Salone v USA Reply Brief for Plaintiff Appellant

    IN THE UNITED STATES

C O U R T  O F  A P P E A L S
FOR THE FIFTH CIRCUIT

No. 16,190

ORLEANS PARISH SCHOOL BOARD
Appellant,

versus

EARL BENJAMIN BUSH, ET AL.,
Appellees.

PETITION FOR REHEARING
and

BRIEF IN SUPPORT THEREOF

GERARD A. RAULT,
803 American Bank Building, 
New Orleans, Louisiana; 

Attorney for Appellant.



IN THE UNITED STATES 
C O U R T  O F  A P P E A L S  

FOR THE FIFTH CIRCUIT

No. 16,190

ORLEANS PARISH SCHOOL BOARD
Appellant,

versus

EARL BENJAMIN BUSH, ET AL.,
Appellees.

PETITION FOR REHEARING
and

BRIEF IN SUPPORT THEREOF

Now into Court comes the Orleans Parish School Board, 
Appellant in the above numbered and entitled cause and 
presents this, its petition for a rehearing and in support 
thereof respectfully shows that rehearing herein should be 
granted for the following reasons, to-wit:

(1) The court erred in holding that appellant herein, 
defendant below, waived the filing of bond.

(2) The court erred in holding, in effect, that the pre­
liminary injunction issued without the posting of bond.



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(3) The court erred in failing to vacate the injunction.

Respectfully submitted,

GERARD A. RAULT,
803 American Bank Building, 
New Orleans, Louisiana 
Attorney for Appellant.

BROWNE & RAULT,
New Orleans, Louisiana;
OF COUNSEL

CERTIFICATE OF COUNSEL

The undersigned attorney of record for appellant, Or­
leans Parish School Board certifies that the foregoing pe­
tition for rehearing is not presented for purposes of delay 
but is in his opinion well founded in law and fact and proper 
to be filed herein.

GERARD A. RAULT,
Attorney for Orleans Parish 
School Board, appellant herein.



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CERTIFICATE OF SERVICE

I certify that on this day I have served copies of the fore­
going petition for rehearing together with copies of the brief 
in support thereof on counsel for appellees.

Dated th is_______ day of March, 1958.

GERARD A. RAULT,
Attorney for Appellant,
803 American Bank Building, 
New Orleans, Louisiana.



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IN THE UNITED STATES 
C O U R T  O F  A P P E A L S  

FOR THE FIFTH CIRCUIT

No. 16,190

ORLEANS PARISH SCHOOL BOARD
Appellant,

versus

EARL BENJAMIN BUSH, ET AL.,
Appellees.

BRIEF IN SUPPORT OF APPLICATION 
FOR REHEARING

DEFENDANTS COULD NOT 
WAIVE POSTING OF BOND

The court in its opinion issued herein held that appellant, 
defendant below, waived the posting of bond by the ap­
pellees, plaintiffs below, when it failed to raise the ques­
tion of bond until after the injunction had been affirmed 
by this court on appeal. In view of the fact that both the 
Federal Rules of Civil Procedure and the order of the Dis­
trict Court for the preliminary injunction make it a condi­
tion precedent that a bond be posted prior to the issuing of 
the injunction, it would seem apparent that defendant was 
without power to waive the bond. This court’s holding is to 
the effect that defendant by its inaction or failure to' pro­



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test could in fact authorize plaintiff to ignore the Federal 
Rules of Procedure and an explicit order of the District 
Court.

THE PRELIMINARY INJUNCTION COULD NOT 
ISSUE WITHOUT THE POSTING OF BOND

While it is true, as stated by the court, that in our orig­
inal brief herein we cited no case in support of our conten­
tion that the injunction failed to issue until the posting of 
bond, however the reason for this is clear. We could find no 
case wherein a plaintiff was audacious enough to seek to 
enforce or sustain an injunction after failing to post the 
bond required by the court. However we did cite cases, as 
this court recognized in its. opinion, holding that a tempor­
ary injunction is void when the District Court fails to order 
the posting of bond. See Chatz. vs. Freeman et al, 204 F2d, 
784 (CCA 7, 1953); Halpert vs. Engine Air Service, 212 F2d, 
860 (CCA 2, 1954); Hopkins et al vs. Wallen et al, 179 F2d, 
136 (CCA 3:1949); Utah Radio Products Co. et al v. Bou- 
dette et al, 69 Fed. 2d 973 (CCA 1, 1934). It would seem in­
escapably true that if an injunction is void because the 
court fails to order the posting of bond it must necessarily 
be void if a litigant fails to post bond when the court orders 
it.

We submit that in view of the provision of rule 65 (c) of 
the Federal Rules of Procedure “no restraining order or 
preliminary injunction shall issue except upon the giving of 
security by the appellant” , the order for injunction which 
was issued by the District Court means precisely the same 
thing as if it had been couched in language similar to the 
following: “Let injunction issue herein upon plaintiffs’



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posting bond in the sum of $1000.00” If the order for in­
junction had been so phrased we doubt if it would have 
been seriously contended that an injunction issued prior 
to the posting of bond. Yet actually there is no difference in 
the meaning of the two orders. As both the law and the 
court directed that a bond be posted prior to the issuance 
of an injunction we submit that no injunction was in effect 
until the posting of such bond.

THE COURT ERRED IN FAILING TO VACATE THE 
INJUNCTION

As no injunction could or did in fact issue until after the 
posting of bond by plaintiffs herein 16 months after the 
date of the District Court’s order, it was clearly error for 
the District Court not to grant defendant’s motion to va­
cate. Its failure to grant such a motion allowed plaintiffs to 
determine on which day and time an order of the District 
Court became effective. As previously urged, it placed in 
plaintiffs’ hands the power to determine when a prelimin­
ary injunction should issue. Granting that the District 
Court had the power to issue a preliminary injunction as of 
the date of plaintiffs posting bond, which it in effect did 
when it denied defendant’s motion to vacate, it is funda­
mental that the court could not issue such injunction with­
out hearing evidence for the purpose of determining if a 
preliminary injunction was then necessary.



CONCLUSION

It is submitted that substantial and valid cause for re­
hearing has been shown herein and appellant accordingly 
respectfully urges the rehearing be granted.

Respectfully submitted,

GERARD A. RAULT,
803 American Bank Building, 
New Orleans, Louisiana 

Attorney for Appellant.

BROWNE & RAULT,
New Orleans, Louisiana,

OF COUNSEL.

CERTIFICATE OF SERVICE

I certify that on this day I have served copies of the fore­
going brief on behalf of appellant upon counsel for appel­
lees.

Dated this______ . day of March, 1958.

GERARD A. RAULT, 
Attorney for Appellant,
803 American Bank Building 
New Orleans, Louisiana.



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