Carnegie Steel Co. v. Colorado Fuel & Iron Co.

• Decision Date: 16 July 1926
• Docket Number: No. 7231.,7231.
• Parties: CARNEGIE STEEL CO. v. COLORADO FUEL & IRON CO.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 1 (1926)

CARNEGIE STEEL CO. v. COLORADO FUEL & IRON CO.^*

No. 7231.

Circuit Court of Appeals, Eighth Circuit.

July 16, 1926.

George W. Morgan, of St. Paul, Minn., and Henry M. Huxley, of Chicago, Ill. (Gustave C. Bartels, of Denver, Colo., and D. Anthony Usina, of New York City, on the brief), for appellant.

Fred Farrar, of Denver, Colo. (Wendell Stephens, of Denver, Colo., on the brief), for appellee.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and CANT, District Judge.

KENYON, Circuit Judge.

This is an appeal from an order of the United States District Court of Colorado, entered on July 14, 1925, dismissing appellant's bill of complaint. The dismissal was in pursuance of a general order of said court entered January 19, 1925, to the effect that all causes at law and suits in equity, in which no order of progress had been made and entered of record within one year last past, should be dismissed for failure to prosecute, unless upon cause shown in writing to the contrary before the first day of the April term, 1925, the court should otherwise order. The action dismissed was one brought by appellant in the United States Circuit Court for the District of Colorado at Pueblo March 12, 1906, seeking relief both by injunction and damages for the alleged infringement by appellee of a certain patented process for the manufacture of steel from molten pig iron. A rather detailed statement of the facts is necessary for a clear understanding of this case. A demurrer was filed to the original complaint, and complainant (appellant here) sought to amend its bill. This was denied. The case was appealed to this court and was reversed and remanded. The issues were then settled. August 24, 1909, an order was made pursuant to stipulation fixing the time within which testimony should be taken by the parties. The stipulation provided that complainant might take orally on the 16th day of August, 1909, such of its testimony in chief and in support of its bill as it might desire, and should include its oral testimony at one session, that the defendant should have 120 days after complainant concluded its testimony in chief in which to take its testimony in defense, and that complainant should have 120 days after defendant closed its testimony in defense in which to take its testimony in reply. Both the stipulation and the order of the court were filed April 4, 1914, or nearly 5 years after the testimony was taken. Appellant, in accordance with the stipulation, took the depositions of two witnesses at Chicago on August 16 and 17, 1909. These depositions were not opened and filed until February 23, 1916, more than six years after they were taken, and in these depositions appears this statement by Mr. Herrington (then counsel for this appellee), which seems to be in the nature of a stipulation:

"Mr. Herrington: Complainant's counsel has some formal proofs to offer concerning the corporate existence of the complainant, as well as the chain of title to the Jones patent, which he claims finally vests in the complainant company, together with copies of the patent in suit and of the disclaimer affecting the same. His proofs will not be considered closed until he makes formal proof of those facts, and it is agreed that complainant's counsel may submit his proofs to defendant's counsel, and, if no objection is made to copies of instruments showing these titles, then the copies may be used in evidence in lieu of the originals. Until defendant's counsel receives a notification by letter that complainant has made his prima facie case, the case shall remain open so far as the complainant's prima facie case is concerned."

May 9, 1914, a stipulation was entered into as follows:

"It is hereby stipulated by consent of counsel that the trial of the above-entitled case and the further taking of testimony therein shall be continued over the April term of said court sitting at Pueblo, Colo., to be taken up at such time as shall meet the convenience of counsel.

"Linthicum, Belt and Fuller "C. C. Linthicum "Solicitors for Complainant. "Fred Herrington "Solicitor for Defendant."

January 20, 1925, the District Court entered the following order:

"In the Matter of Certain Obsolete Causes Which are to be Dismissed.

"At this day it is ordered that all causes at law, and suits in equity, in which no order of progress has been made and entered of record within one year last past, shall be dismissed for failure to prosecute, unless upon cause shown, in writing, to the contrary, before the first day of the April term, 1925, the court shall otherwise order."

Affidavits were filed by counsel on both sides, those on the part of appellant attempting to explain the delay in the proceedings and showing that there had been some correspondence between the parties with reference to settlement. Some of the counsel on both sides had died during the delay, and others had been substituted therefor. From the affidavits it appears that, between the dates when the depositions were taken and the dates upon which they were filed, the firm of Bakewell & Byrnes withdrew their appearance, and Linthicum, Belt & Fuller and C. C. Linthicum entered their appearance for the complainant (they represented complainant at the time the stipulation of May 9, 1914, was entered into), that the taking of the depositions in 1909 at Chicago did not complete appellant's case, there being certain formal proofs necessary before the prima facie case could be completed, and that the present counsel in the case had definite knowledge of the same in 1916, or at least in the early part of 1917. Appellant never completed proof in its case as far as the record shows. After May 9, 1914, when the stipulation was entered into, and up to the time of Judge Symes entering the order in question, there seems little, if anything, to have been done. There evidently was a letter from Mr. Herrington who represented present appellee, to Mr. Linthicum, counsel for complainant, in December, 1916, with reference to some negotiations for a settlement. That was eight years before Judge Symes entered the order. It may also be noted that on May 20, 1916, Mr. Linthicum wrote Mr. Herrington that he did not want the case to be dismissed or lose its place on the docket. Mr. Linthicum died December 16, 1916, and in January, 1917, Mr. Herrington had some conversation with Mr. Huxley, one of the present counsel of appellant, concerning the matter, and Mr. Huxley wrote to Mr. Usina, general patent attorney for the complainant, in New York. This seems to be all that was done. Many counsel have appeared at various times in the proceedings. Naturally, on account of the long period of time which has elapsed, death has claimed some of them.

After the order of January 19, 1925, request was made of the clerk of the District Court by counsel for appellant to place the case upon the trial calendar.

Judge Symes considered the affidavits, and on the 13th or 14th day of July, 1925, entered a decree dismissing the cause for failure to prosecute under the rule of the court which he had promulgated January 19, 1925 (hereinbefore referred to), having prior thereto delivered the following opinion:

"Carnegie Steel Company, a Corporation, Plaintiff, v. Colorado Fuel & Iron Company, a Corporation, Defendant. No. 348-Pueblo. In Equity.

"This action has been pending in this court for a great many years without any progress being made, due to no fault of the court. The plaintiff in opposing its dismissal under the rule puts the burden for delay upon the defendant, although defendant is on what is called the `slow side.' Counsel on both sides have changed, but the affidavits disclose that the case came to the notice of the present counsel for plaintiff in 1917, since which time he has taken no action.

"Irrespective of where the blame should be placed as between the parties, the parties are reminded that this and other federal courts have been admonished by the Chief Justice of the United States to strictly enforce the rule in question, and litigants can no longer, by agreement, or otherwise, avoid this rule. The court has been at all times open to either side desiring a prompt trial, irrespective of the wishes of its opponent.

"The case will be dismissed.

"J. Foster Symes, District Judge.

"June 19, 1925."

Under these facts appellant contends that the court had no authority to dismiss the case and that the court's procedure was in violation of equity rules 56 and 57. These rules are as follows:

"56. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken...