Schifrin v. Chenille Mfg. Co.

• Citation: 117 F.2d 92
• Decision Date: 13 January 1941
• Docket Number: No. 139.,139.
• Parties: SCHIFRIN v. CHENILLE MFG. CO., Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

117 F.2d 92 (1941)

SCHIFRIN v. CHENILLE MFG. CO., Inc., et al.

No. 139.

Circuit Court of Appeals, Second Circuit.

January 13, 1941.

Meyer Schifrin, of New York City, for plaintiff-appellant.

Robert J. Blum, of New York City, for defendants-appellees.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

There were filed with the court below on October 5, 1939, the following papers: plaintiff's complaint herein, alleging patent infringement, on the back of which was a written admission of "due and proper service of a copy of the within," dated October 2 and signed by Abraham Aaron as attorney for defendants; a notice of appearance of the defendants, also dated October 2 and signed by Aaron as solicitor for defendants; and a stipulation of the same date consenting to judgment for the plaintiff, signed by Aaron as solicitor for defendants, together with plaintiff's solicitor. On November 24, 1939, the court, "upon reading and filing the consent of the parties herein and upon the annexed stipulation and upon the pleadings and proceedings herein," rendered an interlocutory judgment for the plaintiff finding infringement of the patent in question, granting an injunction, and referring the case to a master to determine profits and damages due.

On the following May 4, defendants by a different attorney served notice of a motion to vacate the judgment on the ground that their consent and the consideration therefor constituted an agreement illegally restraining trade. Notice of a second motion to vacate was served six days later; this motion alleged lack of jurisdiction over the defendants, on the ground that Aaron had never been admitted to practice before the district court. The latter motion was granted, and since the judgment was thereby vacated, the former one was dismissed. On reargument, the order vacating the judgment was reaffirmed. Since this constituted a denial of interlocutory relief, the appeal herein brings before us the issue of its correctness. 28 U.S.C.A. § 227.

Aaron actually had not been admitted to practice before the District Court for the Southern District of New York. Defendants show no prejudice to themselves from that fact, however; nor do they seriously attempt to make out a case of having been misled by the incompetent advice of one masquerading as an attorney. See People v. Nitti, 312 Ill. 73, 143 N.E. 448. Indeed, such an attempt would be futile, for it is conceded that Aaron was a registered patent attorney, with offices in Brooklyn, a member of the bars of the Supreme Court (now District Court) and Court of Appeals for the District of Columbia of more than twenty years' standing. Furthermore, these steps taken by Aaron merely carried out an agreement which the individual defendants for themselves and the corporate defendant made in person with the plaintiff and which was conditioned on the grant of a sublicense to them by plaintiff's exclusive licensee under the patent. They concede that the required sublicense agreement was signed. Defendant Richard Farber, as president of the defendant corporation, had power to act for the corporation. Schwartz v. United Merchants & Manufacturers, Inc., 2 Cir., 72 F.2d 256, and cases cited; 50 Yale L.J. 348, 353. Thus, unless there is other ground of invalidity of the contract (such as was asserted in the first motion to vacate), the plaintiff could have obtained his affirmative relief in this action in any event by proving these conceded facts.

Hence defendants' only line of attack is the narrowly technical one that, in the absence of the service of process, jurisdiction over them could have been obtained only by the notice of appearance, which was void because entered by one not entitled to practice in that court. They rely on the last sentence of Rule 3 of that court, providing: "Only an attorney or proctor of this Court may enter appearances for parties, sign stipulations or receive payment upon judgments, decrees or orders." Authority for the rule is found in 28 U.S.C.A. § 394, authorizing parties to appear in all the courts of the United States in person or by attorneys permitted to do so by rules of the said courts.

Since no penalty for violation of this rule, or other method of enforcement of it, is expressly provided, it may be fairly inferable that sanctions should be applied only against those to whom the rule is addressed and who themselves infringe it, i.e., those who, not being attorneys of the court, attempt to enter appearances and sign stipulations for parties. Such persons might be adjudged in contempt (Heiskell v. Mozie, 65 App.D.C. 255, 82 F.2d 861), enjoined from continuing practice (Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910, 94 A.L.R. 356), or acting in the case (In re Looney, D. C.W.D.Tex., 262 F. 209), or denied recovery of fees (East St. Louis v. Freels, 17 Ill.App. 339). Even these penalties were in the cases cited incurred by laymen acting as attorneys; they might appear harsh against genuine attorneys who have failed only to comply with the formal ritual of a particular court. See In re Miltones, Inc., 2 Cir., 286 F. 806, 809, in which a mild reprimand was thought sufficient, and Rouiller v. A. & B. Schuster Co., D.C.Ariz., 212 F. 348, where no action was taken.

True, there are decisions dismissing a complaint or striking an answer offered by an unlicensed attorney on motion made before further proceedings. Mullin-Johnson Co. v. Penn Mut. Life Ins. Co. of Philadelphia, D.C.N.D.Cal., 9 F.Supp. 175; Brandstein v. White Lamps, Inc., D.C.S. D.N.Y., 20 F.Supp. 369. In Weir v. Slocum, 3 How.Prac. (N.Y.) 397, a complaint filed by a lay agent of the plaintiff was set aside, but with leave to plead over in spite of the expiration of the period of the statute of limitations. See also Richardson v. The Brooklyn City & Newtown R. R., 22 How.Prac. (N.Y.) 372; Aberdeen Bindery, Inc. v. Eastern States Printing & Publishing Co., 166 Misc. 904, 3 N.Y.S.2d 419; and McClintock v. Laing, 22 Mich. 212. These may be appropriate ways of enforcing the rule without great injury to the client; even they seem to go further than courts are usually willing to go in punishing the innocent litigant. Generally they have refused to nullify orders entered on the motion of unlicensed attorneys, to nullify appearances, or to dismiss complaints filed by them. Garrison v. McGowan, 48 Cal. 592; Elson v. Sullivan, Iowa, 186 N.W. 769; People v. Purdy, 221 N.Y. 481, 116 N.E. 390; Kerr v. Walter, 104 App.Div. 45, 93 N.Y.S. 311; Rader v. Snyder, 3 W.Va. 413; Peterson v. Parriott, 4 W. Va. 44. Especially is this so if an answering pleading has been filed or any other act is done which might be considered a waiver of the objection. Rouiller v. A. & B. Schuster Co., supra; Norwood v. Dodge, 215 Mass. 351, 102 N.E. 412; Henry L. Sawyer Co. v. Boyajian, 296 Mass. 215, 5 N.E.2d 348; Parow v. Cary, 1 How.Prac. (N.Y.) 66; Reeder v. Bloom, 3 Bing. 9; Sparling v. Brereton, L.R. 2 Eq. 64. And if the court thus protects the interest of the attorney's own client, all the more should it protect the interest of the opponent, who is surely without fault — who should not, as said in Reeder v. Bloom, supra, have the duty of trying not only his own case, but also that of the opposing lawyer's authority.

In...