Sheeler v. Alexander

• Court: U.S. District Court — Northern District of Ohio
• Citation: Sheeler v. Alexander, 211 F. 544 (N.D. Ohio 1913)
• Decision Date: 03 October 1913
• Docket Number: ( 132.
• Parties: SHEELER v. ALEXANDER et al.

211 F. 544

SHEELER v. ALEXANDER et al.

(No. 132.

United States District Court, N.D. Ohio, Eastern Division.

October 3, 1913

Wing Myler & Turney, of Cleveland, Ohio, for plaintiff.

Reed Russell & Eichelberger, Carpenter, Young & Stocker, and Hull & Smith, all of Cleveland, Ohio, for defendants.

DAY District Judge.

The defendants have filed a petition for a rehearing, praying in part that the decree for infringement against them be set aside, pending the hearing.

This petition for a rehearing is sworn to, and is accompanied by affidavits setting forth certain newly discovered evidences relied upon by the defendants.

To this petition for a rehearing the complainant has filed a motion to strike the petition from the files, for the reason that the petition is not in accordance with the rules of practice in equity, on the ground that there is newly discovered evidence; and, inasmuch as the petitioner asks that the decree be set aside instead of praying for leave to file a bill of review, or a bill in the nature of a bill of review the motion raises the question whether or not the proper procedure has been taken in the filing of this petition for a rehearing, in view of the adoption of the new equity rule by the Supreme Court of the United States. Equity rule 69 provides:

'Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person.'

Rule 18 (198 F. xxiii, 115 C.C.A. xxiii) provides:

'Unless otherwise prescribed by statute or these rules the technical forms of pleading in equity are abolished.'

And rule 19 (198 F. xxiii, 115 C.C.A. xxiii) provides, in part:

'The court, at every stage of the proceeding, must disregard any error of defect in the proceedings which does not affect the substantial rights of the parties.'

Rule 34 (198 F. xxviii, 115 C.C.A. xxviii) provides for the filing of supplemental pleadings in the cause.

Rule 46 (198 F. xxxi, 115 C.C.A. xxxi) provides in part:

'In all trials in equity the testimony of witnesses shall be taken orally in open court, except otherwise provided by statute or these rules.'

It would seem to be the spirit of these new equity rules that they were drawn by the Supreme Court with the intent of leaving the judge free to adjust matters in the interests of substantial justice, as he sees it, unhampered by precedent and by technical definitions and distinctions. So the important question to decide is as to the fairest and best method of raising the questions to be decided on a petition for a rehearing.

It is apparent that the present petition for a rehearing is based largely on the ground of newly discovered evidence. That such a proceeding is a proper one is recognized by the courts. The contention raised by counsel for the complainant is supported by the case of Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786. In this case a petition was presented by the defendant after an interlocutory decree asking for a rehearing and for leave to introduce newly discovered evidence in the cause. The court, after a full investigation of the equity practice of England and the United States, which existed at that time, held that, where a rehearing is sought on the ground of newly discovered evidence, after an interlocutory decree, the court might grant the rehearing upon the filing of a supplemental bill, if the evidence was of such a nature or character as to entitle the party to relief, upon a bill of review, after the enrollment of a final decree, or on a supplemental bill in the nature of a bill of review, where there had been no enrollment, but not otherwise.

A like petition was later filed in Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267, in which the court said:

'The present application, if maintainable at all, should properly, in its prayer, be for leave to file a supplemental bill, to bring forward the new evidence, and for a rehearing of the cause at the time when the supplemental bill should also be ready for a hearing.'

This practice is recognized as the correct practice in Gillette v. Bates Refrigerating Co. (C.C.) 12 F. 108; Deitsch v. Staub, 115 F. 309, 317, 53 C.C.A. 137; Foster's Federal Practice (3d Ed.) Sec. 352, p. 783; Walker on Patents (4th Ed.) Sec. 647, p. 501; Daniell's Chancery Practice, 1537.

It is well established that in order to entitle the defendant to a rehearing two questions are principally involved: First. Have they shown that they exercised due and reasonable diligence before the hearing in procuring the evidence now sought to be introduced? Pittsburgh Reduction Co. v. Cowles Co. (C.C.) 64 F. 125; Moneyweight Scale Co. v. Toledo, 199 F. 905, 118 C.C.A. 235; Australian Knitting Co. v. Wright's Health Underwear, 121 F. 1017, 56 C.C.A. 678. Secondly. That the new evidence sought to be introduced is material in determining the issues raised by the pleadings, and is probably true. Section 647, Walker on Patents; Munson v. New York (C.C.) 11 F. 72; New York Sugar Co. v. American Co. (C.C.) 35 F. 212; Bates on Fed. Procedure, vol. 2; section 683, Foster's Fed. Practice (3d Ed.) Sec. 352.

Inasmuch as the petition for a rehearing is not an ex parte proceeding, counter affidavits may be received by the court in order that the court may be fully advised as to whether or not due diligence was indulged in by the petitioning party and whether or not the evidence sought to be introduced was material. Walker on Patents, Sec. 647; Simpkins, A Federal Suit in Equity, p. 623; Blandy v. Griffith, Fed. Cas. No. 1,530; Albany Steam Trap Co. v. Felthousen ...