Stromberg Motor Devices Co. v. Arnson

• Decision Date: 09 January 1917
• Docket Number: 49.
• Citation: 239 F. 891
• Parties: STROMBERG MOTOR DEVICES CO. v. ARNSON et al.
• Court: U.S. Court of Appeals — Second Circuit

239 F. 891

STROMBERG MOTOR DEVICES CO. v. ARNSON et al.

No. 49.

United States Court of Appeals, Second Circuit.

January 9, 1917

Seward Davis, of New York City, for appellant.

Frederick Zorn, of New York City, for appellees.

Before COXE, WARD, and HOUGH, Circuit Judges.

WARD Circuit Judge.

The complainant filed this bill upon two different patents, one to Ahara and one to Richard.

July 1 1915, the District Court entered a decree sustaining the Ahara patent with the usual directions as to injunction and accounting, and dismissed the bill as to the Richard patent without costs to either party.

December 28 the complainant appealed from that part of the decree dismissing the bill as to the Richard patent.

Section 129 of the Judicial Code reads:

'Sec 129. Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond.'

If the decree is interlocutory then the appeal regarded as one from the refusal to grant an injunction on the Richard patent does not lie, because it was not taken within thirty days after the entry of the decree.

But it is contended that an appeal may be taken from a severable controversy, finally determined by the court, notwithstanding that other controversies remain to be disposed of. This is true in an exceptional class of cases, where the merits are finally disposed of and nothing remains to be done but to enforce the decree by execution, notwithstanding that there remains an accounting, not asked for in the pleadings and merely incidental to the decree. Such are Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404; Thomson v. Dean, 7 Wall. 342, 19 L.Ed. 94. Chief Justice Waite, however, said in Winthrop Iron Co. v. Meeker, 109 U.S. 180, 3 Sup.Ct. 111, 27 L.Ed. 898, after considering these cases:

'The case is altogether different from suits by patentees to establish their patents and recover for the infringement. There the money recovery is part of the subject-matter of the suit. Here it is only an incident to what is sued for.'

Accordingly these exceptional cases need not be considered.

The appellant relies chiefly on Hill v. Railroad Co., 129 U.S. 170, 9 Sup.Ct. 269, 32 L.Ed. 651, and 140 U.S. 52 11 Sup.Ct. 690, 35 L.Ed. 331. That controversy arose in a case where there was a plurality of defendants. June 8, 1885, the complainant's bill was dismissed, with costs, as to all the defendants except the railroad company and its directors, as to whom it was retained in respect to one item of charge only, which was referred to a master. July 14, 1887, a decree was entered in favor of the complainant on this claim. October 17, 1887, the complainant took an appeal from both decrees. The Supreme Court in 140 U.S. 52, 11 Sup.Ct. 690, 35 L.Ed. 331, on motion to dismiss the appeal, held that the appeal was too late as to the decree of 1885, because it disposed finally of the merits as to all the parties, reserving only this subordinate controversy as to single item against the railroad company and certain defendants, in which the other defendants were not interested, and as to which it was provided a further decree should be made. It is quite clear that, if all the parties had been interested in this reserved question, the decree of 1885 would not have been held final. For this reason it was held in Hohorst v. v. Packet Co., 148 U.S. 262, 13...