296 F2d 215 Kinnear-Weed Corporation v. Humble Oil & Refining Company

296 F.2d 215

132 U.S.P.Q. 305


No. 16780.

United States Court of Appeals Fifth Circuit.

May 17, 1961.

Before RIVES, JONES and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

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It now appears to the Court that the final sentence of the opinion entered in this cause on the 22nd day of September 1958, 259 F.2d 398; Fuller v. Aetna Life Ins. Co., 5 Cir., 259 F.2d 402, reading 'The judgment of the district court is therefore affirmed' did not carry out the theretofore clearly expressed opinion of this Court, but constituted a clerical mistake which should be corrected. A petition for certiorari pending but not ruled on does not deprive this Court of jurisdiction to make the necessary correction. See 28 U.S.C.A. 1254; Rule 19 of the Supreme Court, 28 U.S.C.A. Nor has time or the expiration of the term affected the power of this Court to make such correction. See 28 U.S.C.A. 452; Hines v. Royal Indemnity Co., 6 Cir.1958, 253 F.2d 111, 113; National Comics Publications v. Fawcett Publications, 2nd Cir.1952, 198 F.2d 927; Compare Rule 60(a), F.R.Civ.P. 28 U.S.C.A.; American Trucking Association v. Frisco Co., 1958, 358 U.S. 133, 145, 79 S.Ct. 170, 3 L.Ed.2d 172. Said final sentence of the opinion is therefore withdrawn and, in lieu thereof, there is substituted the following: 'The judgment of the district court is therefore modified by striking therefrom that part which declares that U.S. Patent No. Re 23416 is invalid and void, and, as so modified, the said judgment is affirmed.' The Clerk of this Court is directed to recall the mandate, and to enter a corrected judgment in accordance with this opinion, and issue a corrected mandate forthwith.


William E. Kinnear, Beaumont, Tex., for appellant.


Garrett R. Tucker, Jr., Houston, Tex., for appellee.