United States v. Wintner
Decision Date | 04 September 1964 |
Docket Number | Civ. A. No. 35830. |
Parties | UNITED STATES of America v. Lillian WINTNER and Alexander Brien, Adm'r of Estate of Alex S. Wintner, deceased. |
Court | U.S. District Court — Northern District of Ohio |
Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, for plaintiff.
Richard Katcher and Sheldon Gitelman, Cleveland, Ohio, for Lillian Wintner.
Sanders & Sanders, Cleveland, Ohio, Attys. for Alexander Brien.
The Court has for consideration the following motion of the plaintiff:
The defendant attacks the foregoing motion with the contention that this Court is bound by the mandate of the Supreme Court and therefore may not rehear any of the issues involved. This contention of the defendant requires the Court to determine the scope and effect of the Supreme Court's per curiam opinion in Wintner v. United States, 375 U.S. 393, 84 S.Ct. 451, 11 L.Ed.2d 411, such per curiam opinion being,
The defendant's contention rests upon the following authorities: Sibbald v. United States, 12 Pet. 488, 492, 9 L.Ed. 1167, 1169 (1838); In re C. & A. Potts & Co., 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; Wenborne-Karpen Dryer Co. v. Cutler Dry Kiln Co., 2 Cir., 21 F.2d 692; Eastern Cherokees v. United States, 225 U.S. 572, 573, 32 S.Ct. 707, 56 L.Ed. 1212; In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Federal Home Loan Bank of San Francisco v. Hall, 9 Cir., 225 F.2d 349; Gibbons v. Brandt, 7 Cir., 181 F.2d 650; Mays v. Burgess, 80 U.S.App.D.C. 236, 152 F.2d 123; 5B C.J.S. Appeal & Error § 1965, pp. 576-577; Ohio Power Co. v. United States, 157 F.Supp. 158, 140 Ct. Cl. 531; National Association for the Advancement of Colored People v. Alabama, 360 U.S. 240, 79 S.Ct. 1001, 3 L. Ed.2d 1205; and defendant further says the following rules of the Supreme Court support her contention: Rules 24(1), 40(1) (d) (1), and 40(3), and also Rules 23(1) (c) and 40(1) (b) (1).
The defendant in her brief quotes certain excerpts from her petition for certiorari and the responses made thereto by the plaintiff and, based upon such excerpts and the authorities above cited, insists that this Court is limited by the reversal in Wintner, supra, to vacating the Court's former judgment of January 2, 1962 and entering judgment in favor of the plaintiff in the amount of $503.85.
This Court does not have before it any of the papers filed in the appeal from this Court's original decision to the Circuit Court of Appeals or to the United States Supreme Court; however, the Court can determine whether it may consider plaintiff's claim to $18,274.65 without knowledge of the subsidiary issues which may have been revealed by the parties on appeal. The Supreme Court in Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 41 S.Ct. 276, 65 L.Ed. 549 (1921) clearly stated the governing principles regarding the effect of a prior reversal by the Supreme Court:
See also United States v. Haley, 371 U.S. 18, 83 S.Ct. 11, 9 L.Ed.2d 1 (1962); Southern Ry. Co. v. Commonwealth of Kentucky, 284 U.S. 338, 52 S.Ct. 160, 76 L.Ed. 327 (1932); and Charles Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552 (1925). In Meyer v. United States, 375 U.S. 233, 84 S.Ct. 318, 11 L.Ed.2d 293 (1963), the case cited as controlling in the reversal of Wintner, the Supreme Court totally ignored the plaintiff's rights absent the marshaling doctrine. Of compelling importance is the Court's declaration in Meyer that:
"The narrow question remaining is whether in such a situation the doctrine of marshaling of assets is compelled." (P. 236, 84 S.Ct. p. 321.)
Applicability of the marshaling doctrine was the only issue decided in Meyer, and therefore the plaintiff's claim that it is entitled to $18,274.65 without applying the marshaling doctrine has yet to be considered in this case. The pleadings, record,...
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