Orleans Parish School Board v. Bush Brief on Behalf of Appellees

    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

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