Parkhurst v. Kinsman

18 F. Cas. 1203, 2 Blatchf. 72, 1848 U.S. App. LEXIS 445

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 25, 1848
• Status: Published

Opinion

BETTS,' District Judge.

It seemed to be supposed, on the argument, by the counsel for the defendant, that the supreme court, in requiring, by rule 57, notice to be given on an application for leave to file a supplemental bill, had put the petition upon the footing of the bill itself when filed, and that the application could be defeated by showing that the petition did not make a case establishing the propriety of the bill, and the legal liability of the party sought to be brought in, to the remedy sought by the suit. Such, however, is not the effect of the rule. It does not essentially change the practice as it before existed. In England and in this state, supplemental bills were allowed to be filed only by leave of the court.' Daniell, Ch. Prac. (Am. Ed.) 1655, and notes; Eager v. Price, 2 Paige, 333; Lawrence v. Bolton, 3 Paige, 294. And the court, in addition, frequently ordered notice to be given of the application. Eager v. Price, 2 Paige, 333. The design of notice is to avoid precipitation and a needless accumulation of pleadings. But the court inquires no further than to see whether probable cause exists for the new proceeding. The petition, accordingly, need not embrace tne averments intended to be in-serbed in the supplemental bill, but need only advise the opposite party and the court of the ground on which the relief is applied for. The court may. therefore, deny leave to file a supplemental bill, and yet permit an amendment of the original bill; and this ability to shape and abridge the pleadings may be the reason of the practice which requires the assent of the court to the filing of a supplemental bill. In my opinion, then, all that the court looi^j, to on motions of this description, is to see thVt the plaintiff states facts or circumstances which, if properly pleaded, would sustain a supplemental bill.

The allegations in the petition in regard to Goddard would( undoubtedly, be insufficient as averments in a supplemental bill, but they embrace matters which, if well pleaded, may charge him as a party to the suit. The court will not decide this motion on the technical rules applicable to a demurrer. The petition is sufficiently definite in charging that- Goddard has become connected with the subject-matter of the suit against Kinsman since the original bill was filed, and is, in that connection. doing those acts in relation to the interests of the plaintiff which this court, by injunction, has restrained Kinsman-■ from , doing; and that is, in substance, sufficient, according to all the authorities, to authorize the plaintiff to bring Goddard before the court, in the same suit, to answer for his proceedings. On these points, the plaintiff is entitled to a discovery from Goddard. It is a mistake to construe the petition as setting up, hs the ground of complaint, an independent infringement by Goddard of the plaintiff’s rights under his patent. Its bearing and manifest intent is to charge on Goddard a combination with Kinsman, and an acting in concert with him' to defeat the right the plaintiff has to restrain Kinsman on the equities of the original bill. It is enough, on this motion, to allege such concert and combination on information and belief, whether such a charge would or would not be sufficient in the bill itself. The leave prayed for must, therefore, be granted in respect to Goddard.

Most of the matters sought to be inserted in the supplemental bill in respect- to Kinsman would be proper subjects of amendment to the original bill, and could not lay the foundation for a supplemental, bill. 1 Hoff. Ch. Prac. 393, 398; Story, Eq. PI. § 333. But, as a discovery is sought from Kinsman in regard to particulars not stated in the original bill, and an answer to that has been already put in by him, the eourse of practice will justify the filing of a new bill. Mitf. Eq. PI. 62 (3d Am. Ed. 99) and note.

The' laches imputed to the plaintiff, in not pushing forward his suit since Kinsman’s plea and answer were put in, might perhaps call for a fuller excuse, before the court would allow the plaintiff to change the issues by amending the original bill. Even then, however, the objection would not stand upon the ground of any essential injury to the defendant to arise from permitting such amendment for it is not shown that any proofs have been taken by either party under the issues, or that the defendant lias availed himself of his privilege under our practice of speeding the cause. But a supplemental bill may be filed at any stage of a cause, even after decree rendered (Story, Eq. PI. § 338), and the nature of the present litigation would induce the court to lend all reasonable aid to have every dispute between the parties in respect to their rights as involved in it, definitively settled, and to leave nothing to be called up and pursued hereafter. Upon these considerations, I shall authorize the supplemental bill to be filed as prayed for, with the insertion, as against Kinsman, of the allegations referred to in the petition, and which might not, if brought forward by themselves, justify more than an order for amendment.

[NOTE. A receiver was appointed in this case upon the supplemental bill, and an injunction granted against Kinsman and Goddard. Case No. 10,760. Subsequently Kinsman was arrested under attachment for a violation of this injunction, and held to answer certain interrogatories filed by the plaintiff. Certain of these interrogatories were held by the court bad. upon demurrer of defendant. In the case of those upon which issue was joined, a reference was had to a master to take proofs. Id. 10.759. Upon the hearing upon all the pleadings and proofs taken, a decree was entered in favor of the plaintiff, and for an account. Id. 10,757. Subsequently, upon the coming in of the master’s report, a final decree for ,$23.220.28 was entered against the defendants. This decree was affirmed upon appeal by the supreme court. 18 How. (59 U. S.) 289.]