A bill pending in a circuit court of the United States against a
foreign corporation and other defendants citizens of the United
States for the infringement of letters patent was dismissed as to
the foreign corporation, and, so far as appeared from the record in
the appeal from the judgment of dismissal, was still pending and
undetermined as to the codefendants.
Held that the decree
in favor of the corporation was not a final decree from which an
appeal could be taken to this court, and that this appeal must be
dismissed for want of jurisdiction.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This was a bill filed by Friedrich Hohorst, a citizen of the
State of New York,
"against the Hamburg-American Packet Company, a corporation
organized and existing under the laws of the Kingdom of Hanover,
Empire of Germany, and doing business in the City of New York;
Henry R. Kunhardt, Sr.,
Page 148 U. S. 263
Henry R. Kunhardt, Jr., George H. Diehl, citizens of the United
States, and residents of the State of New York, and Arend Behrens
and William Koester, citizens of the United States and residents of
the State of New Jersey,"
for infringement of patent, in the Circuit Court of the United
States for the Southern District of New York, September 15, 1888.
September 17 the subpoena was served on Henry R. Kunhardt, Sr., as
a defendant and as general agent of the Hamburg Company.
November 5, 1888, a general appearance for all the defendants
was filed, and on December 18, 1888, a demurrer on behalf of the
packet company, assigning as grounds that the causes of action
against the several defendants were distinct and unconnected, and
hence that the bill was multifarious, and for want of equity. A
motion was made by complainant December 24 to amend, and on January
7, 1889, a motion by defendant to dismiss. On January 28, 1889,
leave to amend was granted, and the motion to dismiss denied, and
on February 2, 1889, the amendments were made. These consisted in
the insertion of the word "jointly" in the allegation of the
defendants' infringement, and also of the following allegation:
"Your orator further states that all of the defendants above
named are inhabitants of the City and County of New York; that the
defendant the Hamburg-American Packet Company has its principal
business office in this country, located in the City and County of
New York; that the defendants Henry R. Kunhardt, Sr., Henry R.
Kunhardt, Jr., George H. Diehl, Arend Behrens, and William Koester
are, and during the time of the infringements above set forth were,
copartners under the firm name of Kunhardt & Co., and as such
copartners are and were the agents and managers of the business of
the Hamburg-American Packet Company in this country, and have their
principal business office as such located in the City and County of
New York, and that the said infringements were committed in the
prosecution of such business, and all the defendants have
cooperated and participated in all the said acts and
infringements."
On February 16, 1889, defendant Hamburg Company served
Page 148 U. S. 264
notice of final hearing upon the bill of complaint and demurrer,
and on February 21 a notice was given of a motion that the
appearance entered on behalf of the Hamburg Company be changed from
a general appearance into a special appearance, and the service of
subpoena made upon that defendant be set aside, and the bill of
complaint dismissed as against the company, because of lack of
jurisdiction of the court over its person.
In April, 1889, an order was granted that unless complainant
withdrew his amended complaint as to the defendant company, and
stipulated to go to trial as to said defendant on the original bill
of complaint, the notice of appearance should be, and was thereby,
amended into a special appearance, and the service of the subpoena
set aside, and the bill of complaint dismissed as against said
company. 38 F. 273.
On April 11, 1889, the notice of appearance was amended
accordingly, subpoena set aside, and the bill of complaint
dismissed as against the company; whereupon complainant appealed to
this Court.
So far as appears from the record, the suit is still pending and
undetermined as against the codefendants of the company. We are of
opinion, therefore, that this appeal cannot be maintained, because
the decree rendered in favor of the company was not a final
decree.
In
United States v.
Girault, 11 How. 22,
52 U. S. 32,
which was a writ of error to review a judgment rendered by the
circuit court of the United States in Mississippi in favor of some
of the defendants only, in an action on a bond, leaving the suit
undisposed of as against one defendant, this Court would not
reverse the judgment according to the practice in Mississippi, but
dismissed the writ of error, and Mr. Justice Nelson, delivering the
opinion, said:
"The practice in this Court, in case the judgment or decree is
not final, is to dismiss the writ of error or appeal for want of
jurisdiction and remand it to the court below to be further
proceeded in."
Metcalfe's Case, 11 Rep. 38, was cited, where it was
held that a record of the Common Pleas could not be removed into
the King's Bench before the whole matter was determined in the
Common Pleas,
Page 148 U. S. 265
as it was entire, and could not be in both courts at the same
time, and also
Peet v. McGraw, 21 Wend. 667, wherein Mr.
Justice Nelson, then Chief Justice of New York, declared that a
case could not be sent up in fragments by a succession of writs of
error. Again, in
Holcombe v.
McKusick, 20 How. 552, it was said:
"It is the settled principle of this Court, and the same in the
King's Bench in England, that the writ will not lie until the whole
of the matters in controversy in the suit below are disposed of.
The writ itself is conditional, and does not authorize the court
below to send up the case unless all the matters between the
parties to the record have been determined."
The same rule is applicable to an appeal in admiralty,
Dayton v. United States, 131 U.S.App. lxxx, and in equity,
Frow v. De La
Vega, 15 Wall. 552,
82 U. S. 554.
In the latter case, it was held that a final decree on the merits
cannot be made separately against one of several defendants upon a
joint charge against all where the case is still pending as to the
others. It is true that there, a default had been entered with a
decree
pro confesso against one of several defendants, and
a final decree had been made absolute against him, whereupon the
court proceeded to try the issues made by the answers of the other
defendants and dismissed complainant's bill, but this attitude of
the case illustrated and required the application of the general
rule.
In
Withenbury v. United
States, 5 Wall. 819, it was decided that where a
decree in a prize cause disposed of the whole matter in dispute
upon a claim filed by particular parties, which was final as to
them and their rights and final also, so far as the claimants and
their rights were concerned, as to the United States, it was final,
while in
Montgomery v.
Anderson, 21 How. 386, where the district court of
the United States sitting in admiralty decreed that a sum of money
was due, but the amount to be paid was dependent upon other claims
that might be established, it was held that such a decree was not
final.
There are cases in equity in which a decree, disposing of every
ground of contention between the parties except as to
Page 148 U. S. 266
the ascertainment of an amount in a matter separable from the
other subjects of controversy, and relating only to some of the
defendants, may be treated as final though retained for the
determination of such severable matter.
Hill v. Chicago &
Evanston Railroad, 140 U. S. 52. But
this case presents no such aspect. Complainant insisted by his
amended bill that the alleged liability was joint, and that "all
the defendants have cooperated and participated in all the said
acts and infringements."
In
Shaw v. Quincy Mining Co., 145 U.
S. 444, a bill was filed against the mining company and
others in the Circuit Court of the United States for the Southern
District of New York, and service of subpoena was made upon the
secretary of the company. The company appeared specially, and moved
for an order to set aside the service, which was granted, whereupon
complainant applied to this Court by petition for writ of mandamus
to the judges of the circuit court to command them to take
jurisdiction against the company upon the bill. The ground on which
our jurisdiction was invoked was the inadequacy of any other
remedy, and it was argued that, as the cause could proceed as to
the other defendants, no final judgment could be entered upon the
order of the circuit court, and no appeal taken therefrom.
Under the circumstances,
This appeal must be dismissed for want of jurisdiction, and
it is so ordered.