Andrews v. Thum, 89.

• Decision Date: 23 June 1894
• Docket Number: 89.
• Citation: 64 F. 149
• Parties: ANDREWS et al. v. THUM et al.
• Court: U.S. Court of Appeals — First Circuit

64 F. 149

ANDREWS et al. v. THUM et al.

No. 89.

United States Court of Appeals, First Circuit.

June 23, 1894

This was a suit by Otto Thum and others against John A. Andrews and others for infringement of patents No. 278,294 and No 305,118, issued to said Otto Thum, for fly paper. The alleged infringement consisted in the sale by defendants of fly paper manufactured by Benjamin F. B. Willson, carrying on business under the name of Willson & Co. Upon complainants' threatening suit against defendants for such infringement John W. F. Willson and said Benjamin F. B. Willson had entered into an agreement with defendants that, in case any suit should be brought against defendants for infringement of letters patent by the use or sale of such fly paper, the said Willsons would assume the defense of said suit, and carry on the same to final judgment at their own sole expense, and, in case plaintiffs should succeed in any such suit, said Willsons would pay all sums that defendants should be ordered or adjudged to pay as damages, profits, or cost of suit. In accordance with this agreement the Willsons assumed and carried on the defense of this suit. The circuit court rendered an interlocutory decree for complainants on February 7, 1893. 53 F. 84. On May 6, 1893, the Willsons filed a motion for defendants to reopen the case, for the purpose of introducing a prior patent to a third party, alleged to be precisely similar to complainants' patent, and a motion to dissolve the injunction. On May 13, 1893, on a stipulation by complainants and the nominal defendants consenting thereto, a final decree was entered for complainants for $2,500 as damages and profits and as costs of suit, and on May 15, 1893 complainants acknowledged satisfaction thereof. On June 23, 1893, the motions to reopen the case and to dissolve the injunction were heard and were denied. The Willsons filed a prayer for appeal and an assignment of errors on November 17, 1893. The appeal was allowed on February 5, 1894, and on the same day, the bond on appeal having been approved, a citation to complainants was issued, returnable March 1, 1894. The citation was served on February 21, 1894. On March 5, 1894, an order of the circuit court of appeals was made, enlarging the time for docketing the cause and filing the transcript of record to March 9, 1894. The order was filed on March 8, 1894, and the record was filed and the cause docketed in the circuit court of appeals on March 9, 1894. On March 20, 1894, complainants filed a motion to dismiss the appeal, as follows:

'Now come the appellees (complainants in the court below), and move to dismiss the appeal in the above-entitled case for the following reasons, to wit: (1) Because the record was not filed in this court on or before March 1st, the return day of the citation. (2) Because the orders of his honor, Judge Colt, extending the time for the filing of the record to March 7, 1894, at four o'clock p.m., and further extending such time to March 8, 1894, at 12 o'clock noon, were without authority of law, and are therefore void, because (a) the orders were entered after the return day of the citation, and the motion was made after the record should have been filed in the court above; (b) appellees' right to docket and dismiss under rule 16 of this court had attached, and could not be divested without a hearing; (c) said orders were entered without notice to parties or argument; (d) under the statute constituting this court (sec. 11), the rules and practice on appeal of the supreme court of the United States are made applicable, and the court has no authority to vary from such practice where it is established. (3) Because the parties moving for this appeal are not parties to the cause, and have no authority to appear herein. (4) Because the parties defendant, nominal appellants and necessary parties in this court, did not institute these proceedings, and are not joined in the appeal or in the appeal bond. (5) Because no petition has been presented, by the parties moving for this appeal, praying leave of court to intervene. (6) Because no petition or order of severance has been filed in the court below. (7) Because the assignment of errors filed in this cause is based upon a patent not set up in the answer. (8) Because this appeal is an attempt to appeal from the decision of the court below refusing a rehearing, the petition for rehearing having been based upon the same patent without amending the answer; and the rehearing, having been refused upon the merits and being a matter of discretion, is not subject to appeal. (9) Because, upon the final decree entered in the court below, appellants in this court (defendants in the court below) are estopped to appeal, inasmuch as the decree agreed upon by stipulation has been executed, and the damages assessed by agreement have been paid in full and such damages, having been paid under a decree, cannot be recovered. (10) Because the citation was not served the statutory time before the return day of the writ. (11) Because, by section 7 of the act creating the circuit courts of appeals, the interlocutory decree was appealable within thirty days of its entry, and a

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