Janssen v. Belding-Corticelli

• Decision Date: 09 June 1936
• Docket Number: No. 5842-5845.,5842-5845.
• Citation: 84 F.2d 577
• Parties: JANSSEN v. BELDING-CORTICELLI, Limited, et al., and three other cases.
• Court: U.S. Court of Appeals — Third Circuit

84 F.2d 577 (1936)

JANSSEN v. BELDING-CORTICELLI, Limited, et al., and three other cases.

Nos. 5842-5845.

Circuit Court of Appeals, Third Circuit.

June 9, 1936.

Mowitz & Kohlhas, of Philadelphia, Pa., Greer & Johnson, of Media, Pa., and Roper & Caldwell, Wesley H. Caldwell, and Arno P. Mowitz, all of Philadelphia, Pa., for appellants.

Fraley & Paul, of Philadelphia, Pa. (Henry N. Paul, of Philadelphia, Pa., of counsel), for appellees.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

This case is here on appeal from orders of the District Court directing the appellants to appear, testify, and produce certain documents and exhibits before Everett G. Rodebaugh Esquire, appointed commissioner by the Exchequer Court of Canada in its commission obtained in a suit by appellees, Belding-Corticelli, Ltd., et al. v. Charles A. Kaufman, 10 F.Supp. 991, to annul or impeach a Canadian patent issued to Kaufman. The appellants are not parties to this suit and have no interest whatever in it.

The commission did not give Mr. Rodebaugh, as commissioner, authority to require the production of documents or physical exhibits, nor was the commission accompanied by any interrogatories, nor did it ask the aid of the United States courts.

The appellees filed a petition in the District Court for an order directing the issuance of subpœnas duces tecum against many witnesses, including the appellants, none of whom were named in the commission, commanding them to appear before the commissioner and be examined viva voce and bring with them certain file wrappers, drawings, etc., writings pertaining to United States and Canadian patent applications in which appellants were interested as applicants or otherwise. These papers were alleged to be material and tended to corroborate statements which appellants had made in their affidavits in certain interference proceedings in the United States Patent Office.

In their petition the appellees alleged that they filed specifications of objection in the Canadian proceedings to the effect that the invention, contained in the patent issued to Kaufman in Canada, had prior thereto been disclosed by the appellants, Krenkel, Meinig, and Janssen, and that the appellants were in possession of evidence which would establish these facts. Thereupon, the subpœnas were issued by the direction of the District Court in accordance with the prayer of the petition.

The appellants filed petitions to quash the subpœnas, but the court entered an order on May 10, 1935, denying the prayer of the petitions. It allowed exceptions and appeals, but refused a supersedeas which this court allowed, and the appeals are here on the merits.

The appellees contend that regardless of the merits of the case, the orders from which the appeals have been taken are interlocutory and not appealable.

If the orders are not appealable, that settles the case regardless of the merits. Section 128 of the Judicial Code, as amended (28 U.S.C.A. § 225) provides that the Circuit Court of Appeals shall have appellate jurisdiction to review by appeal or writ of error, final decisions of District Courts, except where a direct review may be had in the Supreme Court under other sections not pertinent here.

Were the orders appealed from final and appealable? The appellants here were strangers to the proceedings in the Canadian court. As above stated, they were not parties, were not mentioned in the complaint, nor in the commission issued by the Canadian court, and have no interest in the litigation. In order to protect their rights when the subpœnas were issued, they challenged the jurisdiction of the court and moved to quash the subpœnas. They appealed from both the order directing the issuance of the subpœnas and the order refusing to quash them. These orders directed the appellants to comply with the provisions of the subpœnas. A refusal without further proceedings would naturally have resulted in contempt and punishment therefor. These orders involving strangers to the litigation in Canada were independent in character, not interlocutory, but final and appealable. Savannah v. Jesup, 106 U.S. 563, 1 S.Ct. 512, 27 L. Ed. 276; Gumbel v. Pitkin, 113 U.S. 545, 5 S.Ct. 616, 28 L.Ed. 1128; Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275; Go-Bart Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374.

Did the District Court have jurisdiction to issue or order the issue of the subpœnas? The only authority the court had for doing so arises under the Constitution of the United States and the acts of Congress. The only provision in the Constitution on the subject is contained in article 3, section 2, clause 1, which reads as follows: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States...