11 F. 303 | N.D.N.Y. | 1882
This suit is brought on the same reissued letters patent, No. 6,531, involved in the suit of Barker v. Shoots, derided herewith. The defendant in this suit is the same person who was defendant in the suit of Barker v. Stowe, 15 Blatchf. 49, brought on the same patent. By stipulation the testimony in the suit against Shoots and in this suit was taken simultaneously, and it is all of it entitled in both- cases, and it is stipulated that the evidence in one “shall be good for both.” -The decision in the case against Shoots disposes of all questions in this case except that of infringement, and a question as to the former suit against Stowe.
The answer sets up that the defendant’s buckets are secured to him by letters patent granted to him, No. 160,125, dated February 23, 1875. The defendant’s bucket in the present case, “Lovell Exhibit No. 2,” is precisely like the one .described in the decision in the former suit against him as the one alleged there to infringe. It is clearly an infringement of claims 1 and 2 of No. 6,531.
The answer sets up that in 1876 the plaintiff filed a bill in this court setting up the same matters and cause of action as are contained in this bill; that the defendant appeared on process and answered the bill, setting up the same matters previously set up in this answer; that a replication was put in; that evidence was thereafter taken in said suit; that the cause was heard on the merits, on pleadings and proofs, at the June term, 1878; that in July, 1878, the court made a decision determining that the said patent, No. 6,531, was void for want of novelty, and that the bill be dismissed with costs; that the defendant refers to said bill, answer, replication decision, decree, and judgment record in said former suit; that said court had jurisdiction of said cause, the parties thereto, and the subject-matter tjiereof; that said judgment and decree are valid, and remain in force; that the right of the plaintiff to the relief‘sought in that cause was duly passed upon and adjudicated; and that the plaintiff is estopped by said former judgment and decree from asserting the same in this cause. This answer was verified March 27, 1880.
The record of the defendant’s testimony, under date of November, 24, 1880, contains an entry that the defendant offers in evidence a certified copy of a decree in said suit against him, and also the opinion of the court in said suit, marked Defendant’s Exhibit 5; and that the plaintiff objected to the same as immaterial, and because the
This case, though argued orally at the Juno term, 1881, awaited the submission of printed briefs by the respective counsel. The plaintiff’s brief was submitted to the defendant’s counsel in July, 1881. It took the ground that no decree had ever been entered upon the former suit; that there was no judgment or decree therein against the plaintiff when he commenced this suit, and none since; that no part of the record in the former suit had been put in evidence, nor had a copy of the decision rendered in the former suit been produced in this suit; that the defendant must, therefore, be
Meantime the defendant’s counsel had submitted his printed brief in this case,. asking in it that a decision in this case be withheld until the decree in the former suit could be perfected and become a part of the evidence in this ease. The plaintiff’s brief in reply was put in, and suggested that the defendant had stated that he should not get a copy of the record in the former suit to file as an exhibit, because he had spent as much money as he was going to spend in the matter. A certified copy of the enrolled decree was sent to me, but I informed the defendant’s solicitor that he must apply, on notice, to
Many affidavits on both sides have, since the October term, been furnished to me, directed to the question as to whether the defendant had said that he would spend no more money in defending the suit, leaving the common defence to be carried on by the defendant in the Shoots (Jase, and as to whether he had intentionally refrained from having the decree in the former suit entered. It seems strange that the decree was not entered. Yet the answer of the defendant, sworn to by him in March, 1880, and signed by his solicitor, not only speaks of a decision in the former case dismissing the bill therein, but refers to the decree and judgment record therein as having been made, and as existing, and as being an estoppel in this suit. In view of this the plaintiff went on to take proofs in this suit; and in the plaintiff’s opening proofs, in June, 1880, the former suit was mentioned by him, as a witness, as a suit which had been dismissed, and his counsel then and there gave notice on the record that he would produce the original of the records on which the bill in that suit had been dismissed. Afterwards, when in the defendant’s proofs the entry was made that a certified copy of a decree in the former suit, and of the opinion of the judge therein, marked Defendant’s Exhibit 5, was offered in evidence by the defendant, (though no such papers were then produced or marked,) the plaintiff did not object to the making of the entry because nothing was produced, and did not allege that there was no decree, but objected because the proofs were not offered on which the decision bad been based. Afterwards, when, in the plaintiff’s proofs, the defendant gave notice that be would read and produce on the hearing the judgment roll, decision,
In Silsby v. Foote, 20 How. 290, 295, the supreme court held that the pronouncing of a decision by a circuit court and- its entry in the minutes, where the judgment or decree is a simple one, “such as an affirmance or reversal and the like,” constitutes a decree from which an appeal may be taken to that court. Here the decision in the former.suit was a dismissal of the bill. The decree signed in the former suit states that that was the' decision, and that it was made and filed July 11, 1878.
The decree in the former suit must be regarded as having the date of July 11,1878, and the question is as to whether it is a bar to this suit. It is properly set up in the answer. The suit was between the same parties and founded in infringement of the same patent. The bill in the former suit asks for profits and damages from the date of the reissue, and for treble damages, and for a perpetual injunction. The bill in the present suit makes the same allegations and asks the same relief. The issue of the inability of the plaintiff to recover in the suit because the invention claimed had been anticipated, was tendered by the answer in the former suit, and was found in favor of the defendant, as appears by the decree. That issue cannot' be again tried between the parties. If in the former suit that issue had been found in favor of the plaintiff, it could not have been again tried in this suit; and in. this suit nothing would have been open but the question of infringement, if the bucket claimed to infringe were different from the infringing bucket in the former suit. Within the principles laid down in Cromwell v. County of Sac, 94 U. S. 351, and applied by this court in Smith v. Town of Ontario, 18 Blatchf. 454, it must be held that this suit is barred by the decree in the former auit.
A decree will be entered granting the defendant’s motion and dismissing the bill, with costs.