Fischer v. Hayes

• Decision Date: 26 January 1881
• Citation: 6 F. 63
• Parties: FISCHER v. HAYES.
• Court: U.S. District Court — Southern District of New York

6 F. 63

FISCHER v. HAYES.

United States Circuit Court, S.D. New York.

January 26, 1881

Charles F. Blake, for plaintiff.

James H. Whitelegge, for defendant.

BLATCHFORD C.J.

This suit is brought for the infringement of letters patent No 74,068, granted to the plaintiff February 4, 1868, for an 'improvement in machine for forming sheet-metal mouldings. ' The patent was before this court in Fisher v. Wilson, 16 Blatchf. 220, and was sustained in April, 1879. This suit was brought in May, 1879. On a motion made on due notice to the defendant, this court, on the fourteenth of June, 1879, issued a preliminary injunction, restraining the defendant from making, using, or selling any machine embodying the inventions described and claimed in the second and fourth claims of the patent. This injunction was served on the defendant on the same day. Afterwards a motion founded on affidavits sworn to July 18 1879, was made before the court for an attachment against the defendant for contempt for violating said injunction. The affidavits were those of Erickson, Conolly, and Abbott, and went to show a violation of the injunction by the defendant after its service on him in the use, in making sky-light bars, of improvements covered by second and fourth claims of the patent. The sky-light bars were made of sheet metal, and were formed and bent on a machine. The affidavits set forth the particulars of the alleged contempt charged, and were filed in court, and copies of them were served on the defendant on the twenty-eighth of July, 1879. The defendant opposed the motion on affidavits, and the court made an order on the first of August, 1879, requiring the defendant to permit an inspection on the part of the plaintiff of his machinery for bending sheet metal, and of the method of bending such sheet metal used by him. The order said: 'It being the object and intention of this court to enable the complainant herein to present such evidence to the court herein as will enable the complainant to make out, if the fact be so, the infringement of the patent here in suit, and a contempt of the injunction heretofore issued and served herein; 'and referred it to Mr. Shields to ascertain the fact of said infringement,' if the same be so,' and report his finding to the court, and ordered 'that the complainant may examine before the said referee, George Hayes and all his employes and assistants, and that both parties may examine such other witnesses as they may elect to examine. ' The reference before Mr. Shields commenced on the twenty-ninth of August, 1879, Witnesses for both parties were examined before the referee. The defendant was examined on the part of the plaintiff, and took no objection to the propriety or lawfulness of his being examined. He was also examined as a witness on his own behalf. The report of Mr. Shields was filed January 8, 1880. This court had, on the thirtieth of June, 1879, on motion and due notice, made an order adjudging the defendant guilty of contempt by using a machine for bending sheet metal in violation of said injunction. The proceedings covered by the motion which resulted in the order of August 1, 1879, related to a violation after June 30 1879, and the testimony before Mr. Shields and his report related to such a violation. Mr. Shields, in his report, found that the defendant had, since the order of June 30, 1879, infringed the fourth claim of the patent, and stated in detail wherein such infringement consisted. The defendant filed exceptions to the findings in the report. On all the proceedings in the case, and the testimony taken before Mr. Shields and his report, the plaintiff moved before this court, on due notice, 'for an order for attachment for contempt and punishment herein, notice of motion for which has been heretofore served on you, and which motion has been partially heard, and was referred to John A. Shields, Esq., referee, on the first day of August, 1879. ' On the hearing thereon the court, on the seventh of February, 1880, made an order as follows, entitled in this cause: 'A motion for attachment for contempt having come on to be heard herein, and the matter having been referred to John A. Shields, Esq., to take the testimony of and to hear the parties, and to report to the court on the question of infringement, and the said referee having reported that the defendant has used the invention described in the letters patent on which this suit is brought in violation of the injunction of the court herein since about the second day of July, 1879, and the said referee's report having been presented to this court for confirmation, and Mr. Blake having been heard for complainant, and Mr. Whitelegge for defendant, now, therefore, it is hereby ordered, adjudged, and decreed that the said report be and it hereby is confirmed. * * * And it is further ordered, that the further hearing of this motion on the question of punishment and terms go over until Friday, February 13, 1880, at the opening of court on that day. ' On the seventeenth of February, 1880, this court made an order as follows, entitled in this cause: 'A motion for attachment for contempt herein having come on for further hearing on the question of punishment or terms on this thirteenth day of February, 1880, and Charles F. Blake, Esq., having been heard for the motion, and J. H. Whitelegge, Esq., opposed, now, therefore, it is hereby ordered and decreed, that the defendant is adjudged to have committed the contempt alleged, and that he pay, as a fine therefor, the amount of all costs, charges, and disbursements whatsoever suffered, borne, or incurred by the complainant by reason of, or on account of, the said motion, and that the question of the amount of said fine be submitted to this court on affidavits, and without argument, as follows: The complainant to serve his affidavits on the solicitor for the defendant on or before Friday, February 20, 1880; that defendant serve his replying affidavits on counsel for complainant on or before Tuesday, February 24, 1880, and that complainant have the right to reply; and that all affidavits be filed on or before Friday, February 27, 1880. ' The plaintiff presented to the court two affidavits on his part, copies of which had been served on the defendant's solicitor on the twentieth of February, 1880. The defendant replied to those affidavits by an affidavit of his own, a copy of which he served on the plaintiff's solicitor on the twenty-seventh of February, 1880. Thereupon this court, on the thirteenth of March, 1880, made an order, entitled in this cause, 'on motion for second attachment for contempt,' and reading as follows: 'This motion, having been heard on the first day of August, 1879, on affidavits and argument by counsel for the respective parties, and thereupon an order having been duly made that it be referred to John A. Shields to ascertain the fact of said infringement, if the same be so, and report his finding to this court, and upon the coming in of the report of said referee, and hearing counsel for the respective parties in support thereof and in opposition thereto, said report was confirmed; and it was then further ordered that the complainant file with the court, and serve copies on defendant, affidavits showing the expenses incurred in the prosecution of this second attachment for contempt; that defendant file and serve answering affidavits, and that complainant may reply thereto; and an amended order, and the affidavit of George Hayes, the defendant, executed on the twenty-sixth day of February, 1880, having been filed in reply to said complainant's affidavits, it is, upon consideration thereof, ordered that the defendant pay into court the sum of $522.49, as set forth in the affidavit of Baron Higham, executed herein on the sixteenth day of February, 1880, and the further sum of $867.50, as set forth in the affidavit of Valentine Fischer, executed herein on the twentieth day of February, 1880, amounting altogether to the sum of $1,389.99, as a fine for said second contempt, within 30 days from the date of the entry of this order, to-wit, the twelfth day of April, 1880, and that, if not paid, the defendant stand committed till it be paid, and that, when paid, it be paid over to the plaintiff in re-imbursement.

' On the eleventh of May, 1880, the defendant sued out a writ of error from the supreme court of the United States to reverse the said judgment convicting him of a contempt. The plaintiff moved in that court to dismiss said writ of error, and the supreme court dismissed it for want of jurisdiction on the twenty-ninth of November, 1880. The plaintiff now, on presenting to this court the mandate of the supreme court dismissing said writ, moves for an order that the said order of March 13, 1880, be carried into effect; and the defendant at the same time moves that the said order of February 17, 1880, and the said order of March 13, 1880, be declared inoperative and void, and of no effect, or that the plaintiff be perpetually restrained and enjoined from any further action or proceeding respecting the same.

It is provided by section 725 of the Revised Statutes that the courts of the United States shall have power to punish 'by fine or imprisonment, at the discretion of the court, contempts of their authority: provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts...