Gardner Sign Co. v. Claude Neon Lights, Inc.

Third Circuit

Gardner Sign Co. v. Claude Neon Lights, Inc.

38 F.2d 233, 4 U.S.P.Q. (BNA) 159, 1930 U.S. App. LEXIS 2301

CourtCourt of Appeals for the Third Circuit

DecidedFebruary 17, 1930

DocketNo. 4345

StatusPublished

Cited by1 cases

This text of 38 F.2d 233 (Gardner Sign Co. v. Claude Neon Lights, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gardner Sign Co. v. Claude Neon Lights, Inc., 38 F.2d 233, 4 U.S.P.Q. (BNA) 159, 1930 U.S. App. LEXIS 2301 (3d Cir. 1930).

Pincite

Opinion

WOOLLEY, Circuit Judge.

Two bills were filed in this ease, original and ancillary. On the original bill a preliminary injunction 'was issued against the defendants on a tentative finding of infringement. No appeal has been taken from that decree. On the ancillary bill filed by one of the defendants in the original suit a preliminary injunction was granted against the plaintiffs in that suit restraining them from circularizing the trade in respect to the substance and effect of the original preliminary injunction and from further injuring the defendant in that regard. This appeal is from that decree. The plaintiff in the decree entered on the ancillary bill has filed a petition for Writ of Certiorari Sur Diminution of the Record alleging that a certain affidavit of .one C. E. Rafter, being an exhibit in the original suit, is pertinent to the issues in the ancillary suit and has been improperly omitted from and therefore should be included in the reeord of that suit now here on appeal. The question whether the exhibit in the original ease constitutes a part of the record in the ancillary case now here on appeal was submitted to the learned district judge who entered the decree, and, after argument and due consideration, was by him decided adversely to the petitioner.

Although we have been influenced, quite properly, by the statement of the learned trial judge who heard both eases that the affidavit in question has no bearing on the instant suit, we have given the matter independent consideration and are constrained to say that we have not been persuaded that an affidavit admittedly introduced in the original suit and not introduced in the ancillary suit has any bearing on a review of the latter suit, particularly as the latter suit has to do only with actions and events which have occurred.since the first suit was preliminarily determined, and as this court will not on this appeal reach back and pass on any matters decided in the original suit, not yet here on appeal.

The petition is dismissed.

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WOOLLEY, Circuit Judge.

Two bills were filed in this ease, original and ancillary. On the original bill a preliminary injunction 'was issued against the defendants on a tentative finding of infringement. No appeal has been taken from that decree. On the ancillary bill filed by one of the defendants in the original suit a preliminary injunction was granted against the plaintiffs in that suit restraining them from circularizing the trade in respect to the substance and effect of the original preliminary injunction and from further injuring the defendant in that regard. This appeal is from that decree. The plaintiff in the decree entered on the ancillary bill has filed a petition for Writ of Certiorari Sur Diminution of the Record alleging that a certain affidavit of .one C. E. Rafter, being an exhibit in the original suit, is pertinent to the issues in the ancillary suit and has been improperly omitted from and therefore should be included in the reeord of that suit now here on appeal. The question whether the exhibit in the original ease constitutes a part of the record in the ancillary case now here on appeal was submitted to the learned district judge who entered the decree, and, after argument and due consideration, was by him decided adversely to the petitioner.

Although we have been influenced, quite properly, by the statement of the learned trial judge who heard both eases that the affidavit in question has no bearing on the instant suit, we have given the matter independent consideration and are constrained to say that we have not been persuaded that an affidavit admittedly introduced in the original suit and not introduced in the ancillary suit has any bearing on a review of the latter suit, particularly as the latter suit has to do only with actions and events which have occurred.since the first suit was preliminarily determined, and as this court will not on this appeal reach back and pass on any matters decided in the original suit, not yet here on appeal.

The petition is dismissed.

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Bluebook (online)

38 F.2d 233, 4 U.S.P.Q. (BNA) 159, 1930 U.S. App. LEXIS 2301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-sign-co-v-claude-neon-lights-inc-ca3-1930.

Opinion

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