C. & A. Potts & Co. v. Creager, 4,244.
| Decision Date | 15 January 1896 |
| Docket Number | 4,244. |
| Citation | 71 F. 574 |
| Parties | C. & A. POTTS & CO. v. CREAGER et al. |
| Court | U.S. District Court — Southern District of Ohio |
C. & E W. Bradford, for complainants.
Wood & Boyd, for respondents.
This case is before the court on a petition which is, in one aspect, a petition for rehearing, and upon a showing of newly-discovered alleged anticipations of the complainants' patent. Upon the hearing this court dismissed the bill. The supreme court, upon appeal, reversed the decree of dismissal, and on the 7th of January, 1895, remanded the case for further proceedings in conformity with its opinion. A decree for an injunction and for an accounting was thereupon entered in this court. That decree is an interlocutory decree, not a final decree. The petition is for leave to file a supplemental bill for the purpose of bringing before the court, in due form, newly-discovered evidence, and for a rehearing of the cause at the time and in connection with the hearing of said supplemental bill; also for leave to bring in said newly-discovered matters in such manner and form as may be most consistent with the rules and practice of the court. This is not a case for a supplemental bill, which is in the nature of a bill of review. Such bills can be brought only upon a final, and not upon an interlocutory, decree. The proper practice requires a petition for rehearing. It is objected that the proceeding is wholly improper, the only jurisdiction remaining in this court being to execute the mandate of the supreme court. Counsel cite Sibald v U.S., 12 Pet. 492; Ex parte Story, Id. 339; Humphrey v. Baker, 103 U.S. 736; Stewart v Salmon, 97 U.S. 361; Ex parte Dubuque & P.R. Co., 1 Wall. 69; Leslie v. Town of Urbana, 6 C.C.A. 111, 56 F. 762. In each of these cases, however, the decree directed by the supreme court was the final decree in the original suit. Here the decree is interlocutory. The mandate has been executed by an entry made in exact pursuance of its terms. Upon the authority of In re Sanford Fork & Tool Co. (decided recently by the supreme court, but not yet officially reported) 16 Sup.Ct. 291, under a mandate directing an interlocutory decree and further proceedings in conformity with the opinion of the supreme court, the lower court may, in its discretion, allow amendments to the pleadings, and a rehearing upon a showing such as is made by the defendants in this case. In that case a bill was filed to set aside a mortgage. The defendants filed an answer insisting that the mortgage was valid. The plaintiffs filed exceptions to the answer for insufficiency. The exceptions were sustained by the court below, and, the defendants declining to plead further, and electing to stand by their answer, the court entered a final decree in favor of the plaintiffs, which was reversed by the supreme court in Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U.S. 312, 15 Sup.Ct. 621. The case of In re Sanford Fork & Tool Co. was for mandamus to command the judge below to enter a final decree in favor of the defendants below in accordance with the mandate of the supreme court in Sanford Fork & Tool Co. v. Howe, Brown & Co. The supreme court said that when the decree of the circuit court sustaining the plaintiffs' exceptions to the answer, and (because the defendants declined to plead...
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Sundh Electric Co. v. Cutler-Hammer Mfg. Co.
...I.e., the Cutler-Hammer magnet and General Electric Magnets A to G, inclusive. [4] This decision resulted from and disapproved Potts v. Creager (C.C.) 71 F. 574, and inconsistent with the language of Shipman, J. in Re Marquand, 57 F. 189, 6 C.C.A. 309. Therefore the latter case can no longe......
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Anderson Foundry & Machine Works v. Potts
... ... by the United States circuit court of appeals for that ... circuit, each reversing a decree of the circuit court. Potts ... & Co. v. Creager, 155 U.S. 597, 15 Sup.Ct. 194, 39 L.Ed. 275; ... Id. (C.C.) 44 F. 680; In re Potts, 166 U.S ... 263, 17 Sup.Ct. 520, 41 L.Ed. 994; C. & A. Potts & ... ...
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Goldwyn Pictures Corporation v. Howells Sales Co., Inc.
...proceedings in conformity' with its opinion. Thereupon the lower court permitted an amendment under which testimony was offered ((C.C.) 71 F. 574; 77 F. 454), whereupon a mandamus was applied for (In re Potts, 166 U.S. 263, 17 Sup.Ct. 520, 41 L.Ed. 994), and granted; the court saying that, ......
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C. & A. Potts & Co. v. Creager
...an examination of the evidence, the circuit court set aside the decree for the complainant, and entered a new decree, dismissing the bill. 71 F. 574; 77 F. 454. The complainant then had recourse to proceeding in mandamus in the supreme Court to compel the circuit court to comply with the de......