Western Silo Co. v. Morris

Eighth Circuit

Western Silo Co. v. Morris

33 F.2d 285, 2 U.S.P.Q. (BNA) 89, 1929 U.S. App. LEXIS 2710

Court of Appeals for the Eighth Circuit·Decided May 18, 1929·No. No. 8252·Published·Cited by 2 cases

Opinion

LEWIS, Circuit Judge.

This case involves the same patent that we considered in Causes Nos. 8176 and 8179, 33 F.(2d) 283, opinion filed this day.

On October 24, 1927, the court below en[286] tered a decree adjudging the patent valid, that the farrowing houses manufactured and sold by defendants, appellants here, constituted infringements, that defendants be enjoined from further infringements and that there be an accounting before a named master to determine the amount of damages plaintiff was entitled to recover. The bill prayed for both injunctive relief against further infringements and for profits and damages to be ascertained by an accounting. This appeal was not applied for or taken within thirty days after the decree, no'r were other steps taken within that time to modify or avoid it. Full and complete disposition of the issues in the ease was not made by the decree, it was not final under section 6 of the Circuit Court of Appeals Act as amended (Title 28, § 225, U. S. Code [28 USCA § 225]), but interlocutory; and under section 7 of that Act (Title 28, § 227, U. S. Code [28 USCA § 227]) this appeal could not be taken after expiration of the 30 days. John Simmons Co. v. Grier Bros. Co., 258 U. S. 82, 42 S. Ct. 196, 66 L. Ed. 475; Myles Standish Mfg. Co. v. Champion Spark Plug Co. (C. C. A.) 282 F. 961.

We are without jurisdiction over the controversy, and the appeal is dismissed.

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LEWIS, Circuit Judge.

This case involves the same patent that we considered in Causes Nos. 8176 and 8179, 33 F.(2d) 283, opinion filed this day.

On October 24, 1927, the court below en[286] tered a decree adjudging the patent valid, that the farrowing houses manufactured and sold by defendants, appellants here, constituted infringements, that defendants be enjoined from further infringements and that there be an accounting before a named master to determine the amount of damages plaintiff was entitled to recover. The bill prayed for both injunctive relief against further infringements and for profits and damages to be ascertained by an accounting. This appeal was not applied for or taken within thirty days after the decree, no'r were other steps taken within that time to modify or avoid it. Full and complete disposition of the issues in the ease was not made by the decree, it was not final under section 6 of the Circuit Court of Appeals Act as amended (Title 28, § 225, U. S. Code [28 USCA § 225]), but interlocutory; and under section 7 of that Act (Title 28, § 227, U. S. Code [28 USCA § 227]) this appeal could not be taken after expiration of the 30 days. John Simmons Co. v. Grier Bros. Co., 258 U. S. 82, 42 S. Ct. 196, 66 L. Ed. 475; Myles Standish Mfg. Co. v. Champion Spark Plug Co. (C. C. A.) 282 F. 961.

We are without jurisdiction over the controversy, and the appeal is dismissed.

Western Silo Co. v. Morris, 33 F.2d 285, 2 U.S.P.Q. (BNA) 89, 1929 U.S. App. LEXIS 2710 (8th Cir. 1929).

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