Griswold v. Hilton

• Decision Date: 14 May 1898
• Parties: GRISWOLD v. HILTON.
• Court: U.S. District Court — Southern District of New York

87 F. 256

GRISWOLD v. HILTON.

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

May 14, 1898

W Laird Goldsborough, for complainant.

W. H Van Steenbergh, for defendant.

SHIPMAN Circuit Judge.

The complainant, J. Wool Griswold, brought in this court in the year 1895 a bill in equity against the Kilmer Manufacturing Company, a corporation of this state, which was founded upon the alleged infringement of the complainant's letters patent, and prayed for an injunction and an accounting. After the pleadings had been filed, and after the complainant had taken proofs in his prima facie case, which was substantially closed, the manufacturing company was dissolved by order of the supreme court of the state of New York dated June 25 1896, and the present defendant, Hilton, was appointed permanent receiver of its assets and property. The proceeding now before the court is a bill of revivor, which prays that the action may be revived, and that Hilton, as receiver, may be made a party defendant, and that the suit may proceed to a decree in accordance with the prayer of the original bill. The receiver denies that the complainant is entitled to, or that the court has power to grant, a revivor, and insists that the original suit was an action of tort, and cannot be revived.

The question whether a federal court of equity has power to grant a bill of revivor of a suit in equity against the representative of a defendant who died pending the original suit, and before decree, the original bill praying for an injunction against the infringement of letters patent and for an accounting, is not a new question in the federal courts. The opinion of Judge Shepley in Draper v. Hudson Holmes, 208, Fed.Cas.No. 4,069, was strongly adverse to the existence of such power, and subsequently the language of the supreme court in Root v. Railway Co., 105 U.S 189, was supposed to confirm this opinion. In the latter cases of Kirk v. Du Bois, 28 F. 460, and Head v. Porter, 70 F. 498, the subject was carefully considered by Judges McKenna and Colt, and a contrary opinion was reached, which was based upon the better reason, and Judge McKenna's decision was followed in Hohorst v. Howard, 37 F. 97. In Root v. Railway Co., supra, the court held that a federal court was without jurisdiction of a bill in equity which was brought after the expiration of infringed letters patent for an invention, and merely prayed for an accounting of the profits of the infringement, and could not properly ask for an injunction, or for other equitable relief. The ground of the decision was that in that class of cases a decree for an accounting was incidental to the equitable right to an injunction, and that it appeared from the case as made by the bill that no ground of equitable jurisdiction existed. The court did not intend to decide that, where the...