Hodgson v. Vroom, 266 F. 267

Hodgson v. Vroom

266 F. 267 | 2d Cir. | 1920

HOUGH, Circuit Judge

(after stating the facts as above). [1] The single question of law presented by this appeal is whether the District Court, or this court, or both, is bound by the decree entered in Chicago in 1902 to grant preliminary relief; it is not asserted that the decree against Mansfield and Palmer is res adjudicata as against this present defendant.

The matter might be disposed of by pointing out that, whatever may be the effect of the Chicago decree so far as the District Court is concerned, it does not in the least hamper the power of this court. Cf. Victor, etc., Co. v. Starr, etc., Co. (C. C. A.) 263 Fed. 82; Thomson-Houston, etc., Co. v. Hoosick, etc., Co., 82 Fed. 462, 27 C. C. A. 419; Baldwin v. Abercrombie, etc., Co., 228 Fed. 897, 143 C. C. A. 293. The question as to what the District Court should do (not what it could do) under ^circumstances like the present depends upon the inquiry whether the Chicago decree of 1902 was or was not a “consent decree.”

[2,3] The nature of consent decrees and something of their history are learnedly- set forth by Hammond, J., in Kelly v. Milan (C. C.) 21 Fed. 862 et seq. (the affirmance of this case in 127 U. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 97, does not touch this point). The distinction between a decree in common form and a consent decree is the difference between a consent to submit a case to the court for decision and a consent as to what the decision shall be. When there is a consent as to what the decision shall be, the decree is a “mere agree*269ment of the parties under the sanction of the court, and is to be interpreted as an agreement.”

A decree on consent is not appealable, in the sense that no errors will be considered which were in law waived by the consent given. United States v. Babbitt, 104 U. S. 767, 26 L. Ed. 921. Therefore nonappealability is not only an incident to a consent judgment, but one of the indicia of the nature of the decree entered.

Tested by these rules, the decree in Gross v. Mansfield was plainly a consent decree upon its face. The moving papers before us contain a good deal of information or suggestion as to why the Chicago litigation ended in an agreement of parties, after a rather lengthy and probably expensive proceeding before the master in chancery; but we need not consider these matters. The record — i. e., the decree as entered — speaks for itself.

[4] It is quite true, as urged by appellant, that there is close analogy between actions under the patent laws and suits upon copyright (Scribner v. Straus [C. C.] 130 Fed. 389), and great stress is laid upon that long line of decisions holding that decrees in patent causes are entitled to great weight, when subsequent action is brought on the .same patent: against other alleged infringers. But this proper rule is one of comity, which may persuade, but cannot compel. Mast, etc., Co. v. Stover, etc., Co., 177 U. S. 485, 20 Sup. Ct. 708, 44 L. Ed. 856. There is great power' of persuasion in a procession of consent decrees, as evidencing public acquiescence in the plaintiff’s asserted right; hut there is no legal compulsion in any consent decree, because the judicial action is no more than a registration of the will of the parties. National, etc., Co. v. New England, etc., Co. (C. C.) 123 Fed. 6, 436. It follows that the lower court was entirely justified in examining anew the interesting inquiry whether the Frenchman, Rostand, in or about 1896, pirated the literary work of Mr. Gross, of Chicago. On this literary question it is sufficient to say that we entirely agree with the District Court.

The order appealed from is affirmed, with costs.