mandamus petition secking to require Judge Bruchhausen to vaeate his order of Mareh ti, 1s, pur- * po.ting ‘to substitute Floete for RELC., upon the express _ ground that-Petitionér could have its right to keep REPL asa defendant in the case revie wed by this direct appeal, However, the Court of Appeals in its decision in this:case (p. 22 of Appendix T below). ¢in affirming the jadgmes of the trial court, merely noted that: se ia ~*BPranklin Go Floetes as Administrator of Genera! “Setvices, lias been substituted for the Defeidant naa.” a ei sg techy A The Court of Appeals, therefore, did not give considera: . tion to and pass upon Petitioner's right to keep RBC. in the case and to require the trial judge to adjudicate: Pet. tioner’s cause of action against R. Me This Court i in denying Le titioner's Tight to amandanus writ, which petition Was based tipon substantially the same grounds as Petitioner's dike petition in the Court of Ap- peals, wrote no opinion. and gave no grounds for its de- nial-of the petition (Appendix IIL to this Petition), How eves, it may ‘safely: be assumed that this Court's ground ‘*was the same as that of the Court of Appeals, e.. that Petitioner was not entitled to a writ of mandamus: because Petitioner's right to an adjudication“of its cause of action against R.F.€, could be reviewed by the Court of Appeals, and by this Codrt by, the issuance of its writ of certiorari, as prayed in this Petition. 13 Petitioner's position, therefore, is that it has been de- prived of its right to keep RUF.G. as a defendant in this ease; that Petitioner'’s Complaint shows that Petitioner is entitled fo a valuable property right consisting of its claim against RORLC. arising by reason of R.F.Co% breach of its written contract: with Petitioner ; that this is a property right of which Petitioner may not Jawfally be deprived — — under the Fifth Amendment without due- protess of law; and that Petitioner has not had its **day in. count” and due process of Jaye to establish its eanse of action against RoRLCL by reason of the refusal hy hoth the Arial court and - the Court of Appeals to adjueicate Petitioner’ x said cause - oF action, apparently both courts relving upon the er- i reneous theory that RLFC. was abefished by the adoption ‘hy the Padleral Congress of ‘Reorganization Plan No. 1 of INT". despite the tact that this Reorganization Plan, al- thongh it purported to abolish RF.C., did not dissolve or extinguish RBC. this being the crucial distinetion made by this Court in Mencdinqueay v. Stansell, 106 U.S..399, PETITIONER WAS DEPRIVED OF ITS CONSTITU. ‘TIONAL RIGHT TO HAVE R:F.C. AND FLOETE ANSWER PLAINTIFF'S INTERROGATORIES PUR. SUANT TO RULE 33 OF THE FEDERAL RULES. Rule 33 of. the Federal feles’i is mondaters in language. It pe rmits any party to serve written inter rogatories upon any adverse party in order to prepare for the trial of the: case, Rule 33 expressly provides that. ; “The interrogatories shall be ams red separately a and fully: in writing under oath.’ * (Italies added.) The trial judge in his order of March 25, 1958 denied — Petitioner’ s motion for an ‘adjournme ‘nt of the trial of this - case unless and until RUF.C. and F locte should first answer . i . 1+ certain Interrogatories theretofore propounded by Pe. fifioner (15a), and thereafter compelled Petitioner to go to trial without this crucial evidence, thereby depriving Petitioner of its right to prepare its case for trial by pro- -euring- R.F.C.’s.and Floete’s answers to Petitioner's Inter- _ rogatories. : | | ’ Petitioner’s position is that it was thereby deprived of its “day ii court’ as a part of its. right to procedural due process of law in violatiq@ot the Fifth” Ame ndment to the Federal Constitution.” 2 This Court will notice — the opinion of the Court-of” . Appeals (Appeidix fT, pp. 21-22) that the Court of Appeal- expressly affirmed the trial court upon the ground that the trial judge, -having: tried the ease without ir jery, nade de- tailed findings of fact, which findings the ourt of Appeals held to be *‘clearly correct’’ This finding was based upon the record presented to the Court of Appeals containing the: evidence in the,tr ‘ial court, which record naturally contained ‘none of the crucial facts which: Petitioner would have been i a position to offer in evidence in the trial court, ‘and thereafter to, include. in the record on appeal, if Petitioner has not been deprived of but had heen granted its right to require R:F.C. and Floete to answer Petitioner's Interrogatories under Rule 33. Expresse ad in other words, no matter how justitfed either the trial court or the Court of Appeals may ‘have been in holding that, under the limited evidence in this ease which- ‘appears in the record, the final judgment against Peti- tioner and in favor of Floete and the other defendants (other than RLFC.) was corrects nevertheless Petitioner has been deprived of its right to procedural due process of law because it was prevented by order of the trial judge 15 est ee ee ’ ——een from obtaining under Rule 33 the crucial evidence neces- sary to support ts causes of action aginst R. F.C.-and the other, dete ndants herein, * Bi A Petitioner’ is not here nape thy correctness of the trial judge’s findings: of faet, o the Court of Appeals’ holding that such findings were tbe correct”’, both of which were exclusively based upon the evidence which was offered’ in the trial court. . What Petitioner is complain- ing of in this Petition is not: only that Petitioner has been deprived of its. constitutional right to have R.F.C. kept | in the case so:that Petitioner’s cause of action ‘against - a F. C. may be Adjudicated therein, but also that the trial court failed and refused to require R.F.C. and Floete to answer Petitioner's Interrogatories, so that Plaintiff was unable to prove. the facts - ‘necessary to support its causes of action against R. F.C. and the other’ defendants, In this case Petitioner has thu® been deprived. of its” substantial property right. by reason of R.F:C.’s breach of * its written contract with Petitioner without due process\ of flaw, as well as of its right to procediaral due process cof iaw by reason of its inability to obtain essential evidence to sup port its causes of action in accordance with Rule 33 of the Fede ral Rules, beth in defiance, of the provisions of the Fifth Amendment to the Federal ( ‘onstitution. Only hy this Court's issuance of .its writ of certiorari porsuant to this Petition can this result be prevented. : ‘\___ GONCLUSION. Petitioner recognizes that the granting of this Petition for Certiorari ls discretionary with the Court, and that > such w rit will not ordinarily che granted merely because of error by the District Court or the Court of Appeals unless such error contravenes fundamental ’ederal law. \ 16 ’ In the case at bar, the v iolation of Fe dg ‘al law is so plain: sn undeniable that Petitioner submits that it has been deprived of its fundame ntal rights under the Ly ifth Amend. ment to-the Federal Conetieen. PRAYER FOR THIS couRT’ s WRIT OF ‘CERTIORARI ) For reasons: apparent from the record and stated in this Petition for Certiorari, Petitioner respectfully prays that this Court issue its writ of ¢ertiorari to’ review. and reverse the judgment of the U nited States Court of Appeals for the Second Circuit in this case, with directions to-that Court to reverse the judzment ofthe District Court and / to direct the District Court (a) to vacate the order sub, stituting Franklin G, Floete, ax Administrator of General — Services, for R.F.C., and denying Petitioner's motion 40 require’ R.F.C. and Floete to answer Petitioner's Inter- rogatories under Federal Rule 33, and thereupon (b) to conduct a trial de noro in this case in.the Dis trict Court upon the merits of Petitioner's causes of action against R.F.C. = the other defendants. @ 28 Respectfully submitted, Horace A. Younes, | Attorney. for General Houses, Inc., a corporation, s ; Petitioner.. Horace A. Youne 435 South La Salle St... - a Chicago 3, Illinois Attorney-tor Gene ral House &, _Tne., a corporation, Petitioner. i ARGUMENT. CE This is not a’edse similar to the recent decision of this Court in Dick ve New York Life Insurance Co” 79S. Ct. W21, in which?’ Mr. Justice Frankfurter 's dissenting opinion objects to this Court's granting certiorari ‘to examine records for sufficiency of evidence’ ' following * a trial: on the merits in the trial court. The sole questions raisiid on this appeal are “constitu: tional que sfions., They are, first, whether Petitioner hav: ing made a contract with R.F.C. atid having sued R.F.C -for its breach. is entitled to kee ‘p RFC. as a defendant in . the case, to compel, R-F.C. as a defendant to answer Peti- tidner’s TInterrogatories under Rule 33. and to have an adjudication of its claim against R.F.C.. because of the fact that, although the functions of R.F.C. have been abol- ished, R-F.C. has never been dissolved or extinguished as- a corporation, cither hy ‘Reorganization’ Plan No: 1 of 1957," or otherwise. ee | In views of the decision of this Court in Hemingway v. Stansell, 106 U.S..399, Petitioner submits that the fact that the functions of R.F.C. may have been abolished did not have. the effect of either dissplving or terminating R.F.C. as a govermmental corporation, and. therefore Petitioner is entitled. to have discovery from R.F.C. under Rule 33 ‘and ‘to have its cause of action adjudicated in the trial court in this case, and to have R.F.C. kept as a defendaut -in the case for that purpose. ) ‘Tn caustruing ‘Reorganization. Plan No. 1 of 1057S, i it is obvious that if w as wot intended to dissclve’ RFC aad: ; was not intended t6 pe rmit.a court to elimindte RURLC. asia defe ndaut in pe nding: litigation aqgamst R. F. (., because the ef? ‘18 abe Mt: nee - amended Section. 105 of the Reconstruction Finance Cor poration Liquidation Act expressly provides that ‘No suit, action or other: proceeding lawfuliy Col. menced ‘by or.against [| R.F.C.] shall abate | by reason of the dissolution of the [RBLC.] ¢ ‘orporation, a au pendix «VI, p. 30). . If the ‘*Reorgani tion Plan No. 1 of 1997” heal dissole dy R.F°C. and had ated pending suits againat it akin Petitioner’s suit in this case), such 1 an“would have been “unconstitutional as _a_ deprivation of ‘the property rights of the R.F.C.’ Ss creditors (such as P etitioner) without due process of law. It,was no doubt for these two‘ reasops that the ‘Reorganization Plan’’ merely ‘‘abolished’’ R.F.C.'s functions and ‘‘transferred”’ them to Flocte ( Agdonndix V, p. 25), but did not dissolve R.F.C. 4 i, In the second place, Petitioner's s position is that the. evi- | dence making up the record in this case did hot include the crucial evidence which Petitioner, was entitled to. offer . at the trial of the action, because the trial court refiised _ to require either R. F:C..or Floete to answer Petitioner's — Interrogatories undér Federal Rule 33 preparatory fo trial. Petitioner’s right to have its Interrogatories answered _ either by R.F.C. or by Flocte is a mandatory’ right ginder * Rule 33 of the Federal Rules. Nothing can be clearer than the fact that Petitioner has been deprived. of its right to procedural due process of law by the refusal of the trial judge to require either R.E.C. or Floete to answer Peti- tioner’s Interrogatories, to the end that: Petitioner might . ‘obtain the necessary evidence to sustain its causes of action against R.F.C. and the other defendants.. In other words, evén if the present decision on the. pres- ent record should be correct (whith Petitioner denies, but” does -not raise here), nevertheless Pétitioner’s position is, ® 7% S ‘ 19 4 that it has been deprived. of its cqustitutional right to its’ ~“day in court’? and thereby! has been deprived. of its right: _tg procedural’ due: process of law under the Fifth Anend- ment, because Petitioner ha is been prevented from obtain- | Be: -ing-the evidence essential | ko proving its case at the trial of this action from either: R.F.C. or Flocte, under Rule 33. It is'a fundamental principle of constitutional law that if a party te action cannot obtain discovery in accord: ance with Ph, ee Rules, such. ds Rule 33, it has there: _ by been deprived of procedural die process of law in vio- ‘dation of the Fifth Amendment. It.is respectfully submitted that: this Court should grant the present. t ’etition for the reasons set forth in the Peti- tion and i in the Argument above... =. ° ° ° ‘ | — > Respeetfully subinitied, Horace A. Youn Attorney for, eheiert Housed vie a corporation, ene” Fd | PRuitioner! “Horave A. Youne ‘: ee .135 South La Salle St. ieee re aes Chicago .3, Llinois” js Re thal Attorney for General —— Inc., a corporation. * “> . ee 21 _ APPENDIX I. “GENERAL HOUSES, INC. Plaintif’-Nppellant, : ve I . ANKL IN G. FLOETE,: «As- En ee oe of General’ ke et al., Defendants-A ppellees. No. 311, Docket 25487 | bs) . Uuited States Court of Appeals on Second Circuit Argued May 15, 1999. Decided June 1, 1959. Before Sw AN, Hincks, aid Moone, Cireuit Judges. Per L URIAM, This is an detion for alli ‘eed breach of. two contracts, one between plaintiff and Reconstruction Fiance C ‘orpora- tion, the other between plaintitf and Marloc ‘+ Manufactur- | ing Corporation. Karly in 1947 plaintiff, without any pro- ‘duction facilities, agreed with RFC to produce 2,000 pre- fabri@ated houses. before the end of the year, promising. to use.its best efforts. to sell them. RFC agreed to pay a stipulated sum for each lrouse ‘plaintiff should not be able to sell. Plaintitf then contracted. with Marloch Manufac- ‘turing. Corporation to: produce the 2,000 houses during 1947, and Marloch proceeded to carry out its obligations. In August Marloch refused to continue’ bec eause of plain- tif’s failure to perform, only one house having been sold — hy plaintift.. The damages claimed by plaintiff are more than six million dollars. «Federal jurisdiction over the ~ “defeftlants other than REC rests on dive sity of citizen: . poration, M ARLOCH MANUFACTURING ¢ ‘ORPORA. TION, a corporation, THE ‘GREEX PORT BASIN AND CONSTRUCTION: COMPANY, a corporation, ELIZA. BETH W. TULLOCH and CHARLES M. ROSS, ay Executors and Trustees of the Estatg of Marshall F. Tulloch, Deceased, and Franklin G. Floéte, as Adminis: ‘trator of General Services, Defendants-A ppellees. 7 JUDGMENT. At Brooklyn, New York, in said district on October 3, 1958. ; The issues in the above tilde de action having duly come ~ on to be heard before the, Honerable Mortimer W. Byvr- without a jury at a Trial Termpot this. Court, held in, the - 8 =“ 20 _ United States Court House, 271) W: ashington Street; Borough of Brooklyn, City and State of New York,‘on the 20th, 21st, 22nd, 23rd, 26th, 27th and 28th days of May, 1998, and the plaintiff liaving appeared therein by Bokat & Bokat, Edmund W. Bokat, Esy., of counsel, and de fend-_ -ant Franklin G. F ‘how ‘te, as Administrator of General Serv- ices by Charles R. L. Hemme rsley, I sq. and the ‘defendants Marloe ‘h Manufacturing Corporation, The Greenport Basin and Construction Company, Elizabeth W. Tulloch’ and Charles M. Ross, by Donovan, Leisure, Ne wton & Irvine, Esqs.,. Walter N,. Mansfield: and Helmut Furth, Esqs., of counsel, and the issues having’ been duly tried and the | Court having heard.the allegations and proots of the par- ties, and after due deliberation having been had thereon: and the Court having duly made and filed i its decision on “September 19, 1958; it is Ordered, Adjudged ‘and Deereed, that dtocdant and each of them ‘is hereby awarded judgment on the merits against the plaintiff as to each and all of the so-called counts in the. complaint, and that the defendants herein recover from plaintiff their respective ‘costs in this action. Mortimer Byers | : : U.S.D.J.’’ “* % ae ; ‘ © APPENDIX V.. 7 “REORGANIZATION PLAN NO. 1 OF 1957 _ Eff. Jung 30, 1957, 22 F.R. 4633.71 Stat—— Prepared by the President and transmitted to the Senate * and the House of Represcntiitive ‘s in Congress assembled, Apri] 29, 1957, pursuant to the provisions of the Re- organization Act of 1949, i ii June 20,°1949, as amended. | s \- v ABOLITION OF THE RECONSTRECTION =f INANCE ne CORPORATION | Section 1. Definitions, As used in this reorganization plan: | (a) The term ‘Corporation’ means: the Reconstruction. - Finance Corporation. (b) The term ‘remaining functions’ means (1) all tune tions of the Corporation,:(2) except as otherwise. provided in subsections (b) and (¢) of section 6 of this, recreaniza tion. plan, all functions of the Secretary of the Treasury under section 10 of the Reconstruction Finance Corpora.. tion Act, as amended (15 U.S.CLA. 609) [section 609 of this’ title], and (3) all functions of the Seeretary of the Treasur ‘ander sections . 102 and 106(b) of the Reconstruction Finance Corporation Liquidation Act (67 Stat. 230, 251). as amended [sections 603 and 609 note ef this titie | a (c) . The term ‘transferees’ means: the flousing and Home Finance Aghyinistrator, the Administrator of Gen eral Services, the Administrator of the Small Busines. Ad. ministration, and the Secretary of the Treasury. Sec. 2. Transfer of. functions. | (ai) “Phere are ieréby . transferred to the Housing*and Home Finance Administra: ‘ tor the remaining furctions with respect to or arising oul of (1) the securities and obligations of, loans made’ to, and contracts or other agreements with,. States, municipal ties, political subdivisions thereof, public agencies, hoards. * commissions or other public bodies, and (2) loans, seeur- ties and obligations acquired in connection with program: of financial: assistance for drainage and irrigation project (b) There are here by transferred to the Administrator of General Servieés the remaining funetions with respec ‘to or arising out of (1) ‘the affairs of the Smaller War . .. at 7 . .Dlants. Lorporation. whiel were tfausferred to the Cer- — poratioaipurseant to Executive OFEET Noster Dtece ns = 2, 1940 411 FER. 3) and section 207 of Publie Law —S0th Congress (61 Stat. 20%); me > “ Tenn.) ; Porter v. Montaldo’s, wl F. Supp. 372 (S.D. Ohio) ; Onofrio v. ;American Benuty Macaroni Co, WW F.R.D. 181 (WL). Mo.). The court did not abuse; but on the contrary tor. reetly exercised, its discretion in refusing te require the RP C or Floete to answer the set of three hundred i fiterrogatories e eevering mere than. a hundred, pages. AX\ appears, from the uncontradic ‘ted’ affidavits CR. DP la\: Bd) submitted) ino opposition to petitioner's motion . require answe rs, os REC had no employees who could answer the interrogatoric ‘sy there is no one employed by the General Services Administration who ‘has any pe rsonal knowledge of the matters referred to, in them, and-all the interrogatoric ‘s Were already an- swered by the othe r defendants. Tw have required answers in these citeumstances would. have caused an mawarranted additiorial de lay in litigation which had ‘already been. “cluttering up: the docket for many years”? (General Houses): Ine. vo Marloch Manufac- turing Corp. 239 F: 2d dO, 515 '(C.A: 2)). . Pe 'ti- tioner’s unsupported claim (Pet. 14) that, had the interrogatgries been answered, it could have ‘discoy- ered certain “erneial facts,” affords no basis forover- turning the trial ecourt’s ruling. et CONCLUSION For the foregoing reasons, it is respectfully ine initted that the petition for a writ of certiorari should be denied. nes aa ° ‘ o/h ae eee , es Solicitor Gene ral. GEORGE CocHran Dove, Assistant Attorney General, ALAN S. ROSENTHAL, “MARVIN S. SHAPIRO, Attorneys. OcTOBER 1959. : . ™ a 3 Ps a u APPENDIX . Redrganization Plan No. 1 of 1957, 22 F.R. 4633, 71 Stat. 647, 15 U.S.C. 601 note, provides in part: : - é ~ ty Fe : : ° ’ F . \ : ABOLITION OF THE RECONSTRUCTION FINANCE af CORPORATION 7 Section 1. Definitions.-As used in this re- organization So. 7 (a) The term ‘Corporation’ means the Re- - construction Finance Corporation. (b) The term ‘remaining functions” inns (1) all funetions of the Corporation, (2) ex- cept as otherwise provided in subsections (b) and (c) of section 6 of this reorganization plan, all functions of the Secretary of the Treasury . under section 10 of. the Reconstruction, Finance Corporation Act, as amended ‘(15 U.S.C. 669) [section 609 of this title], and (3) all functions of the. Secretary of the Treasury under:sections 102 and 106(b) of the Reconstruction Finance Corporation Liquidation Act (67 Stat. 230, 231), as amended [sections 603 and 609 note of this title]. - | ~ (ec) The term ‘transferees’ means the Hous- ° ing and Home Finance Administrator, the Ad- ministrator of General Services, the Admin- istrator of the Small Business Administration, and the Secretary of the Treasury. ie Sec. 2. Transfer of functions. * * * ; (b) Thefe are hereby transferred to the Ad- ministator of General Services the remaining functions with respect to or arising. out of (1) the affairs of the Smaller War Plants Corpora- tion which were transferred to the Corporation | ‘pursuant to Executive Order No. .9665 of De- cember 27, 1945 (11 F.R. 3) and section 207 of (8) _ ’ g Public’ Law 132—80th Congress. (61 Stat. 209), (2) the national defense, war and. reconversion activities with respect to which notes of the ‘Corporation were e¢ancelled pursuant. to the provisions of Title IL of Public Law 860—80th Congress (62 Stat. 1187), and. (3) activities of the RFC Price Adjustment. Board and. the ¢ functions transferred to the Corporation by Ex- - ecutive Order No. 9841 of April 23, 1947 (12 F.R. 2645) [set out as note under section 601 of _ Appendix to Title 30), 0. * - a . (ec) The foregoing transfers. include -the transfer to each transferee, for use in executing: his respective functions thereunder, of the powers, authority, rights, and immunities new vested in or available or applicable to the Cor-- poration, for carrying out. the fuhetions trans- ferred to the transferee under this: reorganiza- fion ‘plan. 7 See, 3. Transfer of .assets and liabilities, The loans, obligations, securities, capital stock, - ‘and other assets pertaining to the functions transferred by section 2 of this reorganization plan (including accrued interest thereon, and property aequired in connection therewith) and the liabilities, contracts, bonds, mortgages, notes _and other instruments relating thereto are here- by transferred from the Corporation to the re- spective: transferees: Provided, however, That all assets, liabilities, and commitments relating to the functions transferred by section 2(a) of this reorganization plan aré hereby transferred to the Revolving Fund: (Liquidating Programs) ~ established by the. Independent’ Offices “A (1701g-5 of Title 12]. ee asic ee See. 4.°° Administrative property, personnel, funds and records. In-addition to the transfers made by the provisions of section 3 of this re Appro- —priation Act, 1955 (68 Stat: 295) - [section - organization plan, there shall be transferred to’ the Housing and Home Finance Agency, Gen- n* : 10 eral Services: Administration, Small Business Administration, and Treasury Department so, much as the - Director of the Bureau of the - Budeet shall determine to be appropriate by. reason of transfers made by sections 2 and 3 of this: reotganization plan of the administrative | property, personnel, records, liabilities and ¢om-+ mitments of the Corporation or of the Office of Production and Defense Lending in the Depart-. ment of the Treasury and of the authorizations, allocations, and funds available or to be mace available with respect to the transferred fune-. tions: CGinecluding, but im no way.Jimiting’ the venerality of the foregoing, the authority to issue notes or other obligations to the Secretary of the Treasury, which may be purchased by. .the Secretary, ander section 7 of the Recon- struction Finance Corporation Act, as amended | (15 U.S.C. 606) [section 606 of this. title]. and the duty of making prayments’an such notes or obligations issued by or transferred to the respective transferee hereunder). Tn allocating the Administrative expense funds applicable to the functions transferred by the provisions of this reorganization: plan the said Diréeter shall ‘allocate and transfer to the General: Services Administration as a payment on Jehalf of the Housing and Home Finance Agenty, General Sorvices, Administration, Small Business Ad- ministration and Treasury Department such -sum fér rent of building space for the carrying » out of the transferred functions during the fiseal vear ending June’30, 1958, as the said Director shall detettaine. Such further meastires and disposition as the Director of the Bureau of. the Budget shall determine to be- necessary in order . to effectuate. the transfers provided for.in this section shall be carried out in such manner and by such agencies as.the Direetar shall direct. * % * ; ae * “Tl See,,6. ° Abolition of the Corporation. (a)- The Corporation is hereby abolished. (b) The Secretary: of the Treasury shall .. retire the capital stock of the Corporation and, subject to the provisions .of section. 4 hereof, shall pay into: the Treasury, as miscellaneous | receipts All unused funds of the Corporation, (c) Not later than June 30, 1959, the Secre- tary of the Treasury shall transmit a report to the Congress, which report (1) shall cover the affairs of the Corporation up to the time of the taking effect of the provisions of this -reorgani- — zation plan, ‘And (2) shall correspond to the ~ - final report required by section 10 of the “Re-. -constructio: Finance . Corporation .Act;. as amended (15 U.S.C. 609) [section 609 of this . title}. The funetion of making the final report provided for in the said section 10-{section 609 of this title] is hereby abolished. * eres * ite ~ + Section 105 of the Reconstruction Finance Corpora- » tion Liquidation Act, 67 Stat. 231, as amended, 15 ~ ULS.C. 603 note, provided: Be . — No suit, action, or.other proceeding lawfully commenced by or Against the Reconstruction Finance: Corporation shall-abate by reason of \ the dissolution of the Corporation; but the court . ° may, on-motion or supplemental petition filed at “any time within twelve.months after the date. - of such dissohition and showing a.necessity: for a survival of such suit, action, oreother proceed- ing to obtain a settlement of the questions in-\ volved, allow the same to be maintained by or against the officer or agency of the Government ©, performing the hetons 9 respect to which -any such suit, action, or/other proceeding was commenced. , i US GOVERNMENT PRINTING OFFITE 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0018%3A0. Public record. Not legal advice.