OpenJurist

125 US 54 Felix v. Scharnweber

125 U.S. 54

8 S.Ct. 759

31 L.Ed. 687

FELIX
v.
SCHARNWEBER.1

March 19, 1888.

B.C. Cook, for plaintiff in error.

Henry Decker, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

1

This record does not present any federal question. No such question is stated in the pleadings, involved in the rulings at the trial or in the final judgment, or mentioned in the opinion of the supreme court of Illinois. The action was brought upon a contract in writing between the parties, being the joint owners of a patent for an improved rope-reel, by which it was agreed that the defendant should have the exclusive control of the manufacture and sale of the reel, paying to the plaintiff a certain royalty on each reel sold. This was not a case arising under the patent laws of the United States, within the exclusive jurisdiction of the federal courts, (Manufacturing Co. v. Hyatt, ante, 756,) and no suggestion that it was appears by the record to have been made in either of the courts of the state. The only exceptions taken by the defendant at the trial were to the admission of evidence offered by the plaintiff, and to the instructions given by the court to the jury. But that evidence does not appear to have been admitted for any other purpose than to show that the reels made and sold by the defendant were substantially like those mentioned in the agreement sued on. At the time of its admission, no letters patent were in the case. The question at issue was not of priority of invention, or of the validity or construction of any patent, but simply whether the reels made and sold by the defendant were such as, or substantially like, those mentioned in his contract with the plaintiff; and in the instructions to the jury the plaintiff's right of recovery was car fully limited to such reels. The patent to Mason was introduced in evidence afterwards, and by the defendant himself, against the plaintiff's objection; and no ruling upon the validity or the construction of either patent, or upon the legal effect of the evidence, was requested by the defendant, or made by the court. The petition upon which the writ of error was allowed by the acting chief justice of the supreme court of Illinois does indeed represent that the patent to Mason was set up by the defendant, and its validity assailed, and that the defendant also alleged that the jurisdiction to try the questions involved was exclusively in the courts of the United States, and that the decision of the state court was against him on both these points. But in allowing a writ of error from this court to the highest court of a state, and in issuing a citation, the chief justice of that court does but exercise an authority vested by congress in him concurrently with each of the Justices of this court. Rev. St. § 999; Gleason v. Florida, 9 Wall. 779; Bartemeyer v. Iowa, 14 Wall. 26. When counsel applying for the allowance of the writ of error insist that a federal question has been decided against the plaintiff in error, the chief justice of the state court may feel bound to allow the writ, for the purpose of submitting to the final determination of this court whether such a question was necessarily involved in the judgment sought to be reviewed. But his certificate that such a question arose and was decided against the plaintiff in error cannot supply the want of all evidence to that effect in the record. As has been more than once observed by this court, 'the office of the certificate, as it respects the federal question, is to make more certain and specific what is too general and indefinite in the record, but is incompetent to originate the question.' Parmelee v. Lawrence, 11 Wall. 36, 39; Brown v. Atwell, 92 U. S. 327, 330.

2

Writ of error dismissed for want of jurisdiction.

1

Affirming 10 N. E. Rep. 16.

[Statement of Case from pages 54-58 intentionally omitted]