Naivette v. Philad Co.
| Decision Date | 15 May 1931 |
| Docket Number | No. 5794.,5794. |
| Citation | 54 F.2d 623 |
| Parties | NAIVETTE, Inc., v. PHILAD CO. et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Marston Allen, of Cincinnati, Ohio (Pennie, Davis, Marvin & Edmonds, of New York City, Kwis, Hudson & Kent, of Cleveland, Ohio, and W. Brown Morton and E. H. Merchant, both of New York City, on the brief), for appellant.
Morris Kirschstein, of New York City (Harvey R. Hawgood, Hawgood & Van Horn, and T. Paul Titus, all of Cleveland, Ohio, on the brief), for appellees.
Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
Appellees brought in the court below against appellant the usual suit for patent infringement. Appellant answered denying validity and infringement; and continued its answer with several paragraphs stating a counterclaim based on unfair competition by the plaintiff against the defendant. This answer concluded with a paragraph praying that the bill be dismissed, that an injunction be issued against plaintiffs to restrain this unfair competition, and that plaintiffs account to defendant for the damages caused thereby. Plaintiffs moved to strike out the paragraphs alleging this counterclaim and the concluding paragraph praying cross-relief; the motion being founded upon the contention that the subject-matter stated was not a proper subject for counterclaim. The District Court granted this motion. Defendant brought this appeal.
It is conceded that the order striking out the counterclaim was not final, but was interlocutory, and that the appeal therefore can rest only upon section 129 of the Judicial Code, being section 227 of title 28, USCA. The question is whether, in effect, an interlocutory injunction was refused. No motion for such injunction had been made by defendant; but, as the greater includes the less, striking out the counterclaim amounted to the advance denial of any such motion. Whether such action should be considered as a refusal to grant an interlocutory injunction, is not entirely clear, upon the language of the section. In a somewhat similar case in the Circuit Court of Appeals of the Second Circuit (Radio Corp. v. Bunnell & Co., 298 F. 62), the right of appeal was denied; but in that case the prayer for injunction under the counterclaim seems to have been rather incidental, and the dismissal of the counterclaim was not therefore characteristically a refusal of the injunction; while here the only equitable relief sought by the counterclaim was the injunction, and the dismissal of...
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Woodard v. Sage Products, Inc.
...Fed. 965, 968. Ward Baking Co. v. Weber Bros., 230 Fed. 142. Historical Pub. Co. v. Jones Bros. Pub. Co., 231 Fed. 638, 643. Naivette v. Philad Co., 54 F. (2d) 623. 287 U.S. at 433, 53 S.Ct. at 203, 15 USPQ at 267. Thus, the proposition is long established that interlocutory appeals are not......
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Stewart-Warner Corp. v. Westinghouse Electric Corp.
...case cited in General Electric, 287 U.S. at 433, 53 S.Ct. at 203-204, 77 L.Ed. 408, "the greater includes the less." Naivette, Inc. v. Philad Co., 54 F.2d 623 (6 Cir. 1931). Discretionary practice orders designed to avoid undue delay or confusion in the course of a particular trial do not r......
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...Ward Baking Co. v. Weber Bros. 3 Cir., 230 F. 142. Historical Pub. Co. v. Jones Bros. Pub. Co. 3 Cir., 231 F. 638, 643. Naivette v. Philad Co. 6 Cir., 54 F.2d 623. Cf. Banco Mercantil Americano v. Taggart Coal Co. 5 Cir., 276 F. 388, 390. Plaintiffs' motion to dismiss the appeal was rightly......
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