211 F. 544 | N.D. Ohio | 1913
The defendants have filed a petition for a rehearing, praying in part that ‘the decree for infringement against them be set aside, pending the hearing.
This petition for a rehearing is sworn to, and is accompanied by affidavits setting forth certain newly discovered evidences relied upon by the defendants.
“Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person.”
Rule 18 (198 Fed. xxiii, 115 C. C. A. xxiii) provides:
“Unless otherwise prescribed by statute or these rules the technical forms of pleading in equity are abolished.”
And rule 19 (198 Fed. xxiii, 115 C. C. A. xxiii) provides, in part:
“The court, at every stage of the proceeding, must disregard any error oi defect in the proceedings which does not affect the substantial rights of the parties.”
Rule 34 (198 Fed. xxviii, 115 C. C. A. xxviii) provides for the filing of supplemental pleadings in the cause.
Rule 46 (198 Fed. xxxi, 115 C. C. A. xxxi) provides in part:
“In all trials in equity the testimony of witnesses shall be taken orally in open court, except otherwise provided by statute or these rules.”
It would seem to be the spirit of these new equity rules that they were drawn by the Supreme Court with the intent of leaving the judge 'free to adjust matters in the interests of substantial justice, as he sees it, unhampered by precedent and by technical definitions and distinctions. So the important question to decide is as to the fairest and best method of raising the questions to be decided on a petition for a rehearing.
It is apparent that the present petition for a rehearing is based largely on the ground of newly discovered ■ evidence.' That such a proceeding is a proper one is recognized by the courts. The contention ra’sed by counsel for the complainant is supported by the case of
■ A like petition was later filed in Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267, in which the court said:
“The present application, if maintainable at all, should properly, in its prayer, be for leave to file a supplemental bill, to bring forward the new evidence, and for a rehearing of the cause at the time when the supplemental bill should also be ready for a hearing.”
This practice is recognized as the correct practice in Gillette v. Bates Refrigerating Co. (C. C.) 12 Fed. 108; Deitsch v. Staub, 115 Fed. 309, 317, 53 C. C. A. 137; Foster’s Federal Practice (3d Ed.) § 352, p. 783; Walker on Patents (4th Ed.) § 647, p. 501; Daniell’s Chancery Practice, 1537.
Inasmuch as the petition for a rehearing is not an ex parte proceeding, counter affidavits may be received by the court in order that the court may be fully advised as to whether or not due diligence was indulged in by the petitioning party, and whether or not the evidence sought to be introduced was material. Walker on Patents, § 647; Simpkins, A Federal Suit in Equity, p. 623; Blandy v. Griffith, Fed. Cas. No. 1,530; Albany Steam Trap Co. v. Felthousen (C. C.) 26 Fed. 318; Celluloid Mfg. Co. v. American Zylonite Co. (C. C.) 27 Fed. 750; Munson v. New York (C. C.) 11 Fed. 72; New York Sugar Co. v. American Co. (C. C.) 35 Fed. 212.
In the case of Willimantic Linen Co. v. Clark Thread Co. (C. C.) 24 Fed. 799, the court held:
“The court has power to open the same and allow a new defense on motion, and without the formality of a bill of review.”
In this case there was an interlocutory decree and no final decree. The court further stated that any such an—
“application * * * for a rehearing, on the ground of newly discovered evidence * * * must be supported- by the same sort of proof as the court requires in order to give party relief upon a bill of review, or a supplemental bill in the nature of a bill of review, after a final decree.”
Inasmuch as rehearings are granted only upon such grounds as would authorize a new trial in an action at law, that is, for newly discovered evidence, or errors of law apparent upon the record, it would seem to be a proper course of procedure in the filing of a petition for a rehearing where only an interlocutory decree has been entered, and there has been no appeal taken to the Circuit Court of Appeals, for the party seeking a rehearing to file its petition with the clerk of the court, and if he relies upon newly discovered evidence, he should set forth this evidence in the bill as far as possible in the petition for rehearing, and, in any event, in affidavits filed with the petition for rehearing and accompanying it. After filing this petition for a rehearing and the affidavits, he should then obtain an order upon the adverse party to show cause at some later date why his prayer for a rehearing should not be granted. The adverse party may then answer the petition for a rehearing, and upon the petition and-answer the application may be heard. If the application for a rehearing is granted, then the petitioning party would be required to file'either a supplemental bill or answer, as the case might be, in order that the hearing might be had on the original bill and answer and on the supplemental pleadings.
The petition for a reh^oring which is sought to be stricken from the files seems to fully and fairly comply with this requirement, and the accompanying affidavits to fully set forth the evidence relied upon.
The motion to strike from the files will accordingly be overruled.