Fairbanks, Morse & Co. v. American Valve Co.,
276 U.S. 305 (1928)

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U.S. Supreme Court

Fairbanks, Morse & Co. v. American Valve Co., 276 U.S. 305 (1928)

Fairbanks, Morse & Co. v. American Valve & Meter Company

No. 262

Returns to rule to show cause submitted February 20, 1928

Decided March 19, 1928

276 U.S. 305


1. The circuit court of appeals may decline to reexamine the evidence on appeal when not condensed and stated as required by Equity Rule 75b. P. 276 U. S. 308.

2. But where the evidence was stated and approved in accordance with a practice theretofore prevailing in the circuit with the implied sanction of the circuit court of appeals, and where one of the judges of that court had made an order declaring that the transcript was received as a sufficient compliance with the equity rules, it was error to proceed to a determination of the case without considering the evidence before affording the appellants an opportunity to comply with Rule 75b by remitting the transcript to the district court for further proceedings in conformity therewith. Barber Asphalt Co. v. Standard Co., 275 U. S. 372. P. 276 U. S. 308.

3. Such opportunity was not given by an order allowing the appellants to withdraw the transcript for 30 days; they were entitled to a specific order operating as a direction to the district court. P. 276 U. S. 309.

Page 276 U. S. 306

4. Both parties being at fault through having brought the evidence into the transcript in objectionable form by their express stipulation, and the objection to it having been made by the court of its own motion, each party is left to pay its own costs in that court and this, and counsel fees and expense are not inflicted on the appellants as in Barber Asphalt Co. v. Standard Co., supra. P. 276 U. S. 310.

18 F.2d 716 reversed.

Certiorari, 274 U.S. 735, to a decree of the circuit court of appeals affirming, with modifications, a decree for profits in a patent infringement suit. The court of appeals declined to reexamine the evidence upon the ground that Equity Rule 79b had not been complied with. This Court directed the parties to show cause why the case should not be disposed of in accordance with Barber Asphalt Co. v. Standard Asphalt Co., 275 U. S. 372.

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