Gamewell Fire-alarm Tel. Co. v. Municipal Signal Co.

61 F. 208, 9 C.C.A. 450, 1894 U.S. App. LEXIS 2172

• Court: Court of Appeals for the First Circuit
• Decided: January 4, 1894
• Docket: No. 42
• Status: Published

Opinion

PER CURIAM.

Pending the appeal, and before argument of the cause in this court, the letters patent in suit expired, and with that expiration' the interlocutory injunction appealed from terminated. There is, therefore, nothing remaining for a judgment of this court to act upon. In this condition of the cause the court will no further consider whether the injunction was or was not properly-granted, bat will dismiss the appeal.

Appeal dismissed; no costs on appeal to either party.

After the foregoing opinion was rendered, a petition for rehearing was filed, but was withdrawn by leave of the court. The court at the same time gave the parties leave to file briefs upon the form of the decree to be entered. Briefs were accordingly submitted, and, after considering the same, the following opinion was rendered:

(March 21, 1894.)

It is true that in Richmond v. Atwood, 2 C. C. A. 596, 52 Fed. 10, which came before this court on an appeal from an interlocutory decree granting an injunction, the whole case was examined and was disposed of on its merits. But that injunction, it is to be remembered, was granted by the court below upon a final hearing of the case on the full evidence, and this court, in support of its judgment, said: “We must go to the full merits, as shown by the record, in order to determine whether the interlocutory decree for a perpetual injunction is founded in error.” It is only when the determination of the question whether the injunction was erroneous so requires us to look into the whole case on its merits that we shall feel disposed to follow the course pursued in Richmond v. Atwood. Assignments of error ought to he strictly confined to the subject brought before the appellate court, whether on appeal or by writ of error.

In the case now before us everything .has been decided except the form of the decree to be entered. Upon that question the brief of the appellants suggests, if it does not contend, that tve should pass upon all the matters in the assignment of errors. In the view of the court, the expiration of the patent ipso facto dissolved or terminated the injunction, and left nothing requiring the interposition of this court. The appeal has been accordingly dismissed. It would have been useless labor to consider the questions which would have required examination and determination after the removal of the subject to which they pertained. The dismissal of the appeal without a qualifying order leaves the case to proceed in the circuit court as if no appeal liad ever been taken, and it is enough to enter a decree, “Appeal dismissed.”

Mandate according to the decree of January 4, 1894, may issue forthwith.