Sessions v. Gould

Second Circuit

Sessions v. Gould

63 F. 1001, 1894 U.S. App. LEXIS 2465

CourtCourt of Appeals for the Second Circuit

DecidedOctober 16, 1894

StatusPublished

Cited by2 cases

This text of 63 F. 1001 (Sessions v. Gould) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sessions v. Gould, 63 F. 1001, 1894 U.S. App. LEXIS 2465 (2d Cir. 1894).

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Opinion

WALLACE, Circuit Judge.

The complainants in an equity suit in the circuit court to restrain an infringement of a patent obtained an interlocutory injunction, and subsequently, insisting that the-defendants had violated the injunction, proceeded by a motion in the cause to have the defendants punished for contempt. The circuit court, after hearing the parties, made an order, entitled in the-cause, that the defendants pay a fine of $500. The defendants, by an appeal from that order, seek to review and reverse it, upon the-ground that the court erred in finding them guilty of disobeying the-injunction.

If the order complained of is to be treated as part of what was-done in the original suit, it is interlocutory in the cause, and can only be corrected in this court upon an appeal from the final decree. Hayes v. Fischer, 102 U. S. 121; Worden v. Searls, 121 U. S. 14, 7 Sup. Ct. 814. If the order is to be treated as an independent proceeding, it is, in effect, a judgment in a criminal case. New Orleans v. New York Mail S. S. Co., 20 Wall. 387; Ex parte Kearney, 7 Wheat. 39. While there is no doubt of the jurisdiction of this court, under section 6 of the act to establish circuit courts of appeals (20 Stat. 820), to review a criminal judgment, not a conviction of a capital or otherwise infamous crime, it can only do so upon a writ of error.. A judgment in a common-law proceeding is not removed by an appeal, and a bill of exceptions is necessary to procure a review on a writ of error of any errors which do not appear on the face of the-record. Saltmarsh v. Tuthill, 12 How. 387; Kearney v. Denn, 15 Wall. 51; Knapp v. Railroad Co., 20 Wall. 117; Kerr v. Clampitt, 95 U. S. 188. As there is no writ of error or bill of exceptions in the record, we are not called upon to decide whether the order is a criminal judgment.

We are without jurisdiction to entertain the appeal, and it must, accordingly be dismissed.

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WALLACE, Circuit Judge.

The complainants in an equity suit in the circuit court to restrain an infringement of a patent obtained an interlocutory injunction, and subsequently, insisting that the-defendants had violated the injunction, proceeded by a motion in the cause to have the defendants punished for contempt. The circuit court, after hearing the parties, made an order, entitled in the-cause, that the defendants pay a fine of $500. The defendants, by an appeal from that order, seek to review and reverse it, upon the-ground that the court erred in finding them guilty of disobeying the-injunction.

If the order complained of is to be treated as part of what was-done in the original suit, it is interlocutory in the cause, and can only be corrected in this court upon an appeal from the final decree. Hayes v. Fischer, 102 U. S. 121; Worden v. Searls, 121 U. S. 14, 7 Sup. Ct. 814. If the order is to be treated as an independent proceeding, it is, in effect, a judgment in a criminal case. New Orleans v. New York Mail S. S. Co., 20 Wall. 387; Ex parte Kearney, 7 Wheat. 39. While there is no doubt of the jurisdiction of this court, under section 6 of the act to establish circuit courts of appeals (20 Stat. 820), to review a criminal judgment, not a conviction of a capital or otherwise infamous crime, it can only do so upon a writ of error.. A judgment in a common-law proceeding is not removed by an appeal, and a bill of exceptions is necessary to procure a review on a writ of error of any errors which do not appear on the face of the-record. Saltmarsh v. Tuthill, 12 How. 387; Kearney v. Denn, 15 Wall. 51; Knapp v. Railroad Co., 20 Wall. 117; Kerr v. Clampitt, 95 U. S. 188. As there is no writ of error or bill of exceptions in the record, we are not called upon to decide whether the order is a criminal judgment.

We are without jurisdiction to entertain the appeal, and it must, accordingly be dismissed.

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Bluebook (online)

63 F. 1001, 1894 U.S. App. LEXIS 2465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sessions-v-gould-ca2-1894.

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