Facer Forged Steel Car Wheel & Locomotive Wheel Co. v. Carnegie Steel Co.
| Decision Date | 27 December 1923 |
| Docket Number | 3042. |
| Citation | 295 F. 134 |
| Parties | FACER FORGED STEEL CAR WHEEL & LOCOMOTIVE WHEEL CO. v. CARNEGIE STEEL CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Rehearing Denied February 8, 1924.
Owen J Roberts, of Philadelphia, Pa., for appellant.
D Anthony Usina, of New York City, for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This appeal is from a decree of the District Court dismissing the plaintiff's bill for delay in prosecution. The question whether the court had equitable jurisdiction, in view of the fact that the bill, praying for an injunction, was filed only twenty-five days before the expiration of the patent, was one primarily for the trial court. As the trial court did not decide it, we shall not consider it. Therefore the only question here for review is whether the trial judge abused his discretion in dismissing the bill.
This case was brought in 1912-- more than ten years ago. In the beginning the moves made in its prosecution were feeble. This is indicated by the character of the pleadings. First, the defendant demurred to the bill on the ground that the action was not cognizable in equity because the patent expired so shortly after the filing of the bill that relief by preliminary injunction could not be obtained. Then the plaintiff moved to dismiss the demurrer because the new equity rules, then recently promulgated, abolished that pleading. What was done with the motion does not appear. In any event, the defendant later filed a motion to dismiss the bill in lieu of its demurrer. Then followed a motion by the plaintiff to dismiss the defendant's motion to dismiss the bill on the ground that the latter pleading was superfluous in view of a ruling by the court that it would regard the demurrer as a motion to dismiss. This was in 1913. In this situation the case stood until August, 1922, when the plaintiff, by rule to show cause, pressed for the discharge of the defendant's motion to dismiss the bill. The defendant replied by a motion to dismiss the bill for delay in prosecution. Outside these meager record entries it appears that in the first year of the case delays occurred through many causes-- negotiations for settlement convenience of counsel, death of counsel, the plaintiff's lack of money. But these delays, negative though they were, subsided for several years into complete inactivity until, in November, 1918, the plaintiff discussed the matter of trial with counsel for the defendant and obtained from him a letter wherein he...
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DO Haynes & Co. v. DRUGGISTS'CIRCULAR
...the force of rule 57, and a delay of 15 years resulted in a dismissal of the bill. See, also, Facer Forged Steel Car Wheel, etc., Co. v. Carnegie Steel Co. (C. C. A.) 295 F. 134. At bar, no excuse is given for this long delay in proceeding with the hearing before the master. It is just such......
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...of the case. We find no such abuse. The following language of the court, in the case of Facer Forged Steel Car Wheel & Locomotive Wheel Co. v. Carnegie Steel Co., 3 Cir., 295 F. 134, 135, is appropriate; "This recital of the pleadings is given not for the purpose of assessing the fault of t......
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Carnegie Nat. Bank v. City of Wolf Point
...Co., 2 Cir., 19 F.2d 288, 289; Carnegie Steel Co. v. Colorado Fuel & Iron Co., 8 Cir., 14 F.2d 1, 4; Facer Forged Steel C. W. & L. W. Co. v. Carnegie Steel Co., 3 Cir., 295 F. 134, 135. Orderly disposition of the appeal requires that we outline, as briefly as possible, the events leading up......
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Peardon v. Chapman
...L.Ed. 577. Even so, the terms of dismissal have always been within the discretion of the court. Facer Forged Steel Car Wheel & Locomotive Wheel Co. v. Carnegie Steel Co., 3 Cir., 295 F. 134, certiorari denied 265 U.S. 581, 44 S.Ct. 456, 68 L.Ed. 1190. This continues to be so under Rule 41. ......