Morton Trust Co. v. Keith

• Decision Date: 07 February 1907
• Docket Number: 123.
• Citation: 150 F. 606
• Parties: MORTON TRUST CO. et al. v. KEITH et al.
• Court: U.S. District Court — District of Massachusetts

150 F. 606

MORTON TRUST CO. et al. v. KEITH et al.

No. 123.

United States Circuit Court, D. Massachusetts.

February 7, 1907

Wm. C Strawbridge, for complainants.

Kay Totten & Winter, for defendants.

LOWELL Circuit Judge.

This was a bill in equity, to which the defendant duly answered. After the proofs had been completed, but before the case was set down for hearing, the complainant moved to dismiss the bill without prejudice upon payment of costs. The defendant objected to the decree in the usual form, and submitted a draft as follows:

'In the Circuit Court of United States, District of Massachusetts.

'Morton Trust Company and Pressed Steel Car Company, Complainants, v. Eben S. S. Keith, Trading as I. N. Keith & Son, Defendant.

'And now to wit, January . . . , 1907, complainants' motion to discontinue the above cause without prejudice having been argued by counsel for the respective parties, it is ordered that all testimony taken in the cause be filed of record, and that thereafter the cause shall be discontinued without prejudice upon payment by complainants of the costs to be taxed by the clerk; and that all testimony taken by complainants or defendant in this cause may be offered in evidence in any suit brought against this defendant, or brought against the Standard Steel Car Company, which company has manufactured the bolsters complained of in this suit and has borne the expenses of the defense thereof, or any of the customers of this defendant or said Standard Steel Car Company involving the patent in suit, * * * and, further, that in case any notices of infringement, or claims of infringement, of said patent shall be made against the said defendant or against the Standard Steel Car Company, or any of the customers or prospective customers of this defendant at the Standard Steel Car Company, the court reserves the right to strike off this order of discontinuance and send the case to final hearing.'

The defendant does not deny the complainant's abstract right to dismiss the bill without prejudice upon payment of costs but insists that, in thus dismissing the bill, the court has authority to impose such terms as it deems just and convenient. In support of this proposition, he cites Brush v. Condit (C.C.) 20 F. 826, American Zylonite Co. v. Celluloid Mfg. Co. (C.C.) 32 F. 809, and American Steel & Wire Co. v. Mayer & Englund Co. (C.C.) 123 F. 204. A decree in the form which he seeks...