135 F. 534 | 2d Cir. | 1905
We find it unnecessary to discuss the other questions arising upon this appeal, because we are satisfied that complainant has not proved any act of infringement committed by the defendant. The bill is entitled “National Casket Company v. Julius W. Stolts,” and recites that complainant “brings this, its bill of complaint, against Julius W. Stolts, who is, as your orator is informed and believes, the president and treasurer of a joint-stock association organized under the joint-stock association law of the state of New York, having at least eight stockholders,
Manifestly, this is not a bill of complaint against the joint-stock association. Stolts is averred to be the president thereof, but he is not sued as president. The bill is against him individually. And the suit has been conducted as one against him individually. The answer is by “Julius W. Stolts defendant.” It denies that he has committed the acts of infringement charged, and as to the interrogatory above-quoted contains the following clause: “And this-defendant states that the interrogatory relating to J. & J. W. Stolts being immaterial so far as this defendant as a party to this suit is concerned, and impertinent and not relevant to be answered unto by him, the said J. & J. W. Stolts not being parties hereto, this defendant declines to answer said interrogatory.” At the taking of testimony counsel appeared “for defendant,” and the final decree is entitled as the bill was, and recites that the dismissal is “on motion of solicitors for the defendant.” The only act of infringement shown is the sale of a burial casket by J. & J. W. Stolts, a joint-stock association, at their place of business in New York City, on October 15, 1901. It was proved that the joint-stock association was organized January 27, 1896, that the number of its stockholders was eight, its place of business in New York City, and that Julius W. Stolts was in January, 1901, its president and treasurer. It was admitted by the defendant’s counsel that at the time of the commencement of the suit in October, 1901, the defendant was such president and treasurer. It does not appear that the statutes of New York require that the president or treasurer of a joint-stock association should be a shareholder therein, and there is no proof in the record that defendant is, or ever was, a shareholder or associate in such joint-stock association. In Tyler v. Galloway (C.
Complainant seeks to cure the defects in the record in either of two ways: First, he asks that, in the event of this court’s being satisfied that the patent is valid, and that the casket sold by the association infringes its claims, the cause be remanded, with instructions to the Circuit Court to allow complainant to amend so as to aver that Stolts was a stockholder, and to reopen the cause so as to allow him to prove such amendment. No authority disposing in such way of a similar situation has been called to our attention, and such disposition would be fruitful of abuses. If relief were granted in one cause,-it might be fairly claimed in another, and so whenever upon analysis of a record on appeal this- court might reach the conclusion that the complainant’s proof was not sufficiently convincing to show an act of infringement by defendant, a motion would be at once made to reopen the cause so as to give complainant a chance to make his case stronger. Such practice should not be encouraged.
The complainant next asks to amend the bill and the. subpoena by adding after the name Julius W. Stolts the words “as president and treasurer,” etc. This amendment would bring in a new party, not a merely formal party, who has no interest in the controversy, or one through whom some party already in derives title. It would be an attempt to substitute one person for another as defendant in an action on tort after judgment. No authority cited by complainant warrants the granting of such extraordinary relief, and if it were granted it would avail nothing. Amendment of the subpoena would not bring in the new person until that person be served with it; and, when served, such person, who has not yet had any day in court, would be entitled as of right to answer, to cross-examine, and to put in proof. This would amount to an entire retrial of the action, and it is quite as easy and far more orderly to begin a new one.
The motions to reopen and to amend are denied, and the decreé of the Circuit Court is affirmed, with costs.