Radio Corp. of America v. J. H. Bunnell & Co.

298 F. 62, 1924 U.S. App. LEXIS 2606

Opinion

PER CURIAM.

Plaintiffs brought the usual bills for infringement of patents. Defendants embodied in their answers a counterclaim under equity rule 30, in which, among other things, injunctive relief against plaintiffs or some of them was asked. No motion for injunction, however, was ever made by defendants, but plaintiffs, for reasons here immaterial, moved to dismiss the counterclaim. The court thereupon ordered merely that “the counterclaim in the answer * * * to the amended bill of complaint herein be and the same hereby is dismissed.” Thereupon defendants appealed from these orders, assigning for error only that the court erred in entering such dismissal.

Confirming the disposition of these causes made in open court on the argument, these appeals must be dismissed, without costs, as having been inadvertently taken. The orders appealed from were obviously, not final, and therefore no appeal lies, under Judicial Code, § 128 (Comp. St. § 1120). This general principle is undoubted. Rexford v. Brunswick, etc., Co., 228 U. S. 339, at page 346, 33 Sup. Ct. 515, 57 L. Ed. 864. That an appeal will not lie from an order or decree merely dismissing a cross-bill was explicitly held in Emery v. Central Trust, etc., Co., 204 Fed. 965, 123 C. C. A. 287.

Nor could any appeal.be taken under Judicial Code, '§ 129 (Comp. St. | 1121). That well-known section does grant the right of appeal when in a District Court “an injunction shall be * * * refused * * '"but such appeal must be taken from an “interlocutory order or decree * * * refusing * * * an injunction. * * * ” .No order was ever entered herein refusing an injunction, if for no other reason than that no injunction was ever formally asked for.

This section of the Judicial Code cannot be invoked to sustain the right of appeal, where no question of the right to injunctive relief is raised, or even suggested.