McCall Co. v. Bladworth

290 F. 365 | 2d Cir. | 1923

MAYER, Circuit Judge

(after stating the facts as above). It is contended by counsel for appellee that the case should have been brought here by writ of error instead of appeal. In view of section 4, chapter 448, Act Sept. 6, 1916, 39 Stat. 727 (Comp. St. § 1649a), noted in the margin,¹ we need not pause to determine whether the method of appeal was Correct, because, in our view, there is no question of fact involved.

As to Warfield and Bladworth: The order is a final order, and properly here, whether regarded as a review by appeal or writ of error.

The District Court, having found Bladworth and Warfield not guilty of contempt, and having dismissed the proceedings as to them, had no power whatever to order a reprimand. In contempt proceedings, the court has wide latitude in respect of punishment, but plainly no punishment can be administered unless the person upon whom it is attempted to visit the punishment has been found guilty of contempt.

The infliction of a reprimand upon Mr. Warfield was contrary to procedure settled in this circuit. In re Kahn, 204 Fed. 581, 123 C. C. A. 107. We shall not, however, dispose of the case merely on a point of procedure. The court, of course, has power to discipline an attorney for unprofessional conduct, even though the acts done may not technically be contemptuous. A member of the bar is properly sensitive of his reputation, and a lawyer with the proper conception of his duty to the court naturally feels keenly the effect of an undeserved reprimand.

We therefore deem it proper to state 'that the acts done by Mr. Warfield on behalf of his -client were strictly within the rights of his client and himself, and in no way open to criticism from a professional standpoint, and there was neither jurisdiction nor occasion to reprimand either him or his client in any manner whatsoever.

As to Laub: In view of the fact that Laub was a citizen and resident of New York, process could not be served upon him, and the court could not gain jurisdiction as to him. Munter v. Weil Corset Co., Inc., 43 Sup. Ct. 347, 67 L. Ed.-, decided February 26, 1923. The jurisdictional point was taken by his counsel;' but appatently counsel also argued on the merits. The courtroom scene is not difficult to visualize. The quite unusual situation had arisen that a person brought into a jurisdiction by a subpoena ad testificandum found himself confronted with a contempt proceeding, and naturally, while endeavoring to preserve the jurisdictional point, his counsel, as matter of respect, hoped to convince the court on the merits that no contempt was committed. The situation was embarrassing, both for the lawyer and his client, although it is but fair to state that the court .did not seek to deprive Taub of his jurisdictional point, but, on the contrary, suggested that it be preserved. While the order, quoted supra, is in this respect somewhat confused, we are satisfied that it preserved the jurisdictional point, as the court intended it should. This being so, it is plain that the court was wholly without jurisdiction to entertain any contempt proceeding against Tauh.

In order, however, that this branch of the controversy shall also be ended, brief ’reference may be made to the rights of Taub on the merits. The affidavit of Warner fails to set forth any fact whatsoever showing that Taub was the agent, servant, or employee of Bladworth. In the proceedings brought against Bladworth, Warfield, and Templeton, an affidavit of Taub was interposed. This affidavit sets forth, inter alia, that Taub was the owner of a one-half interest in the patents; that he had his own counsel, upon whose advice he acted: that he was informed that the court bad approved a form of notice of infringement which might be sent out by Bladworth; that he was pot the agent, servant, or employee of Bladworth; and that what he did on his own behalf was in pursuance of. what he understood to be his right.

When Taub sent out his own circular of March 28th, he was acting wholly within his rights. He was not a party defendant to the suit which had been brought against Bladworth, and the injunction against Bladworth did not and could not run against another owner of an interest in these patents; nor could Tauh be affected by the stay obtained by plaintiff’s solicitor pending appeal from the order approving the form of the infringement notice. The principle is the same, whether applied to patents, land, or any other kind of real or personal property. Hanley v. Pacific Live Stock Co., 234 Fed. 522, 148 C. C. A. 288. If the Taub circular was deemed by plaintiff to be offensive, then plaintiff should have commenced an appropriate suit against Taub in the proper jurisdiction. As the injunction did not and could not run against Taub, but was directed only against Bladworth, his agents, servants, and employees, and as Taub was none of these, the court, even had it possessed jurisdiction otherwise, had no jurisdiction whatever to entertain the proceedings to punisb for contempt.

The order is reversed, with costs to each appellant.

1 Section 4, chapter 448, Act Sept. 6, 1916, 39 Stat. 727: “Dismissal for Use of Wrong Remedy. — No court having power to review a judgment or decree rendered or passed by another shall dismiss a writ of error solely because an appeal should have been taken or dismiss an appeal solely because a writ of error should have been sued out, but when such mistake or error •occurs it shall disregard the same and take the action which would be appropriate if the proper appellate procedure had been followed.”