A decree was entered in the circuit court in favor of two
complainants against a defendant for the infringement of letters
patent, from which the defendant appealed. After the decree and
before the appeal was taken, one of the complainants below died. It
did not appear that the cause of action survived or that there was
a severance between the surviving and the representatives of the
deceased plaintiff. The death of the deceased party was not
suggested on the record, his representatives did not appear
voluntarily, nor were they cited to appear.
Held that the
proper course of proceeding to enable this Court to obtain
jurisdiction had been wholly disregarded, and that it was too late
to cure the defect, more than four years having elapsed since the
final decree was entered.
Page 139 U. S. 386
In equity. The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
These are appeals from final decrees rendered in the Circuit
Court of the United States for the Southern District of New York
awarding to Abraham G. Jennings and Warren P. Jennings,
complainants, damages against Thomas Dolan, of Philadelphia, and
Kibbe, Chaffee, Shreve & Co., of New York, for the infringement
of letters patent No. 218,082, for lace purling. A design patent
No. 10,448, for a design for fringed lace fabric, was also
proceeded on in the bills of complaint, but was held not to have
been infringed by defendants. Final decrees were rendered in each
suit in favor of Abraham G. Jennings and Warren P. Jennings against
Dolan and Kibbe
et al., respectively, on the 12th of
February, 1887.
On the 25th of March, 1887, a petition for appeal was filed in
each case on behalf of the defendants, entitled "Abraham G.
Jennings, survivor of Abraham G. Jennings and Warren P. Jennings,"
and against Dolan and Kibbe
et al., and the appeals were
allowed. The bond in No. 265 was approved March 10, 1887, and
entitled "A. G. Jennings, surviving complainant in A. G. Jennings
and W. P. Jennings v. Thomas Dolan," and recited that Dolan and his
sureties were "held and firmly bound unto the above-named
complainants in the sum of thirty-five hundred dollars, to be paid
to the said complainants." The citation ran "to Abraham G.
Jennings, surviving complainant," etc., and was served March 24,
1887.
In No. 266, the bond was entitled "A. G. Jennings and W. P.
Jennings v. in A. G. Jennings and W. P. Jennings v. Henry R. Kibbe"
and the other defendants, and recited that the persons signing were
"held and firmly bound unto the above-named A. G. Jennings and W.
P. Jennings in the sum of
Page 139 U. S. 387
twenty-seven hundred dollars, to be paid to the said A. G.
Jennings & W. P. Jennings." This bond was filed March 10, 1887.
The citation ran to "Abraham G. Jennings, surviving complainant,"
etc., and was served March 24.
The bills commenced "Abraham G. Jennings and Warren P. Jennings,
doing business at the City of New York, County and State of New
York, and citizens of the State of New York," and set up that
Abraham G. Jennings and Warren P. Jennings were "the sole and
exclusive owners" of the patents in question. It nowhere appeared
from the pleadings, proofs, proceedings, or decrees that the
complainants claimed to own or did own the patents as partners,
though there was some evidence that there was a firm styled A. G.
Jennings & Son, or A. G. Jennings & Sons, or Jennings &
Co. Sundry licenses were put in evidence, describing Abraham G.
Jennings and Warren P. Jennings as the owners of the patents, and
the granting of the licenses accordingly. The death of Warren P.
Jennings was not suggested on the record by the appellants, except
as the titles to the petitions for appeal, and the bonds on appeal,
and the directions of the citations, might be considered as such,
but we understand his death after decree to be conceded. No order
was procured, directed to the proper representatives of the estate
of Warren P. Jennings or notifying them of the appeal, nor have
they voluntarily appeared.
The proper course of proceeding upon this subject has been
wholly disregarded. Rev.Stat. § 955; Act March 3, 1875, § 9, 18
Stat. 470, c. 137; Rule 15, 108 U.S. 581. So far as disclosed by
these records, the cause of action did not, on the death of one of
the complainants, survive to the other; nor could there have been,
nor was there, any severance between Abraham G. Jennings and the
legal representatives of Warren P. Jennings; nor do we think that
the defect can now be cured. More than four years have elapsed
since the final decrees were entered, and, as we have never had
jurisdiction over the legal representatives of the deceased
complainant, it is impossible for us to obtain it now.
In
Knickerbocker Live Insurance Co. v. Pendleton,
115 U. S. 339,
after judgment had been rendered here reversing the
Page 139 U. S. 388
judgment below, which had passed in favor of the plaintiffs
below, the court discovered that the writ of error was sued out and
citation directed and served against only one of those plaintiffs,
and that the preliminary appeal bond was made to him alone. The
supersedeas bond was, however, executed to all the plaintiffs, and
the subsequent proceedings generally bore a plural title. The
special circumstances of the case were held to justify the
amendment of the writ of error and the issue of a new citation.
In
Mason v. United States, 136 U.
S. 581, the application to amend being made more than
two years after the entry of judgment, and the omitted parties
being in no way in court, the application was denied and the writ
of error dismissed.
Estis v. Trabue, 128 U.
S. 225.
We are compelled to hold the objection fatal to our
jurisdiction, and the appeals must be
Dismissed.