Kulesza v. Blair

• Decision Date: 03 July 1930
• Docket Number: No. 4281,4282.,4281
• Citation: 41 F.2d 439
• Parties: KULESZA et al. v. BLAIR et al. SAME v. AMERICAN CAR & FOUNDRY CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

41 F.2d 439 (1930)

KULESZA et al. v. BLAIR et al.

SAME v. AMERICAN CAR & FOUNDRY CO. et al.

Nos. 4281, 4282.

Circuit Court of Appeals, Seventh Circuit.

June 4, 1930.

Rehearing Denied July 3, 1930.

A. Miller Belfield and James Hamilton Lewis, both of Chicago, Ill., for appellants.

James M. Sheean and Weymouth Kirkland, both of Chicago, Ill., for appellees Blair and others.

J. Gray Lucas, of Chicago, Ill., for appellee Robinson.

Ephraim Banning, of Chicago, Ill., for appellee American Car & Foundry Co.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge.

Both appeals (Nos. 4281 and 4282) involve similar issues and were argued at the same time. They will be disposed of in one opinion. Both suits were brought to recover damages growing out of the alleged infringement of a patent (No. 886541) to Elbert R. Robinson, May 5, 1908, which expired prior to the commencement of the two suits.

No. 4281. The plaintiffs sued on behalf of themselves, individually, and as a committee acting for and representing 1,400 others, as well as on behalf of any and all others who may have similar rights and interests in and to the aforesaid patent, who may choose to join as parties plaintiff and contribute ratably to the expenses of the suit. They also alleged that the patentee conveyed to the plaintiffs rights in and to said patent as well as the right to recover damages for past infringements of this patent. The widow of patentee, the administratrix of his estate, was made a codefendant and she took the same legal position as the plaintiffs.

It was also alleged that the street car company infringed the patent and that the receivers continued to use the infringing articles (rails) after their appointment which was in December 1926. In the proposed amended complaint allegations also appear to the effect that the receivers retained the large profits which the street car companies made from the use and sale of the infringing device.

Defendants moved to dismiss the complaint and their motion was granted. Later plaintiffs served notice that they would ask leave to file an amended bill of complaint and a date was set for hearing such motion. Notice was also given that plaintiffs would move to correct the clerk's minutes by striking the decree dismissing the bill at plaintiffs' costs. The motion to correct the record was denied. Subsequently the motion for leave to file an amended bill of complaint was overruled. Appellants then petitioned the court for an order allowing an appeal from the order denying them leave to file the amended complaint. They assigned as error the court's action in overruling their motion for leave to file an amended complaint and also the court's order refusing an amendment to the complaint. The court then allowed an appeal from the order overruling plaintiffs' motion for leave to file an amended complaint.

This order was not an appealable one. Ex parte Tiffany, 252 U. S. 32, 40 S. Ct. 239, 64 L. Ed. 443; National Brake & Electric Co. v. Christensen (C. C. A.) 258 F. 880; McGourkey v. Toledo & Ohio Central Railway Co., 146 U. S. 536, 13 S. Ct. 170, 36 L. Ed. 1079; Dickinson v. Sunday Creek Co. (C....