Dudley E. Jones Co. v. Munger Improved Cotton Mach. Mfg. Co.

• Decision Date: 30 May 1892
• Docket Number: 6.
• Citation: 50 F. 785
• Parties: DUDLEY E. JONES CO. et al. v. MUNGER IMPROVED COTTON MACH. MANUF'G CO.
• Court: U.S. Court of Appeals — Fifth Circuit

50 F. 785

DUDLEY E. JONES CO. et al. v. MUNGER IMPROVED COTTON MACH. MANUF'G CO.

No. 6.

United States Court of Appeals, Fifth Circuit.

May 30, 1892

Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.

PARDEE Circuit Judge.

This cause is again brought before the court on an application for a rehearing and upon a motion to vacate all proceedings had in this cause in this court, and dismiss the appeal herein for want of jurisdiction, on the ground that the decree of the court below sought to be reviewed in this case was neither a final decree, from which an appeal would lie to this court under the sixth section of the judiciary act of 1891, nor yet such an interlocutory order or decree that an appeal would lie under the seventh section of the said act. The case was heard in this court upon the merits without objection on the part of the appellee, and without a critical examination on the part of the court as to the character of the decree appealed from. In fact, appellee in his brief expressly states:

'It is the desire of the appellee that this cause be heard upon its merits and we do not, therefore, wish to take advantage of any irregularities which may have occurred in bringing the case up, or of any omission to assign errors. * * * At the case stands, it must be substantially treated as a rehearing at the circuit, and for this reason the argument is more diffusive than it otherwise would be, as it involves a re-presentation of the entire case, without any direction as to special points or findings by the court below.'

An examination of the decree rendered by the court below shows that, while it adjudges the validity of the patent sued on and directs an injunction termed 'perpetual' against the defendants as infringers, it refers the matter to a master for taking an account. It is well settled that such a decree is not a final decree from which an appeal could be taken, or of which this court would have jurisdiction, under the sixth section of the judiciary act of 1891. Iron Co v. Martin, 132 U.S. 91, 10 S.Ct. 32, and cases there cited. We are, however, of the opinion that it is an interlocutory decree granting an injunction, from which an appeal would lie under the seventh section of the state judiciary act.

An interlocutory decree is:

'When the consideration of the particular question to be determined, or the further consideration of the cause generally, is reserved till a future hearing. ' Daniell, Ch. Pr. (5th Ed.) 986.

Again:

'In fact, till a decree has been enrolled, and thereby become a record, it is liable to be altered by the court itself, upon a rehearing, while a decree which has been enrolled is not susceptible to alteration, except by the house of lords or by bill of review. For this reason it is that a decree which has not been enrolled, although it is, in its nature, a final decree, is considered merely as

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