Brief for the Respondent in Oppositionc — Carpenter v. Superior Court of California

Rie | #ILBD )

MAR 17 1941

IN THE

| OHARLES ELwane caOPLy

Supreme Court of the Unite States

October Term 1940

No. 756.

MarGARET B. CARPENTER and Leroy E. CARPENTER,

Petitioners,

US.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN

AND FOR THE County OF Los ANGELEs,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

:

oe

:

W. B. McKesson,

Deputy County Counsel, :

1100 Hall of Records, Los Angeles,

Attorney for Respondent.

Of Counsel:

J. H. O’Connor,

County Counsel;

Douciass DeCostEr,

Deputy County Counsel.

Parker & Baird Company, Law Printers, Los Angeles.

SUBJECT INDEX.

PAGE

I.

I< NNN ace ssltendnnoptaehnionwnansidinSbeonesionationee = 1

II.

Jurisdiction ................ Milled Ceciahe alone série hcsnientinesorens se aoa endopenepnies 3

(1) No federal question properly raised in the state courts...... 3

cy eee wee OF veveew ced mot fie... nie nee 3

IIT.

Summary statement of reasons requiring denial of petition... 7

(1) The attempted proceeding in the s.ate court in which

petitioners sought the writ of reviev was without juris-

diction, and constituted an attempt to invoke a remedy

not available to petitioners under California practice..........

(2) No federal question was ever properly raised, claimed,

presented or argued, either in the trial court or in the

eB, ene

(3) Neither the Superior Court nor the Supreme Court of

California was ever called upon to consider or pass upon

any question of federal constitutional right, since peti-

tioners’ only attempt to raise a federal question was by

way of a petition which did not lie under California prac-

(4) No federal question is presented because the application

of the doctrine of res judicata is purely a matter of local

nw .... SL ee ee ae

(5) The question presented is unsubstantial and frivolous...

(6) The case presented is not one involving a matter of such

public or general importance as to warrant granting the

I i se daca eabcaomndoek eclgeerceniniatbintei eis

N

9

ii.

IV.

Argument

(1) The claim of error asserted by petitioners is unsubstantial

and unmeritorious in that: (a) the application of the

doctrine of res judicata is exclusively a matter of local

law, and (b) petitioners’ own statement of the case dis-

closes that no denial of due process was involved in any

of the proceedings or rulings of the California courts........ 10

V.

Conclusion 13

iii.

TABLE OF AUTHORITIES CITED.

CASES. PAGE

Adams v. Louisiana Board of Liquidation, 144 U. S. 651, 36

L. Ed. 578.. ue she bceesaioais

Anglo Californian Bank v. Superior Court, 153 Cal. 753, 96 Pac.

803

Beals v. Cone, 188 U. S. 184, 47 L. Ed. 435......

Carpenter v. Hamilton, 18 Cal. App. (2d) 69, 62 Pac. (2d)

SE sculecncnenicatneininness ; 11,

Coan v. Superior Court, 14 Cal. (2d) 591, 95 Pac. (2d) 931....4,

Chandler v. Manifold, 290 U. S. 665, 78 L. Ed. 575.000.

Chicago etc. Ry. Co. v. McGuire, 196 U. S. 128, 49 L. Ed. 413

Christie v. Superior Court, 218 Cal. 423, 23 Pac. (2d) 757......4,

Consolidated Turn Pike Co. v. Norfolk & Ocean View Ry. Co.,

2 U.S. BS, FY LL.’ Ee. Sze...

Equitable Life Assurance Society v. Brown, 187 U. S. 308, 47

Re: ME RE ciscantoinncieiieanin

Haley v. Breeze, 144 U. S. 130, 36 L. Ed. 373......cccsssssssssssssseeeee

Betadon v, Gonna, 295 U.S. 4b inn nensccsesienicieeece

Pieeminns. ¥. Tater TA. BFE sicscscceescrssnisintnnsccinnonocnissiinent 5.

Hildebrand v. Superior Court, 173 Cal. 86, 159 Pac. 147............

Ivory v. Superior Court, 12 Cal. (2d) 455, 85 Pac. (2d) 894....

Cay VEN ales . 4, 5,

King v. West Virginia, 216 U. S. 92, 54 L. Ed. 396....................+.

Layne & Bowler Corporation v. Western Well Works, Inc., 261

se 3 eg A OD . > eee

Missouri Pacific Ry. Co. v. Hanna, 266 U. S. 184, 69 L. Ed. 235

Mutual Life Ins. Co. of New York v. McGrew, 188 U. S. 291,

47 L. Ed. 480.

12

iv.

PAGE

New York Central etc. R. R. Co. v. City of New York, 186

U. S. 269, 46 L. Ed. 1158 7

Northern Pacific R. R. Co. v. Ellis, 144 U. S. 458, 36 L. Ed.

504 8

Postal Telegraph Cable Co. v. Newport, 247 U. S. 464, 62 L.

Ed. 1215 9

San Francisco v. Itsell, 133 U. S. 65, 33 L. Ed. 5700.0... 8, 10

Seaboard Air Line Ry. v. Padgett, 236 U. S. 668, 59 L. Ed.

777 9

State Board of Equalization v. Superior Court, 9 Cal. (2d) 252,

70 Pac. (2d) 482 4,7

Stoddard v. Superior Court, 108 Cal. 303, 41 Pac. 278.............. 5, 7

Todhunter v. Smith, 219 Cal. 690, 28 Pac. (2d) 916......000000.2... 11

Western Electrical Supply Co. v. Abbeville Electric Light &

Power Co., 197 U. S. 299, 49 L. Ed. 765 9

STATUTES.

Code of Civil Procedure, Sec. 1068.................-.-.-+- Seas: 3 7

TEXTBOOKS.

2 Freeman on Judgments, 5th Ed., p. 1443.20.00... ------ec:ecesseesseeneees 12

IN THE

Supreme Court of the United States

October Term 1940

No. 756.

MarGARET B. CARPENTER and Leroy E. CARPENTER,

Petitioners,

US.

THE SUPERIOR CourT OF THE STATE OF CALIFORNIA, IN

AND FOR THE County oF Los ANGELEs,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

I,

Preliminary Statement.

Respondent views the institution of the present proceed-

ing as a wholly unwarrantable abuse of the processes of

this Court. In Carpenter v. Hamilton, October Term,

1940, No. 93, petitioners urged upon this Court precisely

the same arguments which are again offered in support

of the present petition. The petition in No. 93 was denied

by this Court on October 21, 1940, without opinion,

Prior to filing their petition in No. 93 petitioners had

availed themselves of the remedy of appeal to the Supreme

Court of California, and that appeal had resulted in an

affirmance of the judgment of which petitioners complain.

After this Court had denied their petition in No. 93 peti-

tioners filed in the Supreme Court of California a petition

for writ of review. In the latter petition the Supreme

Court of California was asked again to review the very

same judgment which it previously had reviewed and

affirmed on petitioners’ appeal. The Court refused to

entertain the proceeding, denying the petition without

cpinion.

Under California practice, as we shall show, it is well

settled that the writ of review does not lie in any case

where the judgment or order complained of is reviewable

on appeal. On its face, therefore, the petition for writ

of review was a sham and a pretense. Quite obviously

it was filed only in an attempt to lend color to a false

claim that a federal question had been appropriately raised

in the California courts and in the hope of creating a

deceptive illusion of foundation for the present petition

in this Court.

spake

II.

Jurisdiction.

(1) No FEDERAL QUESTION PROPERLY RAISED IN THE

STATE Courts,

Petitioners cannot, and do not, assert that any federal

question was ever raised or suggested by them in the

California courts otherwise than by the filing of said

petition for writ of review. During the trial of the case

in the Superior Court “due process” was not so much as

mentioned. There was not the slightest hint or intimation

that the existence of a federal question was claimed.

Likewise, in the briefs filed in the Supreme Court of

California on the appeal there was not the remotest

suggestion of a federal question. After the affirmance

of the judgment by the Supreme Court of California

petitioners filed a petition for a rehearing, but even then

there was no claim or suggestion of a federal question.

Never, until the petition for a writ of review was filed,

did petitioners assert the existence of a federal question

ina California court.

(2) Tue Writ oF Review Dip Nor Liz.

It is too clear to admit of reasonable argument that

the judgment of which petitioners complain could not be

reviewed by the Supreme Court of California on petition

for writ of review. It was reviewable upon appeal, and

inno other way. It had been thus reviewed and affirmed

upon petitioners’ own appeal. Section 1068 of the Code

of Civil Procedure of the State of California is the con-

saillbcas

trolling statutory provision which determines the circum-

stances under which the writ of review (certiorari) may

be granted. Said section provides as follows:

“When and by what courts granted. A writ of

review may be granted by any court, except a

municipal, police or justice’s court, when an inferior

tribunal, board, or officer, exercising judicial fune-

tions, has exceeded the jurisdiction of such tribunal,

board, or officer, and there is no appeal, nor, in the

judgment of the court, any plain, speedy, and ade-

quate remedy.” (Italics supplied.)

Innumerable times the Supreme Court of California

has held that the above-quoted statutory provision means

precisely what it says, namely, that the writ of review

may not be granted to review an appealable order or

judgment. Moreover, this rule is equally applicable in

cases where it is asserted that the order or judgment

complained of was without the jurisdiction of the court

making it. The following are only a few of the vast

number of decisions so holding:

Coan v. Superior Court, 14 Cal. (2d) 591, 95 Pac.

(2d) 931;

Ivory v. Superior Court, 12 Cal. (2d) 455, 85 Pac.

(2d) 894;

State Board of Equalization v. Superior Court, 9

Cal. (2d) 252, 70 Pac. (2d) 482;

Christie v. Superior Court, 218 Cal. 423, 23 Pac.

(2d) 757;

Hildebrand v. Superior Court, 173 Cal. 86, 159

Pac. 147;

Anglo Californian Bank v. Superior Court, 153 Cal.

753, 96 Pac. 803.

Ae

Lap ys

iilliies

In Ivory v. Superior Court, supra, the California

Supreme Court stated the law as follows:

“Tt is the general rule that ‘where the law allows

an appeal from an order or judgment, even when

the tribunal making such order or rendering such

judgment exceeded its authority in so doing, a writ

of review may not be granted’.” (Citing Code of

Civil Procedure, Section 1068, and many cases. )

In Stoddard v. Superior Court, 108 Cal. 303, 41 Pac.

278, the California court said:

“It may be readily admitted that the court had no

jurisdiction to make the order; but, as the order is

appealable, certiorari will not lie, because it lies only

where ‘there is no appeal.’ (Code Civ. Proc., Sec.

1068.) * * * In Stuttmeister v. Superior Court,

71 Cal. 322, the authorities on the point are colated;

and it was there declared that ‘the writ (certiorari)

will not lie when there is an appeal from the action

complained of,’ and ‘the writ is not given in lieu of

an appeal, but only to review errors in excess of

jurisdiction for which an appeal does not lic.’ (See

cases cited in opinion of Searls, C., also Jn re Mce-

Connell, 74 Cal. 217, 219; Hayne on New Trial and

Appeal, Sec. 307.) We have been referred to no

case in which it has been held that, under our code,

a writ of certiorari will lie to reverse an appealable

order.”

Petitioners assert that the history of the present litiga-

tion “is not unlike” that involved in Herndon v. Georgia,

295 U. S. 441, and Herndon v. Lowry, 301 U. S. 242.

The falsity of the assertion is apparent. In the Herndon

case the Georgia courts considered and specifically dis-

posed of the federal questions which were raised in the

REET Ay OORT NG > as MII Ia! Py Wt 5 ar

habeas corpus proceeding. It is to be assumed, and this

Court did assume in Herndon v. Lowry, that the habeas

corpus proceeding, under the state law, was a proper pro-

ceeding in which the issues of federal constitutional right

were appropriately raised. This Court, speaking through

Mr. Justice Roberts, made the following observation in

this connection:

- ; . ee

In the present proceeding the Superior Court and

Supreme Court of Georgia have considered and dis-

posed of the contentions based upon the federal

Constitution. The scope of a habeas corpus proceed-

ing in the circumstances disclosed is a state and not

a federal question and since the state courts treated

the proceeding as properly raising issues of federal

constitutional right, we have jurisdiction and all such

issues are open here.”

In the Herndon case the Superior Court and _ the

Supreme Court of Georgia not only entertained the habeas

corpus proceeding, but they considered and disposed of

the contentions based upon the federal Constitution. In

the present case, on the contrary, it is abundantly clear

that the writ of review did not lie. The California

Supreme Court refused to entertain the proceeding, and

declined to consider or pass upon the federal question, or

any other question. It is clear that the California Supreme

Court had no jurisdiction to entertain the proceeding.

When petitioners had exercised their right of appeal

and when their petition for a rehearing had been denied

by the California Supreme Court they had exhausted the

last remedy available under the law of California,

ae

ITI,

Summary Statement of Reasons Requiring Denial

of Petition.

(1) THe ATTEMPTED PROCEEDING IN THE STATE Court

IN WuicH PETITIONERS SOUGHT THE WRIT oF

Review Was Wirnuout JURISDICTION, AND CoNnstTI-

TUTED AN ATTEMPT TO INVOKE A REMEDY Not

AVAILABLE TO PETITIONERS UNDER CALIFORNIA

PRACTICE.

Code of Civil Procedure, State of California, Sec.

1068 ;

Coan v. Superior Court, 14 Cai. (2d) 591, 95 Pac.

(2d) 931;

Ivory v. Superior Court, 12 Cal. (2d) 455, 85 Pac.

(2d) 894;

State Board of Equalization v. Superior Court, 9

Cal. (2d) 252, 70 Pac. (2d) 482;

Christie v. Superior Court, 218 Cal. 423, 23 Pac.

(2d) 757;

Stoddard v. Supertor Court, 108 Cal. 303, 41 Pac.

278.

(2) No FrEpeRAL Question Was’ Ever’ Prorerry

RaAisep, CLAIMED, PRESENTED OR ARGUED, EITHER

IN THE TRIAL COURT OR IN THE SUPREME CouRT

OF CALIFORNIA.

New York Central ete. R. R. Co. v. City of New

York, 186 U. S. 269, 46 L. Ed. 1158;

Mutual Life Ins. Co. of New York v7. MeGrew,

188 U. S. 291, 47 L. Ed. 480;

so oO

onli

Chicago etc. Ry. Co. v. McGuire, 196 U. S. 128,

49 L. Ed. 413;

Missouri Pacific Ry. Co. v. Hanna, 266 U. S. 184,

69 L. Ed. 235;

Chandler v. Manifold, 290 U. S. 665, 78 L. Ed.

575.

(3) NEITHER THE SuPERIOR CourT Nor THE SUPREME

Court OF CALIFORNIA Was EvER CALLED Upon to

CONSIDER OR PAss Upon ANY QUESTION OF FEDERAL

CONSTITUTIONAL RIGHT, SINCE PETITIONERS’ ONLY

ATTEMPT TO RAISE A FEDERAL QUESTION WaAs By

Way oF A Petition Wuicu Dip Nor Lit UNper

CALIFORNIA PRACTICE.

See cases cited under (1) and (2), supra.

(4) No FepEerAL Question Is PRESENTED BECAUSE THE

APPLICATION OF THE DOocTRINE OF Res JUDICATA

Is PurELY A MATTER OF LocaL Law.

Northern Pacific R. R. Co. v. Ellis, 144 U.S. 458,

464, 36 L. Ed. 504;

Haley v. Breese, 144 VU. S. 130, 131, 132, 36 L.

Ed. 373;

San Francisco v. Itsell, 133 U. S. 65, 33 L. Ed.

570;

Adams v. Louisiana Board of Liquidation, 144 U.

S. 651, 36 L. Ed. 578;

Beals v, Cone, 188 U. S. 184, 47 L. Ed. 435;

rs

Sahay

Py E si

Western Electrical Supply Co. v. Abbeville Electric

Light & Power Co., 197 U. S. 299, 49 L. Ed.

765;

King v. West Virginia, 216 U. S. 92, 54 L. Ea.

396;

Postal Telegraph Cable Co. v. Newport, 247 U. S.

464, 62 L. Ed. 1215.

(5) THe QuEsTION PreseNteD Is UNSUBSTANTIAL AND

FRIVOLOUS.

Consolidated Turn Pike Co. v. Norfolk & Ocean

View Ry. Co., 228 U.S. 596, 57 L. Ed. 982:

Seaboard Air Line Ry. v. Padgett, 236 U. S. 668,

59 L. Ed. 777;

Equitable Life Assurance Society v. Brown, 187

U.S. 308, 47 L. Ed. 190.

(6) THe Cask Presentep Is Nor OnE InvoLvine a

MATTER OF SuCH PUBLIC oR GENERAL IMPORTANCE

AS TO WARRANT GRANTING THE DISCRETIONARY

Writ.

Layne & Bowler Corporation v. Western Well

Works, Inc., 261 U. S. 387, 67 L. Ed. 712.

_

IV.

Argument.

(1) THe CLaim or Error Assertep BY PETITIONERS Is

UNSUBSTANTIAL AND UNMERITORIOUS IN THatT:

(A) THE APPLICATION OF THE DoctTRINE oF Res

Jupicata Is ExcLusiveLty A Matter or Locat Law,

8D (B) PETITIONERS’ OwN STATEMENT OF THE

Case DiscLtoses THat No DENIAL oF DUE Process

Was INVOLVED IN ANY OF THE PROCEEDINGS oR

RULINGS OF THE CALIFORNIA Courts.

The decisions of this Court, cited supra, demonstrate

that the application of the doctrine of res judicata is a

matter of purely local law. Clearly, the application of the

local law was independently sufficient to sustain the judg-

ment. In San Francisco v. Itsell, 133 U. S. 65, this

Court, speaking through Mr. Justice Gray, used the

following language with reference to a judgment of the

Supreme Court of California:

“In the present case, the record of the pleadings,

findings of fact and judgment shows that it was

unnecessary for that court to decide, and its opinion

filed in the case and copied in the record shows that

it did not decide, any question against the plaintiff

in error, except the issue whether the former

judgment rendered against it and in favor of the

grantor of the defendants in error was a bar to

this action. That was a question of general law

only, in nowise depending upon the Constitution,

treaties or statutes of the United States. Chouteau

v. Gibson, 111 U. S. 200 (28:400).

Writ of error dismissed for want of jurisdiction.”

J

Likewise, in the instant case, the record shows that the

sole question involved was whether or not petitioners were

estopped by the judgment in the former action from

— on

asserting that Hamilton was guilty of fraudulent mis-

representations. It must be quite apparent that the Cali-

fornia courts decided this question correctly, because it

is established by the decisions, to which the California

Supreme Court referred, that the essential elements of

actionable fraud are precisely the same both in law and

in equity. Furthermore, said California decisions estab-

lish the proposition that a final judgment upon the merits

is forever conclusive upon the parties with respect to

every material issue of fact tendered in the litigation in

which the judgment was rendered. (Todhunter v. Smith,

219 Cal. 690, 28 Pac. (2d) 916.) Therefore, the Cali-

fornia Supreme Court correctly said that there was no

place for the application of the maxim that “he who

comes into equity must come with clean hands.”

Petitioners seek to make it appear that they were

“robbed” by the California courts of the “right to a

hearing’ upon their allegations that they were defrauded.

Nothing could be more untrue. Petitioners, themselves,

instituted the original action, in which they sought to

recover damages by reason of the alleged fraud. That

action was regularly tried. It terminated in a judgment

adverse to petitioners. (Carpenter v. Hamilton, 1&8 Cal.

App. (2d) 69, 62 Pac. (2d) 1397.) The necessary effect

of the judgment in the fraud case was a conclusive deter-

mination that no fraud had been practiced upon the

petitioners.

Actually, petitioners’ complaint is that they were not

permitted to have two separate trials upon their claim

that they were defrauded. Their position is that they

should have been permitted to retry the fraud issues in

the foreclosure case, exactly as though the fraud case had

never been tried or decided. Such procedure, we submit,

=

would not be countenanced anywhere. Unless judgments

are, at some point, accorded the attribute of finality litiga-

tion must necessarily remain interminable.

Clearly, the ruling of the Superior Court in the fore-

closure case, and the decision of the Supreme Court sus-

taining that ruling, were correct applications of the

doctrine of res judicata. Not only was the ruling in

accord with well-established California law, but it har-

monizes with the salutary doctrine of res judicata as this

principle of law is almost universally understood and

applied. The text writer in 2 Freeman on Judgments,

Sth edition, page 1443, states the law as follows:

“By the rules of the civil as well as of the common

law, ‘res judicata is not changed by a change in the

form of action.’ It is not material that the form of

action be the same, if the merits were tried in the

first. A party cannot, by varying the form of action

or adopting a different method of presenting his case,

escape the operation of the principle that one and

the same cause of action shall not be twice litigated.

Where either of two remedies is equally available to

vindicate the same right, the judgment in an action

employing one of them will bar a resort to the other.”

It is elementary that a final judgment on the merits

concludes every issue of law and fact tendered in the

action as between the parties thereto. One of the issues

of fact tendered in Carpenter v. Hamilton was whether

or not Hamilton made the misrepresentations as alleged.

The necessary effect of the final judgment in Hamilton’s

favor was a determination that he did not make them.

When that judgment became final the Carpenters were

forever estopped from asserting that Hamilton was guilty

of misrepresentation.

will Ries

V.

Conclusion.

Respondent feels that the lack of merit in the present

petition is so obvious as to render superfluous any extended

argument. We do not believe that counsel for petitioners

can, with candor or in good faith, represent to this Honor-

able Court that the writ of review sought in the Supreme

Court of California was a remedy available to petitioners

under California law. Yet denial of said writ is the

asserted basis for the petition herein.

The record here, obviously insufficient though it is,

does reveal that the novel idea that a federal question

might be claimed was not conceived in the minds of peti-

tioners’ counsel until after every remedy known to Cali-

fornia law had been completely exhausted by them.

Quite aside from the clear absence of elementary juris-

dictional requirements, the contentions sought to be pre-

sented by petitioners, we submit, are patently unsubstantial

and frivolous.

Respectfully submitted,

W. B. McKesson,

Deputy County Counsel.

Of Counsel:

J. H. O’Connor,

County Counsel;

Douctass DECostTER,

Deputy County Counsel.

Due service of the within Brief is hereby

acknowledged this day of March,

A. D. 1941,

Attorneys for Petitioners.