Greene v. United Shoe Machinery Co.

• Decision Date: 10 March 1903
• Docket Number: 438.
• Citation: Greene v. United Shoe Machinery Co., 124 F. 961 (1st Cir. 1903)
• Parties: GREENE et al. v. UNITED SHOE MACHINERY CO.
• Court: U.S. Court of Appeals — First Circuit

124 F. 961

GREENE et al. v. UNITED SHOE MACHINERY CO.

No. 438.

United States Court of Appeals, First Circuit.

March 10, 1903

Charles H. Drew, for appellants.

James E. Maynadier (George A. Rockwell, on the brief), for appellee.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

Before PUTNAM, Circuit Judge, and ALDRICH and BROWN, District Judges.

PUTNAM Circuit Judge.

This appeal comes up from a decree in favor of the complainant below against the defendants, now the appellants, on a bill alleging infringement of certain letters patent issued for an alleged invention. The case was heard in the Circuit Court on bill, answer, and proofs, with a decree thereon for a master and an injunction. Thereupon, in accordance with the settled practice in this circuit, an appeal was taken to us as from an interlocutory injunction under section 7 of the act of March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp. St. 1901, p 550), establishing the Circuit Courts of Appeals. The time for taking a new appeal from the interlocutory decree has long since expired, so that no further appeal will lie unless, on proper proceedings, the decree appealed from can be and is reopened.

Since the appeal was entered in this court, the appellants have filed certain affidavits which they claim show important new matter, and which, as they further claim, if submitted to the Circuit Court, would justify that court in reopening the decree appealed from. As we view the present situation of the proceedings, it is not necessary that we should open these affidavits, except only far enough-- as we have done-- to satisfy ourselves that the appellants proceeded in good faith in filing them and in the applications which they have made to us in connection therewith.

Having filed these affidavits, the appellants first asked us to remand the cause to the Circuit Court, with leave to be given that court to reopen the record and permit the parties to proceed further as set out in the application. An application to remand, with leave to further proceedings in the court below, cannot ordinarily be made with reference to a final decree, because, ordinarily, an appellate tribunal cannot interfere with proceedings below without first reversing or modifying the decree. This is a self-evident proposition stated many times by the Supreme Court. That court has steadily pursued this practice from The Divina Pastora, 4 Wheat. 52, 65, 4 L.Ed. 512, to Murdock v. Ward, 178 U.S. 139, 149, 20 Sup.Ct. 775, 44 L.Ed. 1009. Ballard v. Searls, 130 U.S. 50, 56, 9 Sup.Ct. 418, 32 L.Ed. 846, was not an exception, because there the new matter strictly supplemented the decree below.

On an interlocutory decree, however, like that now before us, the Circuit Court has the case in its own breast, and on the dismissal of an appeal without prejudice can reopen any interlocutory proceedings if justice requires it. There may be some special exceptions to this general rule, although none now occurs to us. Notwithstanding this, however, the rule with reference to final decrees so far applies that we cannot ourselves interfere with further proceedings below without first reopening the interlocutory decree, either by a reversal or a modification of it. To remand without reversing or modifying is merely to dismiss the appeal.

It therefore follows that the original application could not be granted in the terms in which it was expressed. Subsequently the appellants twice amended their petition; the first time asking for a continuance in order to make, meanwhile, an application to the Circuit Court, and, next, to the effect that the decree below be reversed, and the cause remanded to the Circuit Court, in order that the court might reopen it, and permit the parties to proceed further. But to reverse even this interlocutory decree would be a serious matter, because thereby the complainant would lose its injunction pending a rehearing in the Circuit Court and another decree. Even in the ordinary case of an application to the appellate tribunal, after a decree, for leave to apply to the court below for supplemental proceedings, investigation is required, as was fully explained by us in Re Gamewell Company, 73 F. 908, 20 C.C.A. 111, and as practically applied with very much care and scrutiny in Boston & Revere Electric Street Railway Company v. Bemis Car-Box Company, 98 F. 121, 38 C.C.A. 661. Therefore, as a reversal means so much, any motion therefor, though only for the purpose of further proceedings in the court below, might involve such an examination of the merits as to require postponement of its consideration until the record is opened on the merits; but a proper application in this case would require no such labor.

The appellee remonstrates against the applications made by the appellants, but closes its brief as follows:

'Appellee, therefore, respectfully insists upon a hearing when the cause is reached in its order, unless the appeal before that day shall be dismissed on request of appellants. This was the course in Marden v. Campbell Co., 67 F. 809, 15 C.C.A. 26, and seems the proper practice.'

We think this reference in every way pertinent. We have examined the record in Marden v. Campbell Co., and find the case in all respects like that at bar. There was an interlocutory decree for an injunction and a master, which had been appealed from. In fact, both parties appealed, but the cross-appeal we need not refer to. After the appeal was entered in this court, and the time within which a new appeal could be taken had expired, the defendants below filed precisely the same motion as was the present application in its original form, and they accompanied it with affidavits of new matter, as now the appellants have done. The appellee objected to the motion on the ground that it was merely hanging up the case, 'like Mahomet's coffin,' between the two courts. In our opinion we observed-- what has already been stated-- that this court 'has no power to remand except for the purpose of giving effect to some judgment of its own. ' We further added as follows:

'It is, however, entirely plain that the appeal given by the seventh section of the act referred to is a privilege or option, and in no way affects or diminishes the right to appeal from the final decree; and as the defendants below, on receiving from this court an oral intimation of the views above expressed, elect to dismiss their appeal without prejudice to their right to take any other appeal which the law may give them, and without prejudice to the questions which may thus be raised, we permit them so to do.'

The order in that case was as follows:

'It is ordered that the appeal of the defendants below be dismissed without prejudice to any proceedings in the Circuit Court, or to their right to take any subsequent appeal, and without prejudice to the questions which may be raised by such subsequent appeal, if lawfully taken, but with costs for the complainant below.'

In Seymour v. White County, 92 F. 115, 34 C.C.A. 240, it was held by the Circuit Court of Appeals for the Seventh Circuit that, even on petition for leave to commence in the lower court supplemental proceedings after a final decree on appeal, leave should be granted as a matter of course, unless there were special reasons to the contrary. As already shown with reference to proceedings of that character, we have refused to go to that extent; but in Marden v. Campbell Co ubi supra, it appearing to us that the appellees were acting in good faith, and there being no special cause to the contrary we gave them the proper relief, notwithstanding the form of...