BOSTON & A. R.CO. ,. PULLMAN'S PALACE CAR CO.
805
BOSTON
&: A. R.
CO.
et al.
'!1. PULLMAN'S PALACE CAR CO.
(Circuit Court oj Appeals, First Oircuit. August 2,1892.)
No.9. APPEALABLE 'ORDERS PEAL. INTERLOOUTORY DECREE .... PATENTS-CIRCUIT COURTS OIl'
Ap-
In. a suit for infringement of the usual decree for perpetual injunction and accounting was passed after"a full hearing on the merits. More than two months'thereafter defendant petitioned for a,rehearing and dilisolution of the injUl;lCtioll,.. whicb was afterwards denied. Pending this petition tbe circuit court of appeals was created. Held tbat, assuming the decree for injunction and accounting.to be' an interlocutory i1ecree, from which. an appealwonld lie to that l;ourt :within. 80. dlloYS under section 7 of the Bl;t creating it, (Act March II, j Supp. Rev. St. 901,Jyet the order denying the rehearing was not appealable; tor it was :. notan'tnterlocutory decree' or order continuing. an injunctiOl\, within ,the meaning (If that and it.is immateri,al that there was no right of appeal at, the time the, injUnction was granted. '., . ,"
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'Appea1 from the Circuit Court of the United States fot the District of Massach uiletts. Appeal dismissed. CaustenBi'owne, 'for appellants. O.K. O.lfield, Frederic1cP. Fish, ;ahd John S. Runnells, for appellees. Before PUTNAM, Circuit. Judge, I,lPd NELSON and WEBB, District Judges. PUTKAM, Circuit This is a bill.inequity, brought in the circuit court for the district of Massachusetts by the Pullman's Palace Car Company again!!t. :the appeUants, for an alleged infringe,ment of patents owned by the complainant. On the hearing of the merits on bill, answer and proofs, a decree for a perpetual injunction and for an accounting was passed by the circuit court October 9, 1890. 44 Fed. Rep. 195.·. October 11,)890, an injunction writ was issued, as ordered by the decree, and October 13, 1890, the writ was returned duly served. February 26; 1891, the respondents in the circuit court filed a petition fpra a dissolution of the injullction. September 8, 18131, 'aftetthe this court Was approved, the circuit court depetition for a and again, December 1, 1891, the following order was entered: "And now, to wit, December 1, 1891, it is ordered that the petition filed February 26,1891, for dissolution of the injunction herein, be denied." December 28, 1891, the oriKinal respondents filed a petition for an appeal to this court, which was allowed, with an assignment of errors as follows: l"That the court erred in denying the defendants' said petition for dissolution of injunctiqn upon the facts shown in support thereof.. That the order denying the petition for dissolution of the injunction was, in effect, an order cantin uing theinjllnctioll; .and. ,that the court erred in continUing the injuncfacts shown in ",opport of the petition for dissolution thereof." tion upon The IlppeaJ was duly entered in this court.) and the originalc?nlplail1ant, now the appellee, seasonab1y-March 19, 1892-, fil.ed amotion to v.51F.no.7-20
dismiss it, that this court is without lawful jurisdiction thereof. The seventh section of the./acte8tablishingthis court!, If we assume thaton a bill to restrain infringements the usual for a perpetual iftjU'netionand anl 8.coountmg is within the purview of this section, yet it seems demonstrable that this appeal could have been taken. To hold was not seasonable, and, indeed, otherwise ill fact, that,pll-rties m!1f, 30 da>,s expressly limited, by such seventh ,section, within, which appeals may 'be fAken;"tO'gQ,oy, by i(),nlyto be'dismis.sedj and;:itdt>es not affect the reasoning that in caEle,ther8; WAA :otappeal at the, tii;rie tlie injunction Was Without, embarr8!lsing ourselves 'with, discussing ques8\lggested. theeffe,ct'of refusals «1:' parle, or, in 'non, this order; injunction passed atler hearing the merits of the cause and needing no further ao,lion effl,qiency" ·WlNl an order, o,r cree of continuance within the th,estatJ,lte '
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In Equity.i ,BHl,by,theoityot': Boston againstThom8S P. Beal,lis ta:l[8S. on " I" , , ,bill :llQl, fpllllW,I,:, ,",'!'hat upon a ,Ity in ',t 00, ' l' in a,II exI,8t lni clrcUlt, Cllurt" an injunctt6n 8hall be granted. or continualI 1>1 !interlocutory order or decree, in a calise' fl1wbichan ',aapppeal"froma:ftnal be',tak,eh; Ul1de,r,llbe, Prdvl,810,naoft,hia,&Ct, to,t,h"e"clr oW<ti\" ur,' of order or i/;&utlwr ,lWurt. 9t, provided,that. the appeal mU8t betaken' thin tl'l1r\;y day. from the entry of suoh' order or decree and,' It. i AA1te, en,Qll I,D e appellat!), a\J,d, t.heprooeedings in other r6.peets'in' tlie colU:t. belQW ,1I0t, be otliei'wls8 ordered by that llOuri : iul'hig We penaeliC1oUl1ilh l'llpeaL'" , {: : ' , " ,
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