ANDREWS V. THUll.
"be deemed· citizens of the states in which they are respectively located, and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state." Under the first of these acts it was held that a suit can neither be brought in nor reo moved into the United States courts unless a similar suit could be .entertained by the same court by or against a state bank in like t'lituation with the national bank,· and that under that law nothing in the way of jurisdiction could be claimed by a national bank be.cause of the source of its incorporation. Bank v. Cooper, 120 U. S. 778,7 Sup. Ct. 777. It is clear that, in order to confer jurisdiction, the diverse citizenship of the parties to the suit must appear by the record, and this cannot be waived. This has been so often declared by the supreme court as now to be elementary. The jurisdiction .need not necessarily be averred in the pleadings, if it otherwise affirmatively appears by the record. Railway Co. v. Ramsey, 22 Walt 322. We have therefore searched the record to discover if jurisdiction might be saved, and the case decided upon its merits. We find, however, no evidence of the citizenship of the plaintiff in error. He states in his testimony that he lives at Aurora, TIt; but "residence" and "citizenship" are not synonymous terms. Robertson v. Cease, 97 U. S. 646; Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154; Anderson v. Watt, 138 U. S. 694, 702, 11 Sup. Ct. 449; Timmons v. Land Co., 139 U. S. 378,11 Sup. Ct. 585. We have been asked, in case we should be compelled to reverl!e this judgment upon this ground, to remand the case with leave to amend the declaration to show jurisdiction conformable to the facts. This we are authorized to do by Robertson v. Cease, 97 U. S. 646, 651. The judgment will be reversed for failure in the record to disclose jurisdiction, with direction to permit amendment of the dedaration in the assertion of jurisdictional facts, and to award a new trial
et at v. THUM et a1.
(Circuit Court of Appeals, First Circuit. June 23, 1894.) 1.
APPEAL-WHO MAY TAKE.-PERSO:NS CONDUCTING DEFENSE.
In a suit for infringement of a patent, brought against vendors of the alleged infringing articles, the manufacturers assumed and carried on the defense, pursuant to a contract with the nominal defendants to carryon said defense to final judgment. Held, that they had a right to appeal from a final decree without the special consent of the nominal defendants. In a suit for infringement of a patent, brought against vendors of the alleged infringing article, the manufacturers assumed and carried on the defense, and, after entry of an interlocutory order for an injunction and an account, moved to reopen the case and dissolve the injunction, for reasons touching the merits. Pending the motion the nominal parties caused to be entered a final decree for a sum settied between them as damages. The motion was subsequently heard by the court on its merits and denied. Held, that the motion must be held to be in effect a vetitlonfor a
SAME-TIME OF TAKING-PETITION FOR REHEAlUNG.
time ,to appeal from. the, decree l'at1' not from the entry oftha
:' ." ; ' , -'
1';:: _ ,_
Thltt'the .Citation waS'S¢rved less titan SO dllYS before the. 'return day Is 'tiQit gtol1nd for dismissing the appeaJ.,notwithstandlng Rev; St. § 999. 4. SAM'E"'""TrMllfoF' FiLINGREOORD-DlSMlSllAL. . was not filed In the, appellate court by pr, before the retul'p Q.a,yr alld ,an enlargingtlhetiJ¥e for tiling It, WIlS not made until a,fter tllat day, is for appeal, where' the'teeQrd.'has filed, and the cause docketed, before, we motion tOdlsIliilil$ 'is made. '
5.SdJiA,liMoTWN TO DISMISS.
fOr C9mplllJnantSJn:IVSult for.1nfringemelltof a patent, interesteqjip tQE! awealed in the tfie nominal CompllJ.inants mQved to dismiss the a:bPeatfOr'the reaspns,(',besldes that the llSsignment of errors based upon a'p8.tent not setup in the answer; thattheappeat Wl\S 1m', to appeail'tl'om a dedsion of the court below' refusing a , decl'ee, ' for a, ,rehearlQ.g, asked for upon s'a:#il!: th!J merits, .aD;d a matter . t;hat appelll\Dts were from appealing from the final :;ilOOilYee,.· ithav:ing ,been agreed upon '. by stipulation between complal:ntmw; and. thE! defendants, lind the damages assessed by such been paid; that they ;were estoppedtherefrom,also, by, 'faUed1;o the Interlocutory decree, which granted, an 30 q.ays allowedJlierefor, and by the ihe amount of, the finllidecree; and that'they had not acted In good faith, 8J;Id hAd todefllaud the noJliinltl'defendants by otIering to sup-' ,be paid them ,by complainants. Held, ;not groullds .for being, so far au! pel:tlnen.'t,'!i.pprtlpfiate' only' to the helldng 6n the merits; ,
;<uf',1 , 't;Y' ,:","
Appeal>lrolllhthe Circuit-Doun of the United States for the DistrictiQf Massa:Chusetts. This, :was: ,aJsuit by Otto Thum and others against John A. Andrews aJidi':otherfll for infringement of.Jpatents No. 278,294 and No. 305,118, issued to said Otto Thum, for fly paper. The alleged infringement consisted in the sale by defendants of fly paper manufactured by Benjamin F. B. Willson, carrying on business under the name of Willson & OoV 'Upon comp131nants' threatening suit against defet;J,4ants for infringewent, John W. F. Willson and said Benjamhi F. B. Willson had entered into an agreement with defendants that, in case any suit shoUld be brought against defendants for letters patent by the use or sale of S'Uch fly papeJ,', would the defense of said suit, and carry on.the::same to, final judgment 'at their own sole expense, and, in caseplaiI1 tlffs $heuld succeed in any such suit, said Willsons that. be orc;1ered· or adjudged to pay as'damages, profit's; or cost of suit. In accordance with this and carried on the defense of this suit. The, circuit court rendered an interlocutory decree for complainants iOlf'Feb ary7,U1893. 53 Fed;· 84. On May 6, 1893, the the case, for the tea-thIrd party, alleged to be precisely,similar to complainants' patent" and a motion to dissolve the On May 13, 1893; on astipul'ation by complainants,
ANDREWS 'lJ. THUM.
and the nominal defendants consenting thereto, a final decree was entered for complainants for $2,500 as damages and profits and as costs of suit, and on May 15, 1893, complainants acknowledged satisfaction thereof. On June 23, 1893, the motions to reopen the case and to dissolve the injunction were heard and were denied. 1'he Willsons filed a prayer for appeal and an assignment of errors on November 17, 1893. 1'he appeal was allowed on February 5, 1894, and on .the same day, the bond on appeal having been approved, a citation to complainants was issued, returnable March 1,1894. The citation was served on February 21, 1894. On March 5, 1894, an order of the circuit court of appeals was made, enlarging the time for docketing the cause and filing the transcript of 8, 1894, record to March 9, 1894. The order was filed on and the record was filed and the cause docketed in the circuit court of appeals on March 9. 1894. On March 20, 1894, complainants filed a motion to dismiss the appeal, as follows:
"Now come the appellees (complainants in the court below), and move to dismiss the appeal in the above-entitled case for the following reasons, to wit: (1) Because the record was not filed 'in this court on or before March 1st, the return day· of the citation. (2) Because the orders of his honor, Judge Colt, extending the time for the filing of the record to March 7. 1894, at four o'clock p. m., and further extending such time to March 8. 1894, at 12 o'clock noon, were without authority of law, and are therefore void, because (a) the orders were entered after the return day of the citation, and the motion was made after the record shoUld have been filed In the court above; (b) appellees' right to docket and dismiss under rule 16 of this court had attached, and could not be divested without a hearing; (c) said orders were entered without notice to parties or argument; Id) under the statute constituting this court (sec. 11), the rules and practice on appeal of the supreme court of the United States are made applicable, and the court has no authority to vary from such practice where it is established. (3) Because the parties moving for this appeal are not parties to the cause, and have no authority to appear herein. (4) Because the parties defendant, nominal appellants and necessary parties in this court, did not institute these proceedings, and are not joined in the appeal or in the appeal bond. (5) Becausr) no petition has been presented, by the parties mOVing for this appeal, praying leave of court to intervene. (6) Because no petition or order of severance has been filed in the court below. (7) Because the assignment of errors filed in this cause is based upon a patent not set up in the answer. (8) Because this appeal is an attempt to appeal from the decision of the court. below refusing a rehearing, the petition for rehearing having been based upon the same patent without amending the answer; and the rehearing, having been refused upon the merits and being a matter of discretion, is not subject to appeal. (9) Because, upon the final decree entered in the court below, appellants in this court (defendants in the court below) are estopped to appeal. inasmuch as the decree agreed upon by stipulation has been executed, and the damages assessed by agreement have been paid in full, and such damages, having been paid under a decree, cannot be recovered. (10) Because the citation was not served the statutory time before the return day of the writ. (11) Because, by section 7 of the act creating the circuit courts of appeals, the interlocutory decree was appealable within thirty days of Its entry, and appellants elected not to appeal from the decree granting an injunction, and, having paid the amount of the final decree, are therefore estopped. (12) Because the parties bringing this appeal have not acted in good faith, and have attempted to defraud the defendants in the court below, nominal appellants in this court, in this: that they offered in writing to suppress all evidence in their possession affecting the validity of the letters patent in said hearing, for a valuable .,consideration to be paid them by the complainants, as evidenced by. the
FEDERAL REPORTER', ,"01.
J. JobristQJl' and Otto and, William Thum, hereunto anfUl<l exhibits leave to uRpn, tPe:' argument of this motion. For 11,11 of reasons appellees 1 PraY. that this appeal be disII).issed, with the costs to the appellants, and pray leal'e' to refer to the accOmpanying . referred to therein in support of. ,Ws, their motion.": .
Theaffida'rits to in this motion Contained averments tending,whh the exhibits annexed, to estabFsh'the charges made in the of the reasons therein stated for dismissing the appeal. JohnM. Perkins, for appellants. Thomas J. Johnston, for appellees. Before PUTNAM, Circuit Judge, and WEBB, District Judge. Circuit Judge. This is a motion to dismiss an appeal ill. a patent cause. The bill was brought against the vendors of the alleged infringing article. With the consent of the nominal defendants, the manufacturers assumed and carried on the defense in the circuit court, so that the ultimate result, when reached, will constitute res adjudicata as against them. After the manufacturers had so far embarked in the defense as to involve essentially their own interests, the permission to conduct it became irrevocable, unfailed to conduct it properly, or to give indemnity or complYWith other reasonable termlil, if asked under proper circumstances. There is no suggestion in the record calling for the consideration or application of. any of these qualifications. An interlocutory order tor an injunction and an account was, after atrial on bill, answer, and proofs, entered February 7, 1893. Thereupon, the manufacturers, who were defending, filed, May 6, 1893,11. motion to reopl:!n the case and dissolve the injunction, for Meanwhile, without consulting the reasons touching the manufacturers, the nominal parties caused to be entered May 13, 1893, a final decree, as follows:
"1:iJ.asmllchas it appears that the parties. have settled the money payments ordered by the interlocutory decree, it is hereby ordered, adjudged, and debe waived, and that defendants be ordered to creed that reference to a pay to the complainants the sum of $2,500 as' damages and profits to be recovered by the complainants of the defendants herein, and as costs of suit."
On the23d day of June, 1893, the court heard on its merits the motion filed May 6, 1893, and denied it. This left the injunction in full force, and, so far as concerns it, a judgment which binds the unless reopened on appeal or otherwise. The manufacturers. took this appeal in the names of the nominal defendants within sixII10nths from June 23, but not within that period from May )3, 1893. The objection based on the. time within which was is met, hi every phase, by Seagrist v. Crabtree, 127 U. S.· 773, '8 Sup. Ct. 1394. The motion filed May 6, 1893, and heard after the entry of the decree of May 13, be regarded as in effect the same as a petition fo'r a rehearing, filed after judgment, under our rule 29. It was heard on its merits without objection, and can have'
no other possible effect. It was entirely lacking form, but in the federal courts, when substance is preserved, defect of form is easily waived, as was done in this case. Holding the proceeding to have operation under 29, the appeal was seasonably taken. Smelting Co. v. Billings, 150 U. S. 31,14 Sup. Ct. 4; Voorhees v. Manufacturing Co., 151 U. S. 135, 14 Sup. Ct. 295. That the appellees have mistaken the application of the rules of this court touching the time of filing the record has been settled since Owings v. Tiernan, 10 Pet. 24. The right of the manufaoturers to take this appeal without the special consent of the nominal defendants is denied. That, under the circumstances, justice requires that they should be allowed to take it cannot be disputed. We need not determine whether the right to take an appeal is ordinarily implied in a general authority to defend, under the circumstances of this case, because here the formal contract between the nominal defendants and the manufacturers obliged the latter to carry on the defense to "final judgment," and after the manufacturers became involved in the litigation, and needed to protect themselves, as well as the nominal defendants, their rights were necessarily concurrent with their liability. "Final judgment," in this agreement, evidently means a determination by the ultimate tribunal; otherwise, the ,manufacturers might unjustly have left their customers to their own fate in an appellate tribunal, which would be contrary to the spirit of the contract. The other points made on the motion to dismiss, so far as they have any pertinency, are appropriate only to the hearing on the merits. Motion to dismiss denied.
BALTIMORE TRUST & GUARANTEE CO. v. MAYOR, ETC., 011' OITY OF BALTIMORE. (Circuit Court, D. Maryland. November 13, 1894.) L MUNICIPAL CORPORATION-CONTRACTS. Municipal corporations, invested with full power to control and regulate the use of their streets, do not exceed their powers In making, by ordinance, Irrepealable contracts, not exclusive In character, for the use of such streets for purposes of publlc comfort and convenience.
CONSTITUTIONAL LAW- IMPAIRMENT OIl' CONTRACTS TION. MUNICIPAL CORPORA-
A legislative grant, made either directly by the legislature, or Indirectly, through a municipal corporation duly authorized so to act, and accepted by the grantee, constitutes a contract, the terms of which cannot be altered, without the mutual consent of the parties, except as the right to repeal or alter is reserved in the enactment itself, or existed In constitutional or legislative' provisions; and an impairment of such a contract by a law of the state passed by the legislature, or by a municipality authorized by ft, or acting under a statute supposed to give the power, Is a violation of section 10, art. 1, of the constitution of the United States. The city council of B., whose general powers Included the power to p.xercise full control over the streets of the city, and regulate their use by railway tracks, passed an ordinance granting leave to a street-railway company to construct tracks in certain streets, including a double track inL. street, upon certain conditions to be· performed by the company, which ordinance was accepted by the company. Subsequently, the