Hurd v. Sheffield Steel Corp.

Decision Date25 April 1950
Docket NumberNo. 14055.,14055.
Citation181 F.2d 269
PartiesHURD v. SHEFFIELD STEEL CORP.
CourtU.S. Court of Appeals — Eighth Circuit

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles, Kansas City, Mo. on brief for appellant.

Richard S. Righter and Horace F. Blackwell, Jr., Kansas City, Mo., on brief for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a summary, judgment entered on motion of appellee. The parties will be referred to as they were designated in the trial court. Plaintiff brought this suit charging the infringement of a patent which he alleged had been issued to him for a "composition for coating metal being formed." A copy of the patent was attached to the complaint and by proper reference made a part of it. He alleged that the patent was being infringed by the defendant and that defendant had been infringing his patent for a long period of time. He then asked for an accounting, for an injunction and for general damages.

Defendant answered, denying infringement, and pleaded invalidity of the patent issued to plaintiff. It then alleged "that on July 25, 1939, plaintiff executed and delivered to Theodore B. Dull a transfer and assignment of an undivided fifteen (15%) per cent of the full and exclusive right, for the United States and elsewhere, in and to the invention secured by said patent," and that said assignment was duly acknowledged and recorded in the United States Patent Office on April 3, 1941. A verified copy of the assignment was attached to and made a part of the answer. It was also alleged that the assignment was in full force and effect and that Theodore B. Dull was and ever since July 25, 1939 had been co-owner with plaintiff of the patent and hence, he was an indispensable party plaintiff to the suit. A motion for summary judgment was made by defendant on the ground that plaintiff's assignee was an indispensable party plaintiff. The motion was submitted on the pleadings, the exhibits and the affidavit of Theodore B. Dull.

The written assignment executed by the plaintiff contains the following provision:

"Now, therefore, in consideration of $1.00, the receipt of which is hereby acknowledged, I, Harold R. Hurd, by these presents do sell, assign and transfer unto Theodore B. Dull the undivided Fifteen per cent (15%) of the full and exclusive right, for the territory of the United States and for all foreign countries in and to the said invention as described in the specification executed by me on the 24th day of July, 1939; said invention, application and letters patent to be held and enjoyed by the said Theodore B. Dull to his interest, for his use and behoof and for his legal representatives, to the full end of the term for which said letters patent may be granted, as fully and entirely as the same would have been held by me had this assignment and sale not been made."

The instrument contains further description of the patent, giving its date and serial number. It was duly acknowledged and recorded in the United States Patent Office April 3, 1941.

The affidavit of Theodore B. Dull, which was submitted in support of defendant's motion, recites, among other things that he "is the Theodore B. Dull identified as the assignee in the assignment by Harold R. Hurd, dated July 25, 1939, by which Hurd transferred to him an undivided fifteen (15%) percent of the full and exclusive right in and to an invention secured by Patent No. 2238738. Said assignment was delivered to him by said Hurd on or about July 25, 1939. Affiant has carefully examined the photostatic copy of said assignment attached to and made a part of defendant's answer as Exhibit A in the above case, and carefully compared it to the original assignment and states that said photostatic copy is a true and correct copy of said original.

"By virtue of said assignment, affiant is now and has at all times since July 25, 1939, been an owner of fifteen (15%) per cent of the right in and to the invention secured by the said patent and is therefore a coowner, with said Hurd, of said patent. He has never assigned or transferred any part of his said interest to said Harold R. Hurd or anyone else, and the said assignment has never been revoked or otherwise terminated, but remains in full force and effect.

"He will not consent to join said Harold R. Hurd in this suit or any other suit for the alleged infringement of said patent by Sheffield, either as a party plaintiff or defendant."

The court, reciting in substance the foregoing facts, granted defendant's motion and dismissed plaintiff's complaint.

It is the contention of plaintiff that the court erred in sustaining defendant's motion for summary judgment because (1) misjoinder of parties is not ground for dismissal and (2) the...

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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 26, 1967
    ...Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953); Gibson v. Security Trust Co., 201 F.2d 573, 575 (4th Cir. 1953); Hurd v. Sheffield Steel Corp., 181 F.2d 269, 271 (8th Cir. 1950); Christianson v. Gaines, 85 U.S.App.D.C. 15, 174 F.2d 534, 536 (1949); Parmelee v. Chicago Eye Shield Co., 157 F.......
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    ...for a trial, but rather a judicial search for determining whether genuine issues exist as to material facts. Hurd v. Sheffield Steel Corp., 8 Cir., 1950, 181 F.2d 269, 271, Dewey v. Clark, 1950, 86 U.S.App.D.C. 137, 180 F.2d 766, 772. The lower court cannot try out factual issues on a motio......
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    ...866; Wilkinson v. Powell, 5 Cir., 1945, 149 F.2d 335; Harris v. Railway Express Agency, 10 Cir., 1949, 178 F.2d 8; Hurd v. Sheffield Steel Corp., 8 Cir., 1950, 181 F.2d 269; Compania De Remorque y Salvamento, S.A. v. Esperance, Inc., 2 Cir., 1951, 187 F.2d 114, 6 Sarnoff v. Ciaglia, 3 Cir.,......
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    ...and applied by this court in Gifford v. Travelers Protective Ass'n, 9 Cir., 1946, 153 F.2d 209, 211. And see, Hurd v. Sheffield Steel Corp., 8 Cir., 1950, 181 F.2d 269, 271. This court, in the widow's case, has held that the three acts of concealment were fatal to recovery, — (1) the hemorr......
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