Orleans Parish School Board v. Bush Brief on Behalf of Appellees
Public Court Documents
November 20, 1957

Cite this item
-
Brief Collection, LDF Court Filings. Orleans Parish School Board v. Bush Brief on Behalf of Appellees, 1957. 1581f96f-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/545e3b43-5b6f-4ae9-8bc4-9a6b096c1bfe/orleans-parish-school-board-v-bush-brief-on-behalf-of-appellees. Accessed April 27, 2025.
Copied!
MnxUb (£mu*t at Appeals For the Fifth Circuit IN TH E No. 16,190 ORLEANS PARISH SCHOOL BOARD, Appellant, versus EARL BENJAMIN BUSH, et al, Appellees. BRIEF ON BEHALF OF APPELLEES A. P. T ukeaud, A. M. T rudeau, Jr ., 1821 Orleans Ave., New Orleans 16, Louisiana. R obert L, Carter, 20 West 40th Street, New York 18, New York. T hurgood Marshall, 107 West 43rd Street, New York 36, New York, Attorneys for Appellees. IK THE United States CCnnrt of Appeals For the Fifth Circuit No. 16,190 -------------------------------------- o --------------------------------------- Orleans P arish School B oard, versus Appellant, E arl B enjamin B ush , et al., Appellees. —-------- --------------------- —o ----------------------------------- BRIEF ON BEHALF OF APPELLEES Argument Appellants, bringing a second appeal in this case, now seek a reversal of a judgment denying their motion to vacate and set aside a preliminary injunction on the ground that appellees’ failure to post bond until sixteen months after entry of the order for injunction rendered said order null and void. Appellees submit not only that the District Court was correct in denying the motion to vacate but that to have ruled otherwise would have been inconsistent with substantial justice. The requirement of security as provided by Rule 65(c), P. R. C. P., was intended to protect a party against damage caused by the wrongful issuance of an injunction. United States v. Onan, 190 F. 2d 1, 7 (8th Cir., 1951). In the instant case the injunction was not erroneously issued. Orleans Parish School Board v. Bush, 242 F. 2d 156, cert, den. 1 L. Ed. 2d 1436. And since appellants were not wrongfully enjoined or restrained, they certainly suffered no damage. United States v. Onan, supra, at p. 7. Here, albeit belatedly, the bond was filed and the failure to give the bond at an earlier date was a mere irregularity 2 which was cured by its subsequent execution. See. Standard Bonded Warehouse Co. v. Cooper, 30 F. 2d 842, 845 (W. D. N. C. 1929). Moreover, it is difficult to believe that the Federal Rules of Civil Procedure—which were designed to free courts and litigants from the antique shackles of formalism— would be susceptible to an interpretation that would counte nance a reversal for such a minor deviation. As was said in United Press Associations v. Charles, 245 F. 2d 21 (9th Cir. 1957), at p. 26: The setting aside of this verdict for purely pro cedural defect would be an archaism as flagrant as that of Baron Surrebutter. The very purpose of the Federal Rules of Civil Procedure was to eliminate complaints as to “ the technicalities of the law, the subtleties of practice and the involvements of pro cedure. ’ ’ “ The entire purpose of the rules was to strike from judges and litigants useless shackles of pro cedure to the end that a fair trial of the essential questions could be had. The trial court is vested with broad discretionary powers so long as its action is not inconsistent with substantial jus tice.” Gllaspell v. Davis, D. C., 2 F. R. D. 301, 304. “ It is quite noticeable in the new rules that there has been a distinct effort to enlarge the discretionary power of district judges.” 45 W. Va. Q. 5. In any event, even if the District Judge were in error, or even flagrant error, still this Court must apply the statutory rule: “ Harmless Error. On the hearing o f any appeal * * * in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” 28 U. S. C. A. § 2111. See also Rules of Federal Procedure, Rule 61. 3 Of course, Rule 61 was intended for guidance of trial courts; nevertheless, this Court has recognized that both trial and appellate courts are enjoined to disregard tech nical and non-prejudicial error. Dallas Railway & Termi nal Co. v. Sullivan, 108 F. 2d 281 (5th Cir., 1940). If the failure of a court to require security on a pre liminary injunction is not reversible error where the party enjoined will not be materially damaged by lack of a bond, see Urbain v. Knapp Brothers Manufacturing Co., 217 F. 2d 810 (6th Cir., 1954), cert. den. 349 U. S. 930, neither can the omission here be so classified. CONCLUSION Wherefore, appellants pray that the judgment below be affirmed. A. P. T ureatjd, A. M. T rudeau, J r ., 1821 Orleans Ave., New Orleans 16, Louisiana. R obert L. Carter, 20 West 40th Street, New York 18, New York. T hurgood M arshall, 107 West 43rd Street, New York 36, New York, Attorneys for Appellees. Certificate of Service I hereby certify that on this day I have served copies of the foregoing Brief on behalf of Appellees on counsel to Appellants by placing the same in the United States mail with sufficient postage affixed thereto addressed to Gerard A. Rault, Esq., American Bank Building, New Orleans, Louisiana. Dated this 20 day of November, 1957. T hurgood Marshall, 107 West 43rd Street, New York 36, New York, Attorney for Appellees. S upreme P r in t in g Co., I nc ., 54 L afayette S treet, N. Y. 13, B E e k m a n 3-2320 ( 1403)