Water Hammer Arrester Corporation v. Tower, 9527.
| Decision Date | 13 January 1949 |
| Docket Number | No. 9527.,9527. |
| Citation | 171 F.2d 877 |
| Parties | WATER HAMMER ARRESTER CORPORATION v. TOWER. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harold Olsen, of Chicago, Ill., and Elwin A. Andrus, of Milwaukee, Wis., for appellant.
Bertram W. Coltman, of Chicago, Ill., and Ralph W. Brown, of Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, SPARKS, Circuit Judge, and BRIGGLE, District Judge.
This suit originally involved the validity of patent No. 2273766, issued to defendant Tower, and was before this court at the April Session, 1946. At that time we sustained a decree of the District Court holding the patent invalid. 156 F.2d 775. The case was remanded to the District Court on January 20, 1947 after certiorari had been denied by the Supreme Court, 329 U. S. 806, 67 S.Ct. 501, 91 L.Ed. 688. On July 23, 1947 plaintiff filed in the District Court its motion under Federal Rules 36(a)1 and 37(c)2, 28 U.S.C.A., in which it sought to require the defendant to pay certain attorney's fees and expenses said to have been incurred by plaintiff in making proof of certain matters set forth in its previous requests for admissions of fact, and which plaintiff asserts defendant failed to answer in accordance with the provisions of such rules.
The District Court allowed plaintiff's motion and entered judgment against defendant for the sum of $1000.00 as and for plaintiff's attorney's fees and expenses incurred in making proof of the matters covered by the requests for admission, and which the District Court held defendant had failed to answer in accordance with the provisions of said rules. From this judgment defendant now appeals.
It will be noted that under Rule 36 in the form prevailing at the time of the hearing in the District Court, it is provided that It will also be noted that in the pertinent part of Rule 37 it is provided that "If a party, after being served with a request under Rule 36 * * * serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. * * *"
An examination of the record discloses that there were fifty-three separate requests for admission, nine of which are involved in this appeal. Of the nine, defendant in response thereto either admitted the matters requested or asserted that he was without knowledge of the facts. We have searched the record in vain to find where the defendant ever made any denial in connection with any of the nine requests now involved, and we have likewise searched in vain to find where the defendant ever served the plaintiff with a sworn statement or sworn denial in reference to these nine requests as provided in the pertinent provisions of said rules. Under such circumstances it seems clear that the matters requested stood admitted and required no further proof on the part of plaintiff. Rule 36 requires affirmative action by the party upon whom the request is made. If the requests...
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Howard v. City of Melvindale
...answered because it was taken as admitted West Kentucky Coal Co. v. Walling (CA 6, 1946), 153 F.2d 582; Water Hammer Arrester Corporation v. Tower (CA 7, 1949), 171 F.2d 877. Such holdings are in accord with the express language of rule 313, which literally provides for reimbursement of the......
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Mangan v. Broderick and Bascom Rope Company
...a verified response to requests for admissions under Rule 36 admits the truth of all matters therein stated, Water Hammer Arrester Corp. v. Tower, 7 Cir., 171 F.2d 877, 879, Adventures in Good Eating v. Best Places to Eat, 7 Cir., 131 F.2d 809, O'Campo v. Hardisty, 9 Cir., 262 F.2d 621, and......
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Rautbord v. Ehmann
...any response, and under the rule both petitioner and the court had a right to treat the request as admitted. See Water Hammer Arrester Corp. v. Tower, 7 Cir., 171 F.2d 877, 879. And it follows that the findings of the court of evidentiary facts as a basis for its jurisdiction must be accept......
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N.R. v. A.D.
...rely thereupon and no further proof is required to be made of the facts thus admitted." Mangan, at 28, citing Water Hammer Arrester Corp. v. Tower, 171 F.2d 877, 879 (7th Cir.1949). See also Eickman Estate v. Tuel, 291 N.W.2d 308, 312 (Iowa 1980), in which the Supreme Court of Iowa, interpr......