Mossberg v. Nutter

• Court: U.S. Court of Appeals — First Circuit
• Citation: Mossberg v. Nutter, 124 F. 966 (1st Cir. 1903)
• Decision Date: 10 March 1903
• Docket Number: 449.
• Parties: MOSSBERG et al. v. NUTTER et al.

124 F. 966

MOSSBERG et al. v. NUTTER et al.

No. 449.

United States Court of Appeals, First Circuit.

March 10, 1903

William R. Tillinghast and Benjamin Phillips, for appellants.

James E. Maynadier, for appellees.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This case is practically disposed of by our opinion in Greene v United Shoe Machinery Company (passed down this day) 124 F 961. As there, a bill was brought for the alleged infringement of letters patent for an invention, and the decree below was for an injunction and an account, after a hearing on bill, answer, and proofs. An appeal was taken, as in Greene v. United Shoe Machinery Company, under the provision of statute relating to appeals from interlocutory decrees granting injunctions. The appellants now seek to have the case remitted to the Circuit Court for supplemental proceedings in that court by reason of alleged newly discovered evidence. They have not presented any formal motion, but they rely on a request from the learned judge who heard the case in the Circuit Court, as follows:

'To the Honorable the Judges of the Circuit Court of Appeals for the First Circuit, Greeting:

'A petition having been filed in the Circuit Court for the District of Massachusetts by the defendants in the case of Charles A. Nutter et al. v. Frank Mossberg et al., Equity No. 1,288, now pending upon appeal from this court under the title No. 449, Frank Mossberg et al. v. Charles A. Nutter et al., Equity, said petition praying that the said Circuit Court request from the Circuit Court of Appeals a return of the record in order that said Circuit Court may proceed further with the cause and grant leave to the said defendants to file in said Circuit Court a supplemental bill in the nature of a bill of review on the ground of newly discovered evidence, and it appearing to said Circuit Court after full hearing thereon that the prayer of said petition should be granted.

'The Circuit Court hereby, and upon the application of said defendants, requests the Honorable Circuit Court of Appeals to return to the Circuit Court the record in this cause in order that said Circuit Court may take further proceedings therein.'

'October 15, 1902.

Arthur L. Brown, Judge.' While, as we have said, the appellants make no specific motion, they authenticate this request to the effect that we 'return the record' in order that the Circuit Court may take further proceedings. To 'return the record' is in effect to 'remand' the case; so that what we have said in Greene v. United Shoe Machinery Company applies here. We can make no order with reference to proceedings in the Circuit Court unless we first reverse or modify, so that to 'return the record' or to 'remand' would be, in effect, the same; that is, to dismiss the appeal.

The method of proceeding here adopted for the purpose of securing a further opportunity in the Circuit Court is that suggested by the opinion of the Chief Justice in Roemer v Simon, 91 U.S. 149, 23 L.Ed. 267. It was there said in substance that the Supreme Court could not proceed on the application of the parties, and that only the court below could make a request to the appellate tribunal looking to further proceedings below, so that the parties must address themselves to that court, and not to the appellate tribunal. The result of all that was said in Roemer v. Simon, if in all respects according to law, would seem to leave no remedy, even in a case of clear injustice, where an appeal had been taken from a final decree, and the term at which the decree was entered had expired, unless the appellate tribunal heard the case on its merits, and thereupon either reversed or affirmed, and, if affirming, granted leave to the parties to file an application for supplemental proceedings below. It may be that such is the law with reference to final decrees, although a careful consideration of some of the earlier decisions of the Supreme Court, and especially the later,...