Farrow v. Eclipse Bicycle Co.

18 App. D.C. 101, 1901 U.S. App. LEXIS 5042

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 2, 1901
• Docket: No. 1034
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

Two questions are raised by the assignments of error: (1) Whether the adjudication of this court on the former interlocutory appeal is so far conclusive and binding on the lower court as to preclude the reopening of the cause upon any ground or for any cause whatever; (2) "Whether, if such adjudication does not preclude the reopening of the cause, the action of the court below was a proper exercise of its discretion in the premises. Of course, if the first of these two questions is to be answered in the affirmative, the second will not require consideration.-

W'e understand it to be conceded, and upon principle and authority it must be conceded, that, after a final decree affirmed on appeal, with a remand of the cause to the lower tribunal for such proceedings as may be necessary or proper to carry such decree into effect, the lower court is without jurisdiction to do anything in the cause except such proceedings as are contemplated in the mandate which remands the cause. The litigation has become res judicata, and it is no longer competent for the lower court to reopen it, for the purpose of amendment of the pleadings, introduction of new testimony, or for any other purpose. The authorities are believed to be unanimous on this point. We need only refer to the decisions of the Supreme Court of the United States in regard to it. Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736; Southard v. Russell, 16 How. 547; Smale v. Mitchell, 143 U. S. 99; In re Washington & Georgetown RR. Co., 140 U. S. 91; Hickman v. Fort Scott, 141 U. S. 415.

In the case of Stewart v. Salamon, 97 U. S. 361, the Supreme Court of the United States, by Mr. Chief Justice Waite, said:

“ This is an appeal from a decree entered upon our mandate. No complaint is made as to its form, and lit seems to be in all respects according to our directions. The effort of' the appellant was to open the case below, and to obtain leave to file new pleadings, introducing new defenses. This he could not do. The rights of the parties in the subject-matter of the suit were finally determined upon the original appeal, and all that remained for the Circuit Court to do was to enter a decree in accordance with our instructions, and carry it into-effect. If, in the progress of the execution of the decree, after its entry, either party is aggrieved, he may appeal from the final decree in that behalf; but such an appeal will bring-up for re-examination only the proceedings subsequent to the-mandate.” •

It is likewise settled law, that, when the decree of a lower-court has been affirmed on appeal, or when a decree has been entered in the lower court in conformity with the mandate-of an appellate tribunal, a bill of review cannot be filed in the lower court without the permission of the appellate tribunal. The application for leave to file is to be made to the appellate court. Purcell v. Coleman & Miner, 4 Wall. 510; Rubber Co. v. Goodyear, 9 Wall. 805; Savings Bank v. Taylor, 53 Fed. Rep. 854; Southard v. Russell, 16 How. 547; Gaines v. Rugg, 148 U. S. 228; In re Potts, 166 U. S. 263, 267; Story’s. Eq. Pl., Sec. 408.

But the question here is, how far the rule that a lower court may not reopen a cause after the affirmance of a final decree-by an appellate court, or after the entry of a final decree in pursuance of the mandate of .an appellate court, is applicable-to the matter of interlocutory appeals, such as are authorized' under our present law. And this question, as it'is a novel one-in this jurisdiction and likely to recur at any time, it is im— portant to settle at this time as far as it is possible for us to do so.

The allowance of appeals from interlocutory orders or decrees is not a new thing in the law. It was common enough in the former English Chancery practice, in which appeals were frequent from the Lord Chancellor to the House of Lords from interlocutory orders appearing to affect the merits of the cause {Daniell’s Chan. Prac., p. 1634), and in which the reason given for this exercise of appellate power was “ that courts of equity often decide the merits of the case in intermediate orders, and the permitting of an appeal in the early stage of the proceedings frequently saves the expense of further prosecuting the suit.” This right of appeal, however, was confined to equity, inasmuch as in the nature of things there could not well be at common law any such absolute determination of right by interlocutory order. In our American Federal practice, and in the (judicial practice of most of the States of our Union, in which the subject has generally been regulated by statute, appellate jurisdiction as usually restricted to the review of final judgments and decrees, and the English Chancery practice does not usually obtain. As between the general term and the special terms-of the Supreme Court of the District of Columbia, as we all know, there was a power of review by the former of orders made by the latter which “ involved the merits ” of the action,, the indefiniteness of which was: the cause of great difficulty and inconvenience. The statute creating this court strove to be more specific; but at the same time it is broader and wider than any previous enactment or any previous practice,, since it authorizes the allowance of appeals from any orders whatever, either at common law or in equity, and in criminal as well as civil cases, wherever it seems to this court upon petition filed for the purpose to be in the interest of justice to allow such appeals.

The exercise of this appellate power is not without difficulty. While it should be liberally and freely admitted in order to subserve the beneficent purpose for'which the statute was enacted, yet undoubtedly the matter of the allowance of interlocutory appeals should be carefully guarded, so as that it should not have the effect of embarrassing the administration of justice instead of facilitating it. The case before us ■is a fair illustration of the possibilities of inconvenience that ■may result from such appeals; for this is the second interlocutory appeal, and it is almost the natural result of the first, and there is probability of at least two further appeals. Now, the multiplication of appeals is not in the interest of justice, and cannot subserve any good purpose. And we may add here that, in all cases in which this court is placed in the position of a merely intermediate appellate tribunal, it is greatly to be questioned whether the allowance of interlocutory appeals does not tend to complicate and unduly prolong the litigation.

In the allowance of appeals, where the allowance is in the discretion of this court, we are hound by the limitation that it must appear to be in the interest of justice that the appeal should be allowed. It must, therefore, determine something, and the determination must have the effect of finality so far as it is possible that there should be finality at such stage of the proceedings. If it were open to the court below to disregard the decision of the appellate tribunal upon such appeal, or to go behind it and reopen the cause, or to treat an interlocutory order affirmed upon appeal or directed to be entered by the appellate court as one of its own orders which it might vacate at its pleasure, this right of appeal would become a mere mockery of justice and would wholly fail to accomplish the purpose for which it was intended by the legislative authority. In appealing to this court parties are to be presumed to have exhausted their remedy in the court below upon the subject-matter of appeal. That, after their defeat upon the appeal, they should be permitted by the court below to go behind the- appellate decision and bring forward other defenses which they had all the time but did not choose to present, would be an anomaly in the law.

We must hold that, in the case of interlocutory appeals, equally as in the case of appeals from final judgments and "decrees, the decision of the appellate tribunal becomes the law of the cause, final and irrevocable, upon all the questions involved or that might have properly been brought forward ixfi such interlocutory decision, save only that the appellate tribunal itself, upon a proper showing, may revoke or modify its decision, or allow the cause to be reopened; and save, also, that, upon final hearing, the court below may not necessarily be bound in all cases by such interlocutory decision of the appellate court. If, for example, an injunction pendente lite is allowed by the lower court, and the order for its allowance is affirmed by this court upon appeal, it is not competent for the lower court thereafter during the pendency of the suit to disturb such injunction; but this would not preclude the court, upon final hearing, from dissolving the injunction and dismissing the bill of cdtmplaint, for then a new condition may be presented very different from that which appeared when the injunction was granted in the first instance.

But that a cause may be reopened, under proper conditions, at any stage of the proceedings, is familiar law. A motion for a new trial after verdict at common law is of daily occurrence. When such motion is based upon newly-discovered evidence of a substantial character, which with reasonable diligence could not have been procured before, it is almost a matter of course to reopen a cause. It is a provision of our •statute that even a final judgment may be vacated at any time for fraud, surprise, or irregularity in its procurement. A bill of review in equity based upon newly-discovered evidence is a well-known proceeding. If, therefore, a cause may be reopened upon sufficient grounds even after final judgment or decree, it is certainly proper that, during its pendency and before such final judgment or decree, the power to reopen it, to amend pleadings, to admit new testimony, and in general so to reform the cause as the interests of justice may require, should remain unimpaired. But the same principle that provides that, when a judgment or decree has been affirmed on appeal, or has been entered in pursuance of the mandate ■of an appellate court, such judgment or decree should not be in any manner interfered with, except with the permission ■of the appellate tribunal, requires also that only by the permission of the appellate tribunal may interlocutory orders so affirmed or entered be thereafter vacated. In both cases alike the judgment, order, or decree sought to be vacated has become the act of the appellate court, and should not be disturbed without the action or permission of the appellate court.

We have searched in vain in the English Chancery Reports for any case in which a different course has been pursued, or where a lower court has attempted to reopen a cause in derogation of the ruling of an appellate tribunal; nor has our attention been directed to any adjudication in this country wherein there has been any different procedure.

Erom what we have said, it follows necessarily, in our opinion, that the Supreme Court of the District was without authority to make the order for the reopening of this cause from which the present appeal has been allowed and prosecuted.

But it is suggested in argument on behalf of the appellee, on whose motion the order in question was made, that, upon the showing made, this court may now give leave for the reopening of the cause, and permit or authorize the court below to proceed therewith upon such leave. This would be virtually to sanction what the court has done without authority, and to dispense with the necessity of application to this court in the first instance. But assuming that, for the saving of time and trouble, the suggestion may be taken as the equivalent of a formal application to this court, we are led to a consideration of the sufficiency of the showing made by the appellee.

As already stated, the appellee has applied for the reopening of the cause, and for permission to amend its answer and to introduce new testimony; and two grounds are stated for this application: (1) That there was fraudulent concealment by the appellant Narrow from the appellee of the existence of a patent, known as the Stover and Hance patent, which is assumed to dominate the invention of the appellant, and in fact to preclude him from the merit of being an original inventor; (2) that, until the rendition'of the decision of this court on the former appeal, which was the appeal of the defendant now seeking to reopen the cause, the appellee was under a misapprehension as to the nature and character of the suit and of the complainant’s claim. In support of its application, the appellee filed in the court below numerous letters and three several affidavits; and these we also may here' consider.

We fail to find in the showing made any sufficient evidence, or indeed any evidence whatever, of fraudulent concealment by the complainant in the cause. It is stated that the complainant represented himself to be the original inventor of the device purchased from him by the appellee, when in fact he was not such inventor. He represented the same thing to the Patent Office in his application for a patent ; and we fail to see that there was anything fraudulent in the representation. All applicants for patents do that, and are required so to do; and it is no evidence of fraud that anticipation of the invention might be developed in the course of the proceedings. There was only an application pending. The record of the present case, and the correspondence now for the first time introduced by the appellee, show quite conclusively that the president of the defendant company, who made the contract with the complainant which is the basis of the suit, was as eager to purchase the device as the complainant was to sell. He was evidently familiar with the patent law, and knew precisely what contingencies might arise and what risks he took, and he took the risks knowingly and deliberately. He took the risk, which was specifically pointed out, that there might be a declaration of interference with other parties, and that in such interference the complainant, and the defendant as the assignee of the complainant, might be defeated.

But this whole question of the originality of the invention by the complainant, which enters into the consideration for the contract, has already been litigated. It is not new. It is set up in the defendant’s answer to the bill of complaint; and we fail to see wherein it acquires any additional force by reiteration in the application for the reopening of the cause.

The main specification of fraudulent concealment, however, is the allegation that, at the time the verbal contract between the parties was entered into which subsequently was embodied in the written agreement on which the litigation is based, the complainant had knowledge of the patent designated as the Stover and Hance patent, already mentioned, and even had a copy of it in his possession, and did not disclose it to the appellee. But an examination of the record shows very conclusively that he did disclose this patent to the attorney of the appellee charged with the making of an examination of the records of the Patent Office preliminary to the execution of the contract, that he delivered his copy of the patent to this attorney, and that the attorney actually examined the patent before the contract was executed; and that the contract was not executed until after full and satisfactory examination. Moreover, it is very clearly shown that, soon after the execution of the contract, the attorney of the defendant company sent to its president a copy of the Stover and Hance patent; so that the company had full knowledge of the patent at the time of the institution of the suit and, therefore, necessarily at the time when it made its answer to the bill of complaint. If there had been any fraudulent concealment of this patent by the appellee, then was the time to set it up. And yet neither in the appellee’s answer to the bill of complaint, nor in the introduction of testimony, is there any reliance whatever on this patent, or on its alleged fraudulent concealment by the complainant, as a defense. It is too late to make any such defense now, even if it were well founded.

It is set forth, in the second place, as a reason for the reopening of the case, that, until the decision rendered by this court, the appellee company was under a misapprehension as to the nature and character of the complainant’s claim. But this ground is wholly untenable. We fail to find any foundation whatever for it, either in the facts of the case or in law. It had the bill of complaint before it. It filed a sworn answer. It was represented by two or more attorneys. Its president and its attorney for the procurement of patents were examined as witnesses. The company had the most ample opportunity to understand the case, and we see no reason to doubt that it did understand it.

In this connection there has been some intimation in argument, that the opinion of this court on the former appeal went beyond the order appealed from, and is broader in its conclusions. We fail to find anything in the opinion which warrants this argument. But, if there be in it anything of that character, it is a well-known rule of construction that the expressions contained in an opinion are to be construed with reference to the subject-matter under consideration. The order of the court below was specific. We expressly affirmed that order, and we remanded the cause for the taking of the account directed by the order. Our mandate did not go beyond that. The cause went back to the court below for the execution of its order affirmed by this court on appeal. The account to be taken is the same account that was directed in the first instance by the court below. There is no ground for misunderstanding in the matter. No more and no less is directed to be done than was directed by the court below in the order of reference made by it to the auditor.

It is our conclusion that the order of the Supreme Court of the District of Columbia of October 22, 1900', whereby it allowed the cause to be reopened, the defendant’s answer to be amended, and further testimony to be taken, and from which the present appeal has been allowed, was- made without authority of law, and that it should be reversed, with costs; and that the cause should be remanded to that court, with directions to proceed with the audit heretofore directed to be had, and for such other proceedings according to law as may be just and proper. And it is so ordered.

A motion for a rehearing was overruled.