Hohorst v. Hamburg 8212 American Packet Co

Citation37 L.Ed. 443,148 U.S. 262,13 S.Ct. 590
Decision Date27 March 1893
Docket NumberNo. 134,134
PartiesHOHORST v. HAMBURG—AMERICAN PACKET CO
CourtUnited States Supreme Court

S. S. Clark, for appellant.

Walter D. Edmonds, for appellee.

Mr. Chief Justice FULLER delivered the opinion of the court.

This was a bill filed by Friedrich Hohorst, a citizen of the state of New York, 'against the Hamburg-American Packet Company, a corporation organized and existing under the laws of the kingdom of Hanover, empire of Germany, and doing business in the city of New York; Henry R. Kunhardt, Sr. Henry R. Kunhardt, Jr., George H. Diehl, citizens of the United States, and residents of the state of New York; and Arend Behrens and William Koester, citizens of the United States and residents of the state of New Jersey,'—for infringement of patent, in the circuit court of the United States for the southern district of New York, September 15, 1888. September 17th the subpoena was served on Henry R. Kunhardt, Sr., as a defendant, and as general agent of the Hamburg Company.

November 5, 1888, a general appearance for all the defendants was filed, and on December 18, 1888, a demurrer on behalf of the packet company, assigning as grounds that the causes of action against the several defendants were distinct and unconnected, and hence that the bill was multifarious, and for want of equity. A motion was made by complainant December 24th to amend, and on January 7, 1889, a motion by defendant to dismiss. On January 28, 1889, leave to amend was granted, and the motion to dismiss denied, and on February 2, 1889, the amendments were made. These consisted in the insertion of the word 'jointly' in the allegation of the defendants' infringement, and also of the following allegation: 'Your orator further states that all of the defendants above named are inhabitants of the city and county of New York; that the defendant the Hamburg-American Packet Company has its principal business office in this country, located in the city and county of New York; that the defendants Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, Arend Behrens, and William Koester are, and during the time of the infringements above set forth were, copartners under the firm name of Kunhardt & Co., and as such copartners are and were the agents and managers of the business of the Hamburg-American Packet Company in this country, and have their principal business office as such located in the city and county of New York, and that the said infringements were committed in the prosecution of such business, and all the defendants have co-operated and participated in all the said acts and infringements.'

On February 16, 1889, defendant Hamburg Company served notice of final hearing upon the bill of complaint and demurrer, and on February 21st a notice was given of a motion that the appearance entered on behalf of the Hamburg Company be changed from a general appearance into a special appearance, and the service of subpoena made upon that defendant be set aside, and the bill of complaint dismissed as against the company, because of lack of jurisdiction of the court over its person.

In April, 1889, an order was granted that unless complainant withdrew his amended complaint as to the defendant company, and stipulated to go to trial as to said defendant on the original bill of complaint, the notice of appearance should be, and was thereby, amended into a special appearance, and the service of the subpoena set aside, and the bill of complaint dismissed as against said company. 38 Fed. Rep. 273.

On April 11, 1889, the notice of appearance was amended accordingly, subpoena set aside, and the bill of complaint dismissed as against the company; whereupon complainant appealed to this court.

So far as appears from the record, the suit is still pending and undetermined as against the codefendants of the company. We are of opinion, therefore, that this appeal cannot be maintained, because the decree rendered in favor of the company was not a final decree.

In U. S. v. Girault, 11 How. 22, 32, which was a writ of...

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