Scott v. Platt

• Decision Date: 25 May 1943
• Citation: 171 Or. 379,137 P.2d 975
• Parties: SCOTT v. PLATT.
• Court: Oregon Supreme Court

137 P.2d 975

171 Or. 379

SCOTT v. PLATT.

Supreme Court of Oregon

May 25, 1943

Appeal from Circuit Court, Multnomah County; Charles W. Redding Judge pro tempore.

On application for a stay of execution and enforcement of a judgment in action by Eueidas K. Scott against Robert Treat Platt, 135 P.2d 769, and the recall of the mandate to enable applicant appellant to apply for and to obtain a write of certiorari from the United States Supreme Court.

Application denied.

Platt, Henderson, Warner & Cram, of Portland, for appellant.

W. J Prendergast, Jr., David Weinstein, and Leo Levenson, all of Portland, for respondent.

Before BELT, Acting C.J., ROSSMAN, KELLY, LUSK, BRAND, and HAY, JJ.

LUSK, Justice.

The appellant has filed an application for a stay of the execution and enforcement of the judgment herein and the recall of the mandate, to enable him to apply for and obtain a write of certiorari from the Supreme Court. Such application is authorized by Title 28, § 350, U.S.C.A., which provides in part: "In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to apply for and to obtain a writ of certiorari from the Supreme Court."

Section 344(b), ibid., authorizes the Supreme Court to have certified to it, by certiorari, for review and determination a cause wherein a final judgment or decree has been rendered or passed by the highest court of a state, and includes cases "where any title, right, privilege, or immunity is specially set up or claimed by either party under the Constitution".

In the application now under consideration the petitioner avers that he seeks a review of our decision "and especially in relation to the 5th and 14th amendments to the Constitution to the property rights of the appellant involved in this action."

The application is addressed wholly to our discretion. Magnum Import Company v. Houbigant, Inc., 262 U.S. 159, 43 S.Ct. 531, 532, by 67 L.Ed. 922. Mr. Chief Justice Taft referring in that case to a similar application to the United States Circuit Court of Appeals, said: "That court is in a position to judge first whether the case is one likely under our practice to be taken up by us on certiorari, and second, whether the balance of convenience requires a suspension of its decree and a withholding of its mandate."

The court added: "These remarks, of course, apply also to applications for certiorari to review judgments and decrees of the highest courts of states."

The whole subject is reviewed at length in Williams v Keyes, 135 Fla. 769, 810, 186 So. 250, 266, 267, where it is said: "The necessary prerequisite for such a review is exemplification of a federal question that was affirmatively presented, that its decision was necessary to the determination of the cause, that it was actually decided or that the judgment as rendered could not have been so without deciding it. Adams v. Russell, 229 U.S. 353, 33 S.Ct. 846, 57 L.Ed. 1224; Palmer v. State of Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108; Chicago, R.I. & P. Co. v. Maucher, 248 U.S. 359, 39 S.Ct. 108, 63 L.Ed. 294."

None of these things are found in this case. It is an action to recover the principal sum and interest of bonds issued by the appellant and another. The sole defense was that certain provisions of the bonds and of a collateral indenture, executed to secure their payment, were a bar to the maintenance of the action. We construed the provisions relied on by the appellant adversely to him and held that the action would lie, in an opinion rendered April 6, 1943. Scott v. Platt, Or., 135 P.2d 769. Thereafter the appellant filed a petition for rehearing, which was denied without opinion on May 11, 1943. From the filing of the complaint to the denial of the petition for rehearing, there has not been anywhere in the record a...