Theller v. Hershey

• Decision Date: 29 September 1898
• Docket Number: 12,139.
• Citation: 89 F. 575
• Parties: THELLER v. HERSHEY.
• Court: U.S. District Court — Northern District of California

89 F. 575

THELLER v. HERSHEY.

No. 12,139.

United States Circuit Court, N.D. California.

September 29, 1898

This is a bill in equity for the infringement of letters patent. The bill, among other things, alleges that complainant, on the 7th day of August, A.D. 1895, 'filed in this honorable court a declaration in an action at law against one Thomas B Ross, alleging an infringement by said Ross upon claim 1 of the same letters patent herein sued on, and praying for a judgment against said Ross for damages; that thereafter said Ross duly appeared in said action by counsel learned in the law, and filed an answer therein and a notice of special matter, whereby he denied the validity of said claim of said patent, and denied infringement thereof, and alleged that it was anticipated, and was void for want of invention; that thereafter said action came on regularly for trial, and was tried before this court and jury fully and fairly, upon the issues so framed as above stated, and said jury rendered a verdict in favor of the plaintiff and against the defendant therein, sustaining the validity of said claim 1 of said patent, adjudging an infringement and awarding a certain sum of money as damages; that thereupon a judgment upon said verdict was duly made, given, and entered by this court for said damages, and the further sum of $80.30 costs; that the machine made and used by the defendants herein, and charged to be an infringement of claim 1 of the patent sued on, was and is substantially of the same form, construction principle, and mode of operation as the machine made and used by said Ross, and found and decided in the action against him to be an infringement of claim 1 of the patent sued on. Said action of Theller against Ross was pressed to judgment as a test case, and, as complainant is informed and believes pursuant to an agreement between this respondent and one Byron Jackson, and Ross, should stand in together in the defense of the said action of Theller against Ross, and each should contribute one-third of the costs and expenses thereof. Complainant alleges, on his information and belief that said Jackson was designated and directed to attend to the defense of said action of Theller against Ross on behalf of said three parties; and in pursuance therewith the said Jackson did thereupon proceed to and did employ attorneys and an expert for the defense of said action of Theller against Ross, and this respondent did contribute a third or a large part of the moneys for the defense of said action of Theller against Ross, and the said Jackson, acting on behalf of said Jackson, Ross, and Hershey, did build, or cause to be built, the model of the Ross machine used by defendant in said action of Theller against Ross, and did appear personally in the defense of the said action, and in the active management of the same, and the said attorneys and expert so employed by said Jackson, Ross, and Hershey did defend said action of Theller against Ross on their behalf pursuant to their said agreement. ' The respondent demurs to these averments in the bill on the ground that they do not state 'any cause of action or suit, or such a case as entitles him to any relief whatsoever against this respondent.'

Albert C. Aiken and John H. Miller, for complainant.

J. P. Langhorne, for respondent.

HAWLEY District Judge (orally).

Do the averments in the bill show that the respondent herein was privy to the former action? Are the allegations sufficient...