88 F. 280 (E.D.N.C. 1898), Emerson Co. of West Virginia v. Nimocks

Citation:88 F. 280
Party Name:EMERSON CO. OF WEST VIRGINIA v. NIMOCKS.
Case Date:June 25, 1898
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 280

88 F. 280 (E.D.N.C. 1898)

EMERSON CO. OF WEST VIRGINIA

v.

NIMOCKS.

United States Circuit Court, E.D. North Carolina.

June 25, 1898

M. R. Walter, Stewart & Stewart, and Battle & Mordecai, for complainant.

Page 281

F. N. Busbee, John W. Hinsdale, and Ernest Wilkinson, for defendant.

SIMONTON, Circuit Judge.

Before entering upon the discussion of the merits of this case, two preliminary questions must be met and decided.

1. The complainant sues as a corporation, and in its complaint sets out the fact of its corporate existence. The defendant, in his amended answer, denies all knowledge, by information or otherwise, of the corporation, of its creation or present corporate existence of complainant. In taking the testimony in chief, no evidence was offered on this point by complainant's counsel, but when taking the testimony in rebuttal, omission having been discovered, the evidence was offered, and is in the record. Ordinarily, this objection, which goes to the person of the complainant, should have been taken by plea in abatement. 1 Daniell, Ch. Prac. (Perk. Ed.) 654. The defendant, having fully answered, may be deemed to have waived this objection. Society for the Propagation of the Gospel v. Town of Paulet, 4 Pet. 480; Pullman v. Upton, 96 U.S. 329. If, however, it be concluded that the answer seeks to avail itself of a defense which could have been taken by plea, it does not accomplish this result. At the most, the answer amounts to a general denial. That will not raise this issue. U.S. v. Insurance Companies, 22 Wall. 100; Steamship Co. v. Rodgers, 21 S.C. 27; Association v. Read, 93 N.Y. 477. And above all, inasmuch as the omission to introduce the evidence in chief was an inadvertence of counsel, this will be excused, especially as the formal testimony is introduced before the taking of evidence has closed, and no possible harm could have come to defendant. Hood v. Pimm, 4 Sim. 101; Beach, Eq. Prac. Sec. 549. See, also, Ryan v. Martin, 91 N.C. 464; Johnson v. Smith, 86 N.C. 498.

Another point must be noticed. The time for taking rebuttal testimony in this case on the part of the complainant had been extended to July 21, 1897. On 6th September, 1897, application was made by complainant to the circuit court (Judge Purnell presiding), for further extension. This was refused. The application was renewed on 18th September following, and was again refused by Judge Purnell. Notwithstanding this refusal, the complainant went on and took the testimony of Jacob Ulman, which appears at large on the record. The counsel of defendant were notified of the intention to take this testimony, and of the time and place. They did not attend. It is no part of the record, and will be disregarded. It does not stand on the same footing as testimony taken without previous leave of the court, as in Coon v. Abbott, 37 F. 98, and Wenham v. Switzer, 48 F. 612. This testimony was taken despite the refusal of the court to allow it to be done.

One other question has been made in this case, important as one of practice. Just before closing the examination in chief of complainant's expert, Prof. Harry Fielding Reid, he was asked the question: 'Just state in conclusion what you understand to be the invention of Emerson, as expressed in patent in suit No. 535,982. ' Replying to this question, he read his answer from typewritten sheets.

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To this the defendant objected. Upon cross-examination it appeared that these typewritten sheets were prepared by counsel for complainant in his office, not from any notes of the witness, and afterwards submitted to the witness on the morning of the examination. He revised them until they exactly represented his opinion on the subject. The original memorandum was produced, and the changes made by witness were shown. These did not change the memorandum in any material respect...

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