JJUDLEY E. JONEB 00. t1.
DlPROVED 0, XAOlI. X.uroJ"G 00.
E.Jolml Co. et tll.
fl. MUNGER IMPROVED COTTON ltUCII. MANW'G Co.
oJ .Appeala, Ii'fJ'thOWouit. Ha780, 1m)
APPBA.LA:BLB ORDBRS-INTBRLOCUTORyDBCRBB-!NlUNCl'ION IN PA.TBNT OA.SBI.
A decree sustaining the validity of a patent, directing a perpetual injunction against its infringement, and referring the cause to a master to take an account, il an appealable interlocutor, 'decree, within section 7 of the act of Maroh 8, 18111; and on appeal therefrom, the cause, is submitted on the merits without. objectJon,apd a decree is rendered, it is too late for the appellee to que.tion court's jurisdiction bv a motion for
On rehearing. For former report, see 49 Fed. Rep. 61. BeforeP:ARDEE, Circuit Judge, and LocKE and BRUCE, District Judges. PARDEE, Circuit Judge., This cause is,again brought before the court on an applioation fora rehellriog and upon a motion to vacate all proceedings, ha,d in this cause in this court,' and dismiss the appeal herei. for want of jurisdiction, on the ground that the decree of the court below, sought to be reviewed in this case was neither a final decree, from whiohan aplJeal would lie to this court under the sixth section of the judicially 'act, of 1891, nor yet such an interlocutory order or decree that an appeal would lie under the seventh section of the said act. The case:washeard in this court upon the merits without objection on the part of the appellee, and without a critical examination on the part of me court: as to the character of the decree appealed from. In fact, appellee in'bis brief expressly states: , "It is tbe desire'of tbe appellee that this cause be beard upon its merits,
and we do not, therefore. Wish to take advantage of any irregularities which may have occurred in l:!I'il)ging the case up, or of any omission to assign errors. · .· · As tbe case stands, it must be substantially treated as a rehearing at the circuit, and fOl; this reason the argument is more diffusive than it otherwise would be, as it involves a re-presentation of the entire case, without any direction as to special points or findings by the court below."
An examination of the decree rendered by the court below shows that, while it adjudges the vlllidity of the patent sued on and directs an injunction termed" perpetual" against the defendants as infringers, it refers the matter to a. master for taking an account. . It is well settled that such a decree is nota final decree from which an appeal could be taken, or of "hich this court would have jurisdiction, unde:r the sixth section of the judiciary act of 1891. IrQn 0>. v. Martin, 132 U. S. 91, 10 Sup. Ct. Rep. 32, nnd cases there cited. We are, however, of the opinion that it is an interlocutory decree granting an injunction, from which an appeal would lie under the seventh section of the said jud iciary act. . An interlocutbry decree is: "Whentbe consideration of the particular questlonto be determfneil, or the further consideration 'of tbe cause generally, il reserved till a future
hearing." ·l)al1ie11. Ch. Pro (5th Ed.) 986.
".:MI., 4ltlrol1ed,lnld record, it is liable to be altered by the court '8; rehearing. while a decree which has been enrolled is not susceptible to alteration, except by the hOllse ot lords or by bilkof review. 1', :For,ttmJ:rea8oo it ,js that a dpcre6' which has not been enrolled. although It Is, in its a final decree. is considered merely as interlocutory, and cannot be plelll1ed in bar to another suit for the same mlltter'" 14:'X019." '.' ", ., , ' " ' ' ,...,') , " ,
. 'awPia': ;the. ,oonsidered' 8.t some tl1i'l 'ha:ve not laid <lown any satisfactory definItIon of what is an ltinterlocutQry,decree.", It is ,said that the difficulty is in the subject itself, for, by various gradations, the interlocutory decree mat bemade:tio approach the final decree until the' line of :becomes'toofineto,be It is further said that the difficulty has been by the fact that the definition ofr&>finahdeorea ha&often been made,toturn;.not Upon thenatul'& of the:determination",bilt, iupontha constrnctionof, ,the s.tatutes regulating appeals. An·allowance, of, an appeaL from an,ill terlocutory order or deoree,. granting, or continuing an injunction in aneqtiity cause under theeeventli.sBotion of tbe;judiciary act of 1891, isanew featu:\'e of the practice:inthe United Statesoourts.. Being" ofa remedial nature, -it oUght to be :construed so as to give full force to the intention of the lawmaker. The. mischief to be remedied by the act was that injunotions which deprived, parties of the possession and control of property, orl com pelled enforced action'in the use of property, were, under thepractic.e of the courts, frequently rendered long before the. final hearing in the case, and operated, to a great extent, in the nature of execubefore j udgmen t. Twa mischie :waaas great inpatent CRSes, where parties on hl!arings preliminary to the final decree were enjoined pending lQUgand tedious examinations in matter solely of accounting, as in cases of preli.tllina:ry..injunctiop.The ca,se of Ruhmond v. Atjpq?(,l, in fifSt,Hifcuit. and.. rl1POl;ted in 4$ Fed. Rep. 910, was Ii. case on.allfoius.witQ thereinthe,cQurt,took,and question. , The suitWaEI one of patent an appeal was decree. !l\lstain:ing hqlding' the. defendant ,to be an infringer, Tpis JU'risdiction.of the luodei"' the having jurisIlnde,r the &ixtp decree 'in the. circuit court, it \Vop,ld,' seem to! have ,been cOI,Ilpeten,t (<;>1" the appellee W a f?rrnll1 the· this pouft on tQe ments.,. Our IS that 1,11 t418 case. t1)e cllcuit
out objection, it is now too late to question. .a#op, conclUSIons ll.S to novelty of ,Qf tbe court, a. considerwe .ti,pll,norea,sqnto dlSturb our former .oroo. the question ofap1,,;,
pellant's infringement. Our decree, wasperbaps too broad, and should be modified. : . . . . The ordet"ofthe court is that the motion to vacate the proceedings in this cause, and to dismiss the appeal for want of be'denied; that our former decree, remanding the cause, with directions to dismiss the bill, with costs, be, and the same is, modified so as to direct the cause to be remanded to the circuit court, with instructions to dissolve and dismiss the injunction granted in said court; and that apveliee pay the COl:lts, and that the rehearing apvlied for be deuied.
COULLIETTEIt .al. 11. THOMASON It
(Circuit Court of
FV'th Circuit. IUDe .. 1m)
.APPlIn.. 90 CrnCUlT Cot1RT OJ' APP1!ALS-TrMB 0J'Tu:T1fG-DJSHJS84L.
.f .ibedecree .mua' be diswiued, ,under JudwilU'J Ac' 18\11,
An appeal taken to the circuit court of appeals more than sis months aftel'ntr7 S11.
Appeal' from the Circuit COurt of the United States for the Western District of Louisiana. In Equity. Bill by J. Sidney COulliette and others against Mrs. Mary H. Thomason and L. B. Thomason to recover' certain lands and for an accounting. Decree rejecting complainants' demands, and title in defendant Mary H. ThomasQD,.as against them. Complainants appeal. Appeal dismissed. Bo(dner« Ln/flJcin, for appellants. F'ranlt. N. Btl-tier, for appellees. Before PAR.Q.EJ!land !IlCCOluuCK, Circuit Judges, and Loco:, District Judge·
. PARDEE, Circuit Judge. appellees filed a motion to dismiss the appeal in this case because no assignment of errors was filed in the court below,or forms part of the transcript of record. The failure to make an assignment of errors, under rule 11 of the rules of this court, is sufficient ground to refuse to hear counsel, but not, perhaps, in all cases sufIicient to dismiss the appeal. In this case, however, we find, not only of the assignment of errors, but a .lailure to file briefs, and that an examination of the. record does not show any plain error ill the decree appealed from ·. .And we nolice in the record that the decrtle from in the court below was rendered on the 11 th day of that the motion and oruer./or a}JPenl to this court were not made nor granted until September 10, 1891, more than six months alter the date oLthe entry of the decree appealed from; that the order allowing the appeal made the. same returnable more than 30 days after the date thereof; and. that the citation was made returnable more than 30 1la'yl:Jt,berea.fter. Thtl Jact aloue that the apveal was not taken until