Lopinsky v. Hertz Drive-Ur-Self Systems, Inc.

safeguards,2 such interim the substitution 1126in Root discussion of U.S.C.A. § upper congression- case) court findings, lower Beer to conclude that the the. objections any possibility policy to of distinctive al than there disclosed is other design cutlery, skepti represented indeed the strong aspects in the substantive expressed any cism to secondary meaning as herewith. decision record, notwithstanding force me to conclude that no of confusion” “likelihood

—the requirement governing ever be —will accepted possible strong as a showing unless persons actual confusion from the con

fused is made. That that even means

rawest copying will he actionable. And law,

that is new cases cited show. LOPINSKY v. DRIVE-UR-SELF HERTZ SYSTEMS, Inc. et al. I my I could breth be as certain wish 22156. No. Docket ren that a green light “free-riders” is competitive society of the essence Appeals United Court of duty that we high have a out this carry Circuit. Second public But, opinions show, policy. my Argued Nov. I am bothered troublesome doubts. 10, 1951. Decided Dec. my Much of modern offends advertising sensibilities; the other hand I cannot develop enthusiasm the manufacturer rely advertising

who would on the of others product, market a poorer even lesser

price. dilemma, such Placed in I would

like yield my public views producers

those to both closer consum pos thought

ers than I. I have to see such

sible definitive instruction in the Lanham emphasis

Trade-Mark Act of in its against copies remedies use of

trade-marked “likely articles cause con mistake,” fusion or 15 U.S.C.A. or § * * * “any goods use as or services designation origin, false or false description representation,” 15 or U.S.C.A. broadly 1125(a), even more “effective

protection against competition.” unfair 1126(h, i), See, g., 1127. U.S.C.A. §§ e. in Dad’s Root Beer

my discussions Co. v. Inc., Cir., Beverages,

Doc’s Johnson, Cir., & and C. Son v. S. Johnson 176, certiorari denied

;860, 527. One 70 S.Ct does remedy an exact

not need discover (though compare plaintiff that Act stay appeal, granting pending 3. While the last sections first In cited' have' not yet judge single interpretation,, and then this at- received definite a tempted the’ safeguards. admittedly plaintifii’s’ first two broaden- to set such Wheth- trade;. attempts rights protection! successful, were unfair or not the er significant that these are now com- it is pletely repudiated.

á23 Hertz Drive- York trict of New called System, (hereinafter Inc. Ur-Self Charles O’Brien, “Hertz”), Edward J. the estate A. administrator of Harrison com- Briefly, the Walter Benedict Baer. plaintiff’s intestate alleges plaint that 1950, in an automo- May killed was on the State bile collision on Route York;, automobile New oper- was of the deceased caused death Baer, was owned by Benedict ated Walter O’Brien, and by the defendant Edward J. Baer Benedict Walter rented O’Brien; O’Brien that Edward Edward J. J. Benedict to Walter rented automobile on behalf Baer as a licensee of and licensee, Hertz, and Edward J. O’Brien, East conducted his business in upon the Norwalk, Service defend- Conn. through United ant Hertz was made copy by leaving a States Marshal R. complaint George summons and Carey Gannon, comptroller of the assistant (hereinafter called System, Inc. Driveurself corporation. “Carey”), a New On York Hertz, Ryan, Judge ground on motion jurisdiction lacked over court Hertz, the summons vacated the service of complaint and entered questions arising on The of Hertz. favor jurisdic- are whether Hertz York, tionally present in of New the State so, properly and if whether service we with the conclusion agree made. Since judge that reached the district jurisdiction Hertz, over is un- lacked question. to decide latter presence jurisdictional The of a for corporation depends eign on whether corporation doing business within People’s Tobacco v. American- state. Zeitlan, City, Harry plain- New York Co., 246 Tobacco Fine, tiff-appellant; Herbert York New L. appears- 587. From the affidavits n City,-onthe brief. Hertz maintains offices of no its own Trapp, City, New York for de- W. John business, directly and does not conduct Reilly, (cid:127)fendant-appellee; Peter M. New J. However, appellant New York. 'City, ®n the brief. York Carey fact acting contends that was in HAND, N. AUGUSTUS Before of Hertz in the agent business transact CLARK, Judges. Circuit CHASE, and Carey ed in New York. This contention following on the facts: Hertz de based PER'CURIAM. plan system renting vised a automo present who initiated action biles to customers drive appellant automo themselves, system being fer the Southern Dis- Uotint biles the District known dm under CLARK, Drive-Ur- (concurring). the trade-name of Hertz Judge Circuit System. Self In order to effectuate I agree with the and decision both system scale, Hertz licenses a national explicitly what is stated and what corpora- hundreds of local individuals and necessarily implied, viz., that we have here tions throughout the United appealable an In judgment. view system Canada to its the trade- use developments of in this circuit hereinafter Carey Driveurself, Inc., name. York a New noted, I believe it is or at least licensee, corporation, in- is such a Hertz indulge explana- desirable to in some fuller dependent locally owned. The license part tion of this of our decision. For the agreement Carey pro- between Hertz and parties named as legally defendants and re- vides, alia, payment speci- inter for the of sponsible the one for accident which killed fied fees the licensee for car main- each plaintiff’s intestate were the administrator tained Carey its Driveurself business. operator of the deceased colliding -of the required The licensee is the Hertz use car, owner, asserted licensor un- standard agreement form of rental der Systems (the the Hertz Drive-Ur-Self permit inspect premises, licensor to present defendant-appellee) and no order automobiles and records and accounts. judgment entered first two. assisting Hertz’s are obligations limited to Since single core of the case was this ac- procuring licensee in the various mate- cident, “joint- all here were elements of rials used the Driveurself business and to called, ness” Republic as stressed in help may in locating automobiles which Express Co., Cir., China American ISO been stolen from the have licensee. separate render this judgment immediately appealable under agreement This license cannot principles of law in force before jur subterfuge described as a to avoid local amendment isdiction, Fed. Rules Civ.Proc. Calculating Bach Friden see 54(b), 28 judge U.S.C.A. But here the Cir., Co., Machine 167 F.2d and does entry directing judgment for appointment by Hertz final not constitute an proceeded Carey purpose -defendant also under agent renting for the form of the rule to determine there Echeverry automobiles in New York. Cir., just delay. was no Supply reason for This action Kellogg & Switchboard by him brought opera- the case within the appellant much 175 F.2d 900. makes appeals tion Telephone granting statute from the fact that Manhattan final Carey’s courts, decisions of the district Directory and tele 28 U.S. lists address C. as we phone Hertz held Pabellón v. number under the name of Grace Cir., Line, July 26, System and that an adver Drive-Ur-Self Directory Supply certiorari denied Coston tisement in the Classified features v. Pa- bellón, Carey. 201, citing the name “Hertz” rather than However, appears appellate numerous it that the advertisement decisions of courts on by Carey, featuring paid is new rule. simply means the Hertz name is of direct Hence, circumstance, but for one no fur place potential to a ing customers necessary. comment would be That cir ther since the Hertz name rents automobiles days eight cumstance the decision later is be more familiar than

would in all likelihood panel another of this court that the rule opinion Carey Carey. In our that of applied necessarily as thus must be consid agent Hertz to not an do business Mills, a mere licensee. Flegenheimer York but ered invalid: v. General New Aug. 1951.1 Al reasons, foregoing For the provided though the court no documentation affirmed. clear, interpreta interpreted this, Although formally is made an the court preserve applying extremis to tion in rem to accelerate as not the rule invalidity. finality Both' the clear nants .language tory in the one instance to which conceding power (while and its his applicable amendment Advisory finality) postponement [see Committee to authorize persede provide appellate statutes, to past holding either for its adopted. practice, once to amend rules as the precedents such or in rule-making consequence; These were all matters of Bear holding of Reeves directly relevant importance increased because assumed 1085, 86 L.Ed. dall, Supreme Court, pursuant necessarily the to well un- decision popular mandate,3- already an- derstood fully third put jeopardy to unite the fed- Congress nounced its determination an act of rules. When civil equity procedures. eral law and How could Attorney must be General under attack if, example, that mandate be carried out and defend can come in notified so he existing regulating procedure numerous statutes No similar it. 28 U.S.C. § procedure details of continued they have protects though rules even the law, in the Supreme apply equity, but not in because formally passed upon by the been power superseding of the rules stated and, Con Court, having 'been laid before Ques in that section of the act which dealt unobjectionable there. gress, found (That par- with rules in actions at law? counsel not the kind tions such this are problem brief; definitely settled, in liti ticular likely while and are examine view, with the Committee’s in certainty, their in what accordance gants interest desire the Consequently decision in Sibbach v. Wilson & not certainty is immediate. likely up in in question is to come 1941,in although court, help which divided with no whatsoever from outside Court— point on with another unanimous as to the indeed occurred all sources—as has —was validity power; point. superseding of it is The back now our recent cases on (cid:127) made precedent grant is then extensive with of rule-mak- ground history and of present statute, ing authority adjudicators. in unknown to the likely be deference, important and, 2073.) C. And how be further could it But it is I submit § sep- impel carried out if the two ling.2 distinctive types appellate arate of must neces- review Supreme in Court consti- When sarily be continued? on Rules of Advisory tuted Committee difficulty The -Committeehad charged with the no in reach- Civil Procedure ing at once duty drafting rule-making set of rules for effective decision that authority as to procedure, taking existed all activities district that Committee place courts, prob- in the though was confronted at once with definite district even power appellate might consequentially prac- lems as to the extent of Court’s affect ; adopt particular urgently rules needed to tice this would include such matters as procedure appeal, make the new workable. manner taking allowing These questions not simple arose because the been substitution of the notice of citation, visualized the draftsmen of the then for the old allowance all Act, Enabling passed up 193d—the as to making the details record June 723b, former 28 723c—and that upper U.S.C. for transmission to the court. It also §§ appeared included, gaps quite act to have certain and am- clearly, 54(b) Rule in granted authority form, biguities. original The statute which accelerated finality practice procedure in regulate many “split instances of the courts, questions hence district arose judgment,” joinder made useful the wide power by the extent of the parties rule to claims featured in the evidence, regulate procedure. admission su- This had its rule definite 54(b) there, Note to the Committee’s not F.R. stated since the Report of June show know 70-72] writer at the time of the did preparation this does extreme to the violence its valid ity of the rule makers. intent was under attack. discussing background 2. While the cases amended this is stated in Mitchell, are collected Pabellon v. Grace The Federal Rules Civil Dudley Line, Procedure, certiorari de David Field Cen- Supply Pabellon, tenary Essays 73, 74-79, nied Coston Co. v. important consequence May reprinted Thus it was as Fore the trial court. affording Preliminary basis word to of Rules of Draft immediately effective xi, winning party, May 1936, pp. Procedure, Civil xii. for the award costs execution, reprinted and the This in the footn writ of clear issuance of a statement— incorporated specific effect refer 62(h). like. Rule ote4 —was See Its Report appellate consequential be- ence Civil Pro procedure was Rules of express- cedure, April p. of a statute Since the cause of the existence always Court, carefully advised, adopted Congress thus these ing the —and very important quite appeals provisions, has been control—that should na within its turally adopted assumed that it the Commit taken decisions. be from final tee’s Practice view. Moore’s Federal problem toas But there still remained 193-8; 1.04, 1st Federal Practice Ed. Moore’s practice appellate regulations those direct ¶1 .04[4], p. 2d Ed. 1948. More quite to make which would be over, very it should noted that these mat procedure workable. a new uniform carefully explained by ters were Chairman problem the Committee Faced with this Mitchell of the in 1938 at the Committee Reporter, to present writer, asked the as its Cleveland Rules Institute the American report to legal background the and examine 182, Association, pp. Bar and 181, again assistance thereon. This he did the with Symposium, p. at the 226.5 Such New York associates, presenting lengthy memo contemporary “by statements the authorized published in randum which then sub was know, spokesmen” Committee, the we as Supreme Clark, stance as Power weight” have been held “of in the Court’s Appellate to Proce Court Make Rules of Mississippi later the rules. consideration of dure, 1303, 1936. We found Harv.L.Rev. 438, 444, Murphree, Corp. Pub. 326 U.S. power reserve was considerable there 242, 66 S.Ct. 90 L.Ed. 185. Supreme in Court earlier statutes the subsequent was illustrated exercise, history, and The whether rules traditional to and in particular over down as a whole or rule the Court’s viewed this 1912, amply interpreta cluding Equity stressed, Rules of that be bears out beyond act authority Considering, tion originally existed thus made. necessary itself, rules as well as first, these additional it once recog rule was at adopted split The Committee this original judg others. nized that its form of view, generally it forth with pains multiple to set ment on claims but took was a classes rules explaining change the two of former definite extension care-— question principles, as, example, lack of as to the in situations involved and in* Hughes permissive of volving arising letter to Chief counterclaims first—in out Justice subjects. Supreme “(2) Court to Power deal with these An elaborate relating prepared way dealing to the has make rules in practice memorandum been appeals. enabling statute under on with the various statutes The pro- Supreme operating prac- to are relates to Court make which we ceedings rules tice, the United District Committee concluded that place Many particular matters which take if statute under which Courts. affecting appeals acting, general courts are it then under other in the lower scope admittedly within the stat- statutes the extent to which we have ute, settling appeals power of the records such dealt with is within many respects, appeal. There are for however, the Court.” 57, 70, 72, which the The above Committee found rules cited— practice to final it almost essential touch 68—became in enactment Rules relating appeal. (See, Rule to the and 52. an error the admission of effect of Mitchell 5. Chairman cited and relied evidence; the effect Rule to the writer’s article in 49 Harv.L.Rev. charge; Rule 70 as an error in the to 1303, 1936, which is also cited in the errors; of other Rule 72 as effect Advisory note Committee’s com- taking appeals; the manner of pleted 73(a), very important Rule findings Rule as to the effect subject covering manner, note jury-waived case.) in a (in part), matter considerable and—now absolutely felt Committee —the time of note by the indicated So eration is somewhat differing of distinct and transactions.6 (Pre amendment compelled, drafts of felt earlier clear this that this court was Amendments, Proposed Corp.( liminary Draft of Pictures Metro-Goldwyn in Collins v. Preliminary May Second con earlier to overrule set Draft, 63), but is forth May 1945, mat length At tra cases in the circuit.7 Report of its note in some detail in the Supreme Court ter came before the ex Committee leading 70-72. The in a upheld applied the then rule June with Beardall, contacts support through its cellent opinion: Reeves v. and careful out, re and, points bar as it the bench 86 L.Ed. its approval for well-nigh universal authority ceived appears he clear This case alert aspect. proposal from these interested present criticized re groups. was What desired to do infringe change went so far as But t-he (historic of principle, store the federal while and settled on the ancient occa fering relief for some means of see, appeals,” g., e. against “piecemeal Catlin ereview immediat hard case where sional States, United The result was convenient and desirable. Obvious that 911, and it became 89 L.Ed. ob achieving a rational solution was these there necessary. Further some retreat in jectives enlightened which aroused the circuit, con notably developed, in this terest, operation, actual advance finality regard as to flict of view Court itself in Dickinson v. liable against several defendants claims Corp., Petroleum Conversion jointly. alternatively any rate not or at 299,8 94 L.Ed. This, then, singled out one of the rules support judges received the of writers and intensive-restudy Committee for present until setback.10 its of consid extent the Committee’s 1943. The Compare “But this new rule—which ef- became Steel Co. v. Nachtman Crucible 6. 19, 997, 998, America, Cir., fective on March 1948—was not in F.2d of 3 165 effect at the time of the 1947 in decree Electric v. with General Co. Marvel appro- 430, 432, this case and it would not be 287 53 Metals U.S. Rare priate attempt 408; 202, to to v. determine effect L.Ed. or Reeves 77 beyond observing 1085, 283, cases Beardall, of this kind 62 may prevent 1478, do much to them and Collins v. Metro- 86 L.Ed. coming Goldwyn Corp., Cir., from here.” 2 F.2d Pictures 106 Sheppy Stevens, Cir., 83, overruling 2 v. validity a district of the rule as Stromberg 946, Motor De 200 F. regulation specifically upheld in court Arnson, Cir., v. 2 239 F. vices Co. Cir., Daumit, 179 F.2d Winsor 7 cases. See also Audi with such earlier cases are cited Pabellon Other Mfg. Co., Cir., 2 Vision Inc. v. RCA Line, Cir., 2 v. Grace 191 F.2d cer 621, 623, 147 A.L.R. 136 F.2d Supply tiorari denied Coston Toomey Toomey, U.S.App.D.C. and 77, Pabellon, 201; 72 S.Ct. Dodge’s reference 149 F.2d 19. Mr. extensivq applica such an include judgments” “piecemeal Wash to Lyman Remington tion of the rule as v. questioned Proceedings Institute, ington of Wash Rand, Cir., ington Rules Institute on Federal 2926-2930, Moore’s Federal Practice prophetic. 1938, appears to have been compare explicit Ed. 1951. Thus 2d language Cir., Kauffman, supra. of Etten v. 302, 7. See note 6 certiorari denied 340 Court, quoting the new 8. The after stating purpose,” “obvious in full implication Flegenheimer direct notes, “to committee as indicated Sugar Co., Manitoba 182 F.2d uncertainty possible as far as reduce contrary holding later same to the litigant hazard assumed and the in the text. also 47 Col.L. case cited See appeal or does not either does who ; 239; Yale Rev. 32 Minn.L.Rev. 624 56 judgment of the character we have 141; 1186; Moore’s L.J. 58 Yale L.J. gives opportunity it here” because Commentary on Code the U. S. Judicial litigants District “to obtain from the 1949; 515-518, also 47 Mich.L.. cf. statement of what Court a clear 442; Rev Mich.L.Rev. 15 U. intending final- with reference to Chi.L.Rev. 960. denied, ity, if such direction is Mills, Flegenheimer litigant protect 10. After v. General himself ac- can at least supra, Cir., a similar re- cordingly,” states: then Validity strongly supported by certainly is also include at least Rules important (.e), 61, 73, 74, 75, 76, other Neces- 53 (2), rules. 81(a) sarily included, 54(b), (3), along be with Rule and the (7). included are former Thus group directly of rules which affect abolishing exceptions rules rulings on practice, evidence, district court but have also requiring exceptions consequential some appellate charge, for meaning concerning findings .effect or practice, '50,55, 56, report are at of a master, error, least Rules of a harmless 58, 59, 60, 68, 70, and These include method and time taking appeal, 71A. and all well such known relating up record, rules as those to details as to making includ

voluntary involuntary ing or dismissal with or the abolition of summons and severance prejudice, special special without procedures verdicts and in- and various subject made terrogatories, appeal the motion directed ver- to the Here, too, rules. citation of decision, trials, dict with reservation the wealth precedents of supporting must be restrained; from judgments, summary relief default and may reference limited judgments, when clerk judg- shall enter famous “clearly erroneous” rule find as to ment, the judgment, ings method offer of fact (the supplanting uniform rule judgment specific acts, directing including the old equity divided and divergent law and title, pro- the vesting applied and the literally extensive reviews and hundreds of up cedure cases),13 of the new condem- materially recent rule shorten Many ing nation rule. of these rules have been the time for upheld in this court extensively litigated specific citation others,14 and the Court among surely unnecessary. two, But to cite provisions extensive effect provisions delay filing any reservation or one of several listed motions auto decision of matically the motion for directed verdict11 suspends the time running entry complete, partial, and for the appeal.15 or Truly unduly it does not seem summary other form of judgment12 would venturesome to suggest that the Court surely part seem far-reaching likely repudiate body this substantial precedent rule now under consideration. blot out so much of .effective procedure, particularly when it is Turning group comprising other yet recalled that it has not ever invalidated directly regulate appellate prac those which rule, not even such a 4(f) tice and which rule as extend must be invalid if fortiori doubtful, ing cited those above are we must the territorial limits of effective serv Co., 338, 342, 341, suit was 'reached in Cab U.S. Bendix Aviation 338 70 S.Ct. Sept. Corp. Glass, Cir., 177, v. 94 3 L.Ed. 150. Judge Biggs dissenting, Chief but Consolidated, Inc., 14. Mitchell v. White rehearing is now on case before full 958, 889, 336 U.S. 69 S.Ct. 93 L.Ed. [Opinion bench. withdrawn and new 1111; Schuette, Cir., Petition of 2 178 opinion, affirming, 1952, 19, filed Feb. 920; Lehigh Valley F.2d Smith v. R. 267.] F.2d 195 Co., Cir., 592; 2 174 F.2d McAllister v. Cosmopolitan Shipping Co., Cir., Montgomery Duncan, 2 11. 169 Ward & v. 4, merits, 189, 243, F.2d reversed on the Cos 311 S.Ct. 85 U.S. 61 L.Ed. Paper mopolitan Shipping McAllister, 147; Virginia Pulp Co. v. 337 Cone v. West & 783, 1317, 1692; 212, o., 752, U.S. 69 93 L.Ed. 330 U.S. 67 S.Ct. 91 C Co., Cir., 849; Liquor v. Preston Aetna.Life Ins. 7 Globe Co. v. San 10, Roman, 174 F.2d certiorari denied Aetna Life 332 U.S. 68 S.Ct. 92 Preston, Ins. Co. v. 338 70 L.Ed. 177. 504; 94 L.Ed. Hart v. Knox See, g., 12. e. Sartor v. Arkansas Natural County, Cir., change 171 F.2d 45. This Corp., Gas 321 U.S. 64 S.Ct. by urged been the Judicial Confer 967; Griffin, 88 L.Ed. Griffin v. 327 U.S. ence, Sept.Sess.1944, 16; Sept.Sess.1945, 220, 235, 236, 66 S.Ct. 90 L.Ed. 25. 635. Healy Pennsylvania Co., Cir., 15. v. R. Gypsum 13. United States v. United 181 F.2d certiorari denied 340 U.S. 364, 394, 395, 9-10, 674; 68 S.Ct. 71 S.Ct. 95 L.Ed. Recon Corp. Mouat, Cir., 92 L.Ed. United States v. Yellow struction Finance The by policy piecemeal appeals. legis- widely questioned even ice, which was can without changé See still lature Advisory Committee. of the members wishes; point rule Murphree, reference to the if it Corp. Mississippi Pub. help, than a is is rather 242, 90 L.Ed. legislative hindrance, to the execution of authori- array formidable Against this has policy. it has worked well That appears not added, ty must be it (which, influence, clarifying been a beneficial contemplation) court’s been have within Flegenheimer) (at least before cases Flegen- only suggested rationale amply a misfor- demonstate. It would be Cir., supra, Mills, heimer v. General good tune have and desirable accom- this of a inappropriateness is the abruptly plishment now blotted out. fix the judge to principle allowing trial Mills, supra, Flegenheimer General But the jurisdiction appellate court. of an anomalies, presents other or too little. proves too much suggestion beyond summary rejection rule-mak alone, inevitably and he judge, trial For ing. repudiation It not was a flat appel- spark operation time and must by the Pabellón case of a week earlier an fur- product which machinery; it his late is panel court, also of the di other but he appellate grist and until acts nishes implication rect appro- on the earlier And no nothing for review. there panel, Flegen same yet case another priate to make before yet means have been devised Co., Cir., ready. Sugar In heimer Manitoba he is judge a trial decide before judge’s finding administrative F.2d under any event is a matter for directors, 54(b) Rule the order through councils or make control judicial reprisals affecting liti- reviewable. Such freedom from the con not for precedent only to gants. confusing has fines of judge the trial such con- Since public, colleagues picture, it is also to who have trol of the somewhat over-all question impending it surprising find when his action no doom before notice print.16 by merely appears possible in this small area of confusion is It is made practice liti- canalized so as to be understood of this circuit never sit gants 46(c). and other courts a time when authorized 28 U.S.C. banc, precepts, And knowledge is most useful. recount though does violate confusing upon by when of the rule agreed more the effect ed Cotton Mather judge postpone allowing magistrates, magis decision “that one governor and ready signal proceedings until such time he is final- an trate cross the shall not ity readily completely other, conceded. with him.” advising without first Actually present policies the rule carries out Americana Mather, Magnalia Christi with both Ed., deftness and definiteness. quoted in 65 On Harv.L.Rev. 113. particularly the litigants, decision, latter is a point boon taken for to wit the exact by as noted the Court in Dickinson Petro- petition v. of an intervention that dismissal Corp., supra leum Conversion note 8. It final, merits cannot trial on the be after a through takes care of few hard cases fairly clearly the other seem the authorities by only judicial the medium action by way, express illustrated either such an stage officer can who case Dickinson v. Petroleum Conver ruling as requiring are the im- know cases 507, 70 Corp., supra, 338 U.S. S.Ct. sion mediate review. For the others it analysis 322,17 v. or the set forth Cohen proper adjunct to the enforcement of the Corp., Loan Beneficial Indus. by describing 16. Nor is Actually, the blow softened lor, F.2d 940. how colleague’s opprobrionsly a hard work ever, the latter case dealt with an order “dictum.” dismissing one two defendants alter charged expressly nately excepted 17. The failure to all cite case seems stranger because it was situation with reversal tile intervention citations. page Mulligan, Cir., Dickinson 163 F.2d at note Of 4- by advantages urged one of the real the court because course itself by away held itself it does bound what it considered Tay the erroneous distinctions of the earlier decision in Clark small law. followed L.Ed. Compania Swift & Co. Packers v. Colom S.A., Caribe, biana Del certain L.Ed. result with, ly more in line been the what had previous

court’s in favor of views

greater appealability. The case relied on admiralty controlling court as was an Laird,

case of Cushing actually did intervenor,

not involve the claims an but parties; an outsider’s claims were only by urged, garnishees

indeed

duly required summoned in to defend and

answer,18 quite who were thus in a situation trying

other than of intervenors way litigation.

force their into a On its may ques

own level the case therefore particularly

tioned. But because upon generally rule-making

doubt throws rule, upon good working repudi Hankins, Amarillo, Tex., ap- A. B. here, it, quite necessary. ation of seems pellant. Folley, Foster, A. E. H. and C. J. J. Roberts, Tex., Amarillo, all Dudley, B. J.

Loyd City, Benefield, Okl., Oklahoma appellee. HOLMES,

Before RUSSELL RIVES, Judges. Circuit HAM al. BLANKENSHIP et RUSSELL, Judge. Circuit No. 13686. This arises from a suit re- possession cover upon and remove cloud Appeals United States Court title by appel- instituted the trial Court Fifth Circuit. lant, Texas, against a citizen of appel- Feb. lees, corporations citizens and of other Rehearing Denied March Right States. to relief based

claim that mineral July two dated deeds appellant’s executed father and mother, appellees under which claim to title, derive are void because secured grantees in a transaction violation Sky the Blue Laws Texas. Article seq., et Texas, Revised Civil Statutes of seq., Code, Article 1071 et Penal i, law, e., 1925. The issue whether “voidable”, were deeds “void” or presented by plaintiff’s to the trial Court summary judgment. motion Fed.Cas.No.3510, 18. This is stated in the Court Ben. report amply made clear "and in the re- 15 Blatch. 219. ports of the case below. Fed.Cas.No.

Case Details

Case Name: Lopinsky v. Hertz Drive-Ur-Self Systems, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 10, 1951

Citation: 194 F.2d 422

Docket Number: 98, Docket 22156

Court Abbreviation: 2d Cir.