Maitland v. Gibson

• Decision Date: 22 January 1897
• Citation: 79 F. 136
• Parties: MAITLAND v. GIBSON.
• Court: U.S. District Court — Eastern District of Pennsylvania

79 F. 136

MAITLAND v. GIBSON.

United States Circuit Court, E.D. Pennsylvania.

January 22, 1897

Dyer &amp Driscoll, for plaintiff.

Theodore F. Jenkins, for defendant.

DALLAS Circuit Judge.

The person who is named as defendant in the present bill is in fact the plaintiff in this suit, in which he was decreed to pay costs amounting to $2,525.55. This fact is now alleged and also that the ordinary process of execution for satisfaction of the said decree has been resorted to without avail, and that the said George Maitland has no property subject to execution at law, but is the owner of certain letters patent, which, 'if sold, would realize some money which would go in partial or complete satisfaction of the said decree. ' An injunction to restrain assignment of these patents is prayed, and that they may be sold and the proceeds be applied to the payment of the costs heretofore adjudged to be paid by Maitland, and those arising under the present proceeding. The existence of the right asserted seems to be unquestionable (Ager v. Murray, 105 U.S 126); but as to the mode in which, in this case, it has been prosecuted, I will have a word to say presently.

The defendant (styled 'plaintiff' in this bill) having moved for a preliminary injunction, counsel for the plaintiff in the original suit, upon leave granted, appeared only for the purpose of moving 'to set aside the service of the bill, ' and such motion has accordingly been made and argued. It has been conceded that upon the fate of this latter motion the defendant's right to injunction is dependent, and hence the single question for solution is whether or not George Maitland is to be regarded as now before this court, and liable to be affected by any order it may make in the premises. If this bill should be viewed as the commencement of an independent suit, he certainly is not for no subpoena has been issued, or could be legally served, as Maitland is not an inhabitant of this district. If, however, this proceeding may correctly be treated as but a step taken in the original suit, then I have no doubt thea the notice which has been given of the filing of the bill and of the intended motion for injunction is all that Maitland was entitled to. I think it was a mistake to put this application in the form of a bill, but, as no matter of substance will be affected by it, it is such an irregularity as a court of equity may disregard. It is true that in Ager v. Murray, supra, there was a similar bill; but the judgment to the satisfaction of which a patent right was there made liable was a judgment at law, and therefore a bill was requisite in order that the question which was presented, namely, 'whether a patent right may be ordered by a court of equity to be sold,' etc. (page 127), might be regularly brought before such a tribunal for adjudication. In the present...