189 F. 611 | U.S. Circuit Court for the District of Southern New York | 1911
There are a number of other cases, in which an application was considered upon the merits without any indication that the procedure was wrong. Tuttle v. Matthews (C. C.) 28 Fed. 98; ComputingScale Co. v. National Computing Scale Co. (C. C.) 79 Fed. 862; Warren Featherbone Co. v. Landauer (C. C.) 151 Fed. 130. No one of these cases is of much authority under the circumstances, as in each the case went off from the point of procedure, but it is perhaps a little strange that in one of them was the point of practice raised, if the practice was not accepted by the bar as proper. However, in Commercial Acetylene Co. v. Avery Portable Lighting Co. (C. C.) 152 Fed. 642, Judge Quarles considered an application upon the merits at length, and although he did not grant an injunction, he said that a new application could be made if the complainant continued to memorialize the trade. There is no indication of what the sanction was to be. Finally in Mitchell v. International Tailoring Co. (C. C.) 169 Fed. 145, Judge Ward denied such an application on the merits, the only doubt which he indicated as to procedure being whether the proceeding should not be by cross-bill, though he in no sense indicated his opinion that it should. Indeed it would seem as though the proceeding could certainly not be by cross-bill unless the matter were germane, which Mr. Justice Blatchford held it was not. Moreover, the decree upon cross-bill would ordinarily be a final decree, which, after term passed, could not be enforced by. further control of the litigation itself, but would bear directly upon the complainant personally by attachment, thus making it jurisdictionally necessary to determine that the cross-bill was germane. However that question may be decided when it comes up, it is not up here because no cross-bill can be filed after publication passed, unless the hearing be upon the depositions already taken, Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250, Gouverneur v. Elmendorf, 4 Johns. Ch. (N. Y.) 357. Here the defendant’s very grievance rose after interlocutory decree entered, and it would be impossible to proceed by cross-bill. I have no doubt of the court’s power at least to control the complainant’s use of the decree to the extent of staying further proceedings and perhaps of reopening the decree itself.
The order will' not contain any provision for its enforcement, but if the complainant disobey its terms, the defendant may apply for a stay of any proceedings under the interlocutory decree, and if necessary that the decree may be recalled. It is not necessary to decide here whether any attachment could issue if these sanctions prove insufficient. I mean only to decide now that, if a complainant misuses