In re Grove

• Decision Date: 14 July 1910
• Docket Number: 1,368.
• Parties: In re GROVE.
• Court: U.S. Court of Appeals — Third Circuit

180 F. 62

In re GROVE.

No. 1,368.

United States Court of Appeals, Third Circuit.

July 14, 1910

Clifton V. Edwards, for plaintiff in error.

Richard N. Dyer, for defendants in error.

Before BUFFINGTON and LANNING, Circuit Judges, and BRADFORD District judge.

LANNING Circuit Judge.

This case comes before us on a writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania. The matter sought to be reviewed is an order of the Circuit Court adjudging Henry S. Grove guilty of contempt of that court for having refused to produce before the examiner, in response to a subpoena duces tecum, issued in the patent infringement case of International Curtis Marine Turbine Company and Curtis Marine Turbine Company of the United States v. William Cramp & Sons Ship & Engine Building Company, certain documents called for in the subpoena. The penalty imposed by the court was a fine of $1 payable to the United States of America. The case is therefore one in which the fine was punitive and in vindication of the authority of the court, and not compensatory to the complainants in the principal cause. It follows that the order of the Circuit Court is reviewable on a writ of error. Bessette v. W. B Conkey Co., 194 U.S. 324, 24 Sup.Ct. 665, 48 L.Ed. 997; Id., 133 F. 165, 66 C.C.A. 291; Matter of Christensen Engineering Co., 194 U.S. 458, 24 Sup.Ct. 729, 48 L.Ed 1072. At the threshold of the case, however, we are confronted with an objection by the Curtis Companies defendants in error, hereinafter called the complainants, that the assignments of error rest on no bill of exceptions or other proceeding presenting for review any question of law. It is contended, therefore, that on this ground the writ of error should be dismissed.

The so-called record before us is a printed volume containing the bill of complaint in which the complainants charge that the defendant therein named, William Cramp & Sons Ship & Engine Building Company, is infringing certain of the complainants' patents, the answer of the defendant, the replication, notice of motion to punish Henry S. Grove, president of the defendant company, for contempt, the evidence taken in the principal cause up to the time of serving the notice, ex parte affidavits taken on behalf of the complainants for use on the hearing of the motion, ex parte affidavits taken on behalf of Grove for use on said hearing, the opinion of the Circuit Court, the order adjudging Grove in contempt, the petition for a writ of error, the assignments of error, the writ of error and the citation. There is no bill of exceptions, nor is there any statement signed by the judge who heard the matter certifying that the volume contains a true copy of the record of the cause heard by him. There is, however, a stipulation signed by counsel that the papers above mentioned 'shall constitute the record sur writ of error of Henry S. Grove' in the case, and there is a certificate of the clerk of the Circuit Court that the printed volume is a true and faithful copy of the original pleas and proceedings in the case as per the stipulation of the counsel.

A contempt case like the present one, where the fine imposed is payable to the United States, and where the party adjudged in contempt is not a party to the cause in which the contempt occurs, is in its nature a criminal and not a civil proceeding. The judgment is final. For these reasons it is reviewable on a writ of error. There is no reason for assuming that the practice in prosecuting a writ of error in such a case differs from the general practice in such prosecutions. Nothing but questions of law can be considered. These questions must be presented in the assignments of error, and each assignment of error must be founded on some alleged defect in the record of the case. The only authority for departing from this practice is contained in the eleventh rule of this court (following the thirty-fifth rule of the Supreme Court (11 S.Ct. iii)) which declares that the court, at its option, may notice a plain error not assigned. A writ of error addresses itself to any defect apparent on the face of the record provided the defect be pointed out in the assignment of errors, but the evidence taken in a cause is no part of the record unless, by some method known to the law, it be imported into the record. 'Evidence, whether written or oral, and whether given to the court or to the jury, does not become a part of the record unless made so by some regular proceeding at the time of the trial and before the rendition of judgment. Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law. A bill of exceptions undoubtedly is the safest method, as it is the most comprehensive one in its operation; and where the facts are disputed, and cannot be arranged except from evidence admitted under the ruling of the court as to its admissibility, oftentimes it becomes the only effectual mode by which all the rights of the complaining party can be preserved. On the other hand, where there is no dispute in regard to the facts, and consequently no necessity for any ruling of the court in admitting or rejecting evidence, the same purpose may be safely accomplished by a special verdict, or, according to the rule established in this court, by an agreed statement of facts. ' Suydam v. Williamson, 20 How. 427, 433 (15 L.Ed. 978). And see, also, Storm v. United States, 94 U.S. 76, 24 L.Ed. 42; Insurance Co. v. Piaggio, 16 Wall. 378, 386, 21 L.Ed. 358.

While we have in the present case no bill of exceptions, we have a record made up by agreement of the parties. The agreement of counsel was not merely that the papers mentioned in their stipulation should be printed in the record, but that they should 'constitute the record.' The case differs in this respect from Continental Gin Co. v. Murray Co., 162 F. 873, 89 C.C.A. 563. In that case there was an agreement that certain affidavits should be printed in the record, but there was no agreement that they should constitute a part of the record, and no bill of exceptions or proceedings of any kind by which the affidavits could have been imported into the record. Consequently, this court, finding in the record only the motion for attachment for contempt, the order to show cause and the judgment, and finding no error in that record, affirmed the judgment. Having a record before us, we turn to the assignments of error. There are but two of them. The first alleges error in entering the order adjudging Grove guilty of contempt, and the second alleges error in the refusal of the court to deny the order. These assignments, though not sufficiently specific to conform to the best practice, are sufficient, we think, to justify our inspection of the record to ascertain whether there be in it any apparent error.

The record shows that on April 4, 1909, the complainants, owner and licensee of certain patents for improvements in elastic-fluid turbines, filed their bill of complaint charging the defendant with infringement of the patents. Issue was joined by the filing of answer and replication. While the complainants were taking their proofs before the examiner they applied to the Circuit Court, and obtained from it a request addressed to the Secretary of the Navy that, if not inconsistent with the public interests, a certified copy of the plans and specifications filed by the defendant with the Navy Department for the building of two certain torpedo boat destroyers, in so far as said plans and specifications related to the construction and conditions of operation of the turbine propelling machinery, and including any papers submitted by the defendant in addition to the plans and specifications explaining the construction or conditions of operation of the so-called Zoelly turbine, be furnished to the counsel for the complainants. Subsequently, the Secretary of the Navy replied that, in his opinion, 'the furnishing by the Department of the Navy to the complainants herein of the documents in the said request of the court concerning the Zoelly turbine engine would be detrimental to the interests of the United States. ' Thereupon the Circuit Court recalled and vacated its request.

The complainants then served upon Henry S. Grove, president of the defendant company, a subpoena requiring him to produce before the examiner 'the plans, drawings, specifications, and other illustrative and descriptive papers, copies of which were submitted by the defendant to the Secretary of the Navy of the United States and filed in the Navy Department of the United States relating to the construction and operation of the steam turbines which the defendant contracted with the United States to make and sell by contracts dated October 1, 1908, covering the construction of torpedo boat destroyers, Nos. 30 and 31, and including the plans or drawings relating to such steam turbines, copies of which have been filed in the Navy Department under section 'sixth' of said contracts. ' A package of papers, under seal, containing, it was said, all the documents called for by the subpoena, was produced before the examiner by Mr. Grove, but, under advice of counsel, he refused to permit the package to be opened or the contents to be examined until after the court had passed on the following objections to the disclosure:

'1. The papers in question are privileged communications by the defendant to the United States Navy Department, and the disclosure thereof to the complainant, and to the public, would be prejudicial to the interests of the United States in that it would disclose military secrets, and be detrimental to the

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