Deppe v. General Motors Corporation, 6451.

• Decision Date: 12 August 1938
• Docket Number: No. 6451.,6451.
• Parties: DEPPE v. GENERAL MOTORS CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

98 F.2d 813 (1938)

DEPPE v. GENERAL MOTORS CORPORATION.

No. 6451.

Circuit Court of Appeals, Third Circuit.

August 12, 1938.

Wm. P. Deppe in pro. per.

No appearance for appellee.

Before DAVIS and THOMPSON, Circuit Judges, and DICKINSON, District Judge.

PER CURIAM.

This is an appeal from a decree of the District Court denying the plaintiff's petition and motion to enforce a decree entered by the District Court on December 3, 1926.

The history of this case is as follows:

On September 18, 1924, the plaintiff brought suit in the District Court against the defendant for infringement of patents No. 1,335,665 and No. 1,360,098. The District Court filed an opinion on October 20, 1926 (15 F.2d 419) adjudging certain claims of the patents to be valid and infringed, and on December 3, 1926 issued an interlocutory decree in accordance with its opinion. The defendant appealed from that decree to this court. Holding that the claims in issue of the patents had not been infringed, we filed an opinion (21 F.2d 44) reversing the decree of the District Court, and on June 7, 1927, issued our mandate accordingly. This mandate was filed in the District Court on August 31, 1927.

The plaintiff filed a petition in the Supreme Court for a writ of certiorari, but this was denied on January 3, 1928. 275 U. S. 572, 48 S.Ct. 204, 72 L.Ed. 433. In accordance with the mandate of this court, the plaintiff paid the costs of the litigation, and on January 12, 1929, filed in the District Court a satisfaction of judgment signed by counsel for the defendant. The plaintiff petitioned this court for a rehearing which was denied on November 2, 1931. 52 F.2d 726.

After waiting four years and four months without taking any action, plaintiff on February 28, 1936, filed a rather vague petition in the District Court requesting it to hold in abeyance the execution of its original decree of December 3, 1926, until he could secure appropriate action by the Supreme Court for which he had filed a brief the day before. On April 24, 1936, he filed a motion requesting the District Court to execute that decree which he claimed was still in "full force and effect", because of the defendant's failure to take what he described in his petition as the "required legal steps to put into execution the mandate, orders and decree of the Third Circuit Court of June 7, 1927". The District Court did not comply with his request, but on September 10, 1936, filed a memorandum opinion denying the relief sought, and on April 15, 1937, it denied his petition for reconsideration.

Believing himself to have been aggrieved by these rulings, the plaintiff appealed to this court.

In his appeal, the plaintiff seeks to reopen all of the issues settled by this court in 1927. If we were to concede, which we do not, for the sake of argument that the appellant had some right to have the mandate modified in 1927, he has lost that right through laches. Ordinarily a motion to recall and modify a mandate can not be granted after the term in which it was issued has expired, or after the expiration of a further period allowed by rules of the court for rehearing. Hawkins v....