F.A. Mfg. Co., Inc. v. Hayden & Clemons, 1499.

• Decision Date: 26 April 1921
• Docket Number: 1499.
• Citation: 273 F. 374
• Court: U.S. Court of Appeals — First Circuit
• Parties: F.A. MFG. CO., Inc., v. HAYDEN & CLEMONS, Inc.

273 F. 374

F.A. MFG. CO., Inc., v. HAYDEN & CLEMONS, Inc.

No. 1499.

United States Court of Appeals, First Circuit.

April 26, 1921

Rehearing Denied June 3, 1921.

On Petition for Rehearing.

William Quinby, of Boston, Mass., for appellant.

Odin Roberts and Roberts, Roberts & Cushman, all of Boston, Mass for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District judge.

BINGHAM Circuit Judge.

In a suit brought by the Brockton Heel Company, Incorporated against Hayden & Clemons, Incorporated, for infringement of letters patent No. 14,476, in the District Court for Massachusetts, a decree was entered for the defendant. After the decree was entered the F.A. Manufacturing Company Incorporated, purchased from the Brockton Company the patent, and took assignments of it and of 'all causes of action or claims for damages or profits arisen or accrued by reason of any infringement of said letters patent prior to the date of said assignments,' with a right 'to sue for and collect said damages and profits in the name of the Brockton Heel Company, Incorporated. ' Having thus obtained the right and title of the plaintiff in suit, the Manufacturing Company, within the statutory period (26 Stat.at Large, 829, Sec. 11), presented a petition for an appeal in the District Court, in which it alleged the purchase of the patent, an assignment of all causes of action or claims for damages or profits which had accrued, a right to sue and collect the same in the name of the Brockton Heel Company, Incorporated, and prayed that it be allowed to file and prosecute an appeal from the decree in the name of the Brockton Heel Company, Incorporated. The Manufacturing Company signed the petition by its vice president, who made oath to the truth of the facts therein alleged and that the copies of the assignments annexed to the petition were correct and exact copies of the original assignments. The judge sitting in the District Court allowed the petition as of the date of its filing. Assignments of error and an appeal bond were filed; the latter also being approved by the court.

After the case was docketed in this court the defendant, Hayden & Clemons, Incorporated, appeared specially and for the sole purpose of filing a motion to dismiss the appeal, assigning the following reasons: (1) That it appears, by admissions contained in the petition for appeal, that the plaintiff, Brockton Heel Company, Incorporated, by which the original bill of complaint was filed in the District Court of the United States for the District of Massachusetts (Equity No. 906), parted with its entire interest in the subject-matter of the suit after entry of the final decree therein, and as to the Brockton Heel Company, Incorporated, the suit abated; (2) that said Brockton Heel Company, Incorporated, has taken no appeal; (3) that the petitioner named in the petition for appeal, viz., the F.A. Manufacturing Company, Incorporated, is a stranger to the cause, and had, at the time the petition was filed, no standing as a party, and no right of appeal; (4) that there is no lawful appeal before this court; and (5) that the foregoing reasons appear of record.

The defendant by its motion in effect says that this court is without jurisdiction over the cause, for the reason that the facts disclosed by the record show that no appeal has been taken to this court by one entitled to prosecute an appeal from the decree of the District Court.

In Ex parte Cutting, 94 U.S. 14, 22 (24 L.Ed. 49), it is said that 'only parties, or those who represent them, can appeal;' and in Bayard v. Lombard, 9 How. 530, 551 (13 L.Ed. 245), that 'it is a well-settled maxim of the law that 'no person can bring a writ of error to reverse a judgment who is not a party or privy to the record.''

In Guion v. Liverpool, London & Globe Ins. Co., 109 U.S. 173, 3 Sup.Ct. 108, 27 L.Ed. 895, an appeal was dismissed for want of jurisdiction, the special reasons assigned being: (1) That the appellant was not a party to the suit in which the decree was entered, as his petition asking to be admitted as a party had been denied; and (2) that, if he were a party, he had not perfected his appeal by giving bond and security for costs.

In Ex parte Cockcroft, 104 U.S. 578, 26 L.Ed. 856, it was held that, inasmuch as the petitioner was not made a party to the suit, either by an express order of the court or by being treated as such, he could not prosecute an appeal.

In Fitzgerald v. Evans, 49 F. 426, 428, 1 C.C.A. 307, the appeal was dismissed, as the record before the court did not show that Fitzgerald had any interest in the subject-matter of the suit. It is there said that, if Fitzgerald had become interested in the proceeding by purchase or otherwise and desired to be heard in opposition to the allowance and payment of the claim appealed from, 'he should, by petition, have intervened in the cause, and have obtained recognition as a party in interest.'

In Elwell v. Fosdick, 134 U.S. 500, 513, 10 Sup.Ct. 598, 33 L.Ed. 998, the bank, the holder of $14,000 out of $955,000 of bonds secured by a mortgage, and whose petition to intervene and become a party to the suit had been denied, was permitted to appeal in the name of Elwell, the trustee named in the mortgage, from a decree which it was claimed affected its interests. It appeared from evidence dehors the record that at some time before the appeal was taken the trustee had executed a release of his right to appeal from the decree, and that the court below had found that there was no proof showing that the trustee had not acted in good faith in the prosecution of the suit. It was held that, inasmuch as the bank was not a party to the suit, 'its right to appeal depended entirely upon the action of the trustee,' and that, having been allowed to prosecute the appeal in the name of the trustee, the bank was 'bound by all the preceding acts of the trustee, done in good faith'; that 'on the facts of the case the appeal must be considered as the appeal of the trustee, and as barred by his release executed long before the appeal was granted.'

Bowden v. Johnson, 107 U.S. 251, 264, 2 Sup.Ct. 246, 27 L.Ed. 386, was a suit brought by Bowden, as receiver of a national bank, to charge the defendant with individual liability as a stockholder under section 12 of the Act of June 3, 1864 c. 106 (13 Stat. 99). In that case the court said:

'In June, 1878, Orson Adams was appointed receiver of the bank, in place of Bowden, the plaintiff. The decree of the Circuit Court was not made till January, 1879. The appeal to this court was taken in the name of Bowden; Adams not having been substituted as plaintiff. Adams became surety in the appeal bond, and thus treated the decree as valid and adopted the appeal. Adams now moves to be substituted as plaintiff and appellant in place of Bowden, without prejudice to the proceedings heretofore had. The appellees and their counsel first heard of the appointment of Adams from the papers served on the motion for substitution, and the appellees now move to dismiss the appeal, on the ground that none was ever lawfully taken. We think that the motion of Adams should be granted, and that of the appellees denied. Adams prosecuted the appeal in the name of Bowden, who was and is in life, and had a representative capacity. The power of amendment to this extent is authorized by section 954 of the Revised Statutes. It is of the same character as that exercised by this court in Gates v. Goodloe, where a writ

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