Christensen Engineering Co. v. Westinghouse Air Brake Co.

• Decision Date: 13 February 1904
• Docket Number: 64.
• Citation: 129 F. 96
• Parties: CHRISTENSEN ENGINEERING CO. v. WESTINGHOUSE AIR BRAKE CO.
• Court: U.S. Court of Appeals — Second Circuit

129 F. 96

CHRISTENSEN ENGINEERING CO. v. WESTINGHOUSE AIR BRAKE CO.

No. 64.

United States Court of Appeals, Second Circuit.

February 13, 1904

Wm. A Jenner, for plaintiff in error.

Frederic H. Betts, for defendant in error.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error to review an order of the court below adjudging the defendant in an equity suit brought to restrain the infringement of a patent guilty of contempt for violating an interlocutory injunction restraining such infringement.

This court has decided that such an order cannot be re-examined here, unless upon an appeal from a final decree in the cause. If it can be reviewed in the court in which it was made at the final hearing of the cause, it is not a 'final decision,' within the meaning of section 6 of the act conferring jurisdiction upon this court. We reviewed such an order in Gould v. Sessions, 67 F. 163, 14 C.C.A 366, but that case was decided before the decision of the Supreme Court in Re Debs, 158 U.S. 564, 573, 15 Sup.Ct. 900, 39 L.Ed. 1092. After the decision in Re Debs the question arose again in Nassau Electric R. Co. v Sprague Electric Co., 95 F. 415, 37 C.C.A. 146, and we dismissed the writ of error with this observation: Upon the authority of the Debs Case, we are constrained to hold that the order cannot be reviewed, except upon an appeal from the final decree in the cause. ' In Cary Manufacturing Company v. Acme Company, 108 F. 873, 48 C.C.A. 118, we reviewed on writ of error an order imposing a fine upon the defendant in an equity suit for the violation of an injunction. The injunction, however, was not interlocutory, but was granted by the final decree. This circumstance was not referred to in the opinion, but explains the apparent conflict between the decision and that in Nassau Electric R. Co. v. Sprague Electric Co. The order was final, in the sense that it was a judgment in a criminal case, which was independent of and separate from the original suit, and which could not be reviewed on an appeal from the final decree in that suit. Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391; New Orleans v. Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354. In Butler v. Fayerweather, 91 F. 458, 33 C.C.A. 625, 63 U.S.App. 120, the question whether an order like the present could be reviewed by this court was not involved. The order reviewed there was made in a cause to which the plaintiff in error was not a party, and committed him for his refusal to answer certain questions propounded to him as a witness; and the decision was placed upon the ground that in such a case the aggrieved party 'has no opportunity to be heard when the cause is before the court at final hearing, and as to him the proceeding is finally determined when the order is made.'

Whether the present order can be re-examined at the final hearing of the cause, at which time all previous interlocutory orders are...