Stuart v. City of St. Paul

• Decision Date: 27 January 1894
• Citation: 63 F. 644
• Parties: STUART et al. v. CITY OF ST. PAUL et al.
• Court: U.S. District Court — District of Minnesota

63 F. 644

STUART et al. v. CITY OF ST. PAUL et al.

United States Circuit Court, D. Minnesota, Third Division.

January 27, 1894

Paul &amp Merwin, for complainants.

Leon T Chamberlain, for defendant the city of St. Paul.

SANBORN Circuit Judge.

This is a motion to vacate a final decree rendered June 5, 1893 during the January, 1893, term of this court, against the defendant the city of St. Paul upon a bill charging the infringement of a patent, and to permit the defendant to answer. The motion is denied for the following reasons:

First. The patent on which the bill is based has been sustained after a contest in the circuit court for the eastern district of Pennsylvania in Vulcanite Co. v. American Co., 34 F. 320, and in the circuit court for the district of Maryland in Stuart v. Thorman, 37 F. 90. Conceding, for the purposes of this decision, that the neglect of the corporation attorney is sufficiently excused by the affidavits filed, it must be presumed that the proposed answer of the city states every substantial defense it could interpose in this action. The answer has been carefully examined, and it does not refer to or plead any patent which is claimed to anticipate that in suit, nor does it specify any time or place where, or any party by whom, the invention described in the patent was ever used before application was made for the patent. Under this answer the only substantial defense is that the invention was not patentable. That question is so far foreclosed by the decision of the circuit courts already rendered that this court ought not to come to a different conclusion until all controversy is put at rest by a decree of the supreme court of the United States. Manufacturing Co. v. Bancroft, 32 F. 590; Manufacturing Co. v. Spalding, 35 F. 67; Reed v Railway Co., 21 F. 284; Celluloid Manuf'g Co. v. Zylonite Brush & Comb Co., 27 F. 295. As it does not appear that the city of St. Paul ever had any substantial defense to this suit, there is no reason why the decree should be vacated.

Second. It is not in the power of this court to vacate this final decree in any event. It was rendered at the January term, 1893. No application to vacate or modify it was made at that term. The nineteenth equity rule provides that:

'When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro

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