Schultze v. Holtz

• Decision Date: 23 August 1897
• Docket Number: 12,101.
• Court: U.S. District Court — Northern District of California
• Parties: SCHULTZE v. HOLTZ et al.

82 F. 448

SCHULTZE v. HOLTZ et al.

No. 12,101.

United States Circuit Court, N.D. California.

August 23, 1897

John H Durst, for complainant.

M. H Hernan, for defendants.

MORROW Circuit Judge.

The bill in this suit is filed to restrain the infringement of certain letters patent No. 502,891 and No. 514,664, granted to the complainant on August 8, 1893, and February 13 1894,respectively, it being alleged that said patents are for a certain new and useful invention; to wit, certain new and useful improvements and combinations of mechanism in a coin-controlled apparatus. The answer denies, among other things, that the inventions of complainant are new and useful. On the contrary, it is specifically averred that the only use to which the complainant's inventions have been put or applied is for gambling purposes in saloons and barrooms and other drinking places in and about the city and county of San Francisco, state of California, and that the said coin-controlled apparatus cannot be used for any other purpose. Testimony was taken by the complainant, who introduced the evidence of two witnesses, tending to show that the defendants had infringed. No testimony was introduced by the defendants. Solicitor for complainant asks for a decree in his favor on the ground that the defendants have presented no evidence nor made any showing which would justify the court in refusing the complainant his decree. The defendants, however, filed a verified answer, which, in equity, in so far as it is responsive to the bill, not only makes the issue, but is testimony in favor of the defendants and can only be overthrown by the testimony of two witnesses or the testimony of one witness and circumstances equivalent to another, or at least sufficient to make a preponderance of evidence in favor of complainant. Slessinger v. Buckingham, 8 Sawy. 470, 17 F. 454; Vigel v. Hopp, 104 U.S. 441; Fost. Fed.Prac. (2d Ed.) p. 173, Sec. 84. The complainant, as stated, did introduce the testimony of two witnesses, and defendants, upon cross-examination, elicited testimony which tends to show that the invention of Complainant was not new and useful, and that it was a gambling device, and could be used for no other purpose. This testimony was, however, obtained over the objection of the complainant that it was not proper cross-examination, the witnesses not having been interrogated on that subject in their direct examination. The...