Edwin Raphael Company v. Maharam Fabrics Corp.
| Decision Date | 01 November 1960 |
| Docket Number | No. 13041.,13041. |
| Citation | 283 F.2d 310 |
| Parties | EDWIN RAPHAEL COMPANY, Inc., Plaintiff-Appellant, v. MAHARAM FABRICS CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Curtis F. Prangley, Mark H. Clayton, Chicago, Ill., for appellant.
Milton K. Joseph, Chicago, Ill., Byron G. Toben, Chicago, Ill., of counsel, for appellee.
Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.
In this suit, based upon diversity of citizenship, plaintiff sought to enjoin defendant from unfairly competing with plaintiff by selling certain drapery material which plaintiff claims contained plaintiff's unique, original and distinctive patterns. Plaintiff also sought damages.
Defendant, Maharam Fabrics Corporation, is a New York Corporation. Joseph Maharam of New York is the president and Samuel D. Maharam of New York is vice president. The plaintiff is an Illinois corporation. Also involved in this suit is another Illinois corporation. Its corporate name is Maharam Fabrics Corporation of Illinois. Joseph Maharam of New York is also the president of this corporation, and Samuel D. Maharam of New York is the secretary. In conducting its business, this corporation customarily does not use the words "of Illinois", the last two words of its corporate name. The result is that the name usually used by the Illinois corporation is identical with the corporate name of the New York corporation. The Illinois corporation will hereinafter be referred to as Maharam (Illinois).
Two summonses were issued, the first on June 15, 1959 and the second on July 23, 1959. Service of the first summons was made on June 17, 1959, by delivery of a copy to Miss Jean Wieck at 420 North Orleans Street, Chicago. At this address were located the principal offices of Maharam (Illinois) corporation. Pursuant to an order of the Court, the second summons was served in New York on July 30, 1959, by leaving a copy with Mr. Sam Gorman who was an officer of the New York corporation. Defendant did not appear within twenty days of the service of the first summons, and on July 29, 1959, on motion of the plaintiff, without notice, the District Court declared the defendant to be in default and on said date a judgment by default was entered.
Defendant filed a motion to quash service of summons which had been issued on July 23, 1959, and to dismiss the action for improper venue. Defendant also moved to vacate the order of default entered July 29, 1959, and to quash the service of summons issued July 15, 1959. An affidavit of attorney Shulman was filed to show that as defendant's attorney, he failed to answer or plead within twenty days after the service of the first summons, under circumstances that amounted to excusable neglect.
The trial court found the default arose due to a misunderstanding of counsel, and was the result of excusable neglect and should be set aside under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S. C.A. An order was entered vacating the order of default, and quashing the service of summonses issued on June 15, 1959 and July 23, 1959, respectively. The instant appeal is from that order.
Defendant argues the order appealed from is not an appealable order. However, it is well established that an order granting a motion to quash service is appealable. Wisconsin Mutual Insurance Co. v. Western Mutual Fire Insurance Company, 7 Cir., 107 F.2d 402; Rosenberg Bros. & Company v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372.
It is true, an order vacating a default judgment is interlocutory in character. However, it may be reviewed in an appeal from a final judgment in the same case, since it is merged in the final judgment. Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629. We do not regard the point as of controlling importance in the instant case as it is clear from the record that the finding of the court of excusable neglect is based upon substantial evidence, and under no circumstances could such...
To continue reading
Request your trial
-
Green v. Robertshaw-Fulton Controls Company
...cited in Orton v. Woods Oil & Gas Co., 249 F.2d 198 (7th Cir. 1957), (discussing Illinois law). See also Edwin Raphael Co. v. Maharam Fabrics Corp., 283 F. 2d 310 (7th Cir. 1960); Insull v. New York, World-Telegram Corp., 273 F.2d 166 (7th Cir. 1959); 362 U.S. 942, 80 S.Ct. 807, 4 L.Ed.2d 7......
-
Cashman v. City of Cotati
...Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258-59, 36 S.Ct. 269, 60 L.Ed. 629 (1916); see also Edwin Raphael Co. v. Maharam Fabrics Corp., 283 F.2d 310, 310 (7th Cir.1960) ("[A]n order vacating a default judgment is interlocutory in character. However, it may be reviewed in an appeal from ......
-
Unijax, Inc. v. Factory Ins. Ass'n
...L.Ed. 1047 (1933); Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925); Edwin Raphael Co. v. Maharam Fabric Corp., 283 F.2d 310 (7th Cir. 1960); Berkman v. Ann Lewis Shops, 246 F.2d 44 (2nd Cir. 1957); Harris v. Deere & Co., 223 F.2d 161 (4th Cir. Consiste......
-
Morgan Guaranty Trust Company of New York v. Martin
...Cf. Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 258, 36 S.Ct. 269, 60 L.Ed. 629; Edwin Raphael Co. v. Maharam Fabrics Corp., 283 F.2d 310, 311 (7th Cir. 1960). Cf. also Smith v. Illinois Bell Tel. Co., 270 U.S. 587, 588-589, 46 S.Ct. 408, 70 L.Ed. 747; Taylor v. Washington......