ANDREWS et al. v. THUM et al., 64 F. 149

PUTNAM, Circuit Judge. This is a motion to dismiss an appeal in a patent cause. The bill was brought against the vendors of the alleged infringing article. With the consent of the nominal defendants, the manufacturers assumed and carried on the defense in the circuit court, so that the ultimate result, when reached, will constitute res adjudicata as against them.

After the manufacturers had so far embarked in the defense as to involve essentially their own interests, the permission to conduct it became irrevocable, unless they failed to conduct it properly, or to give indemnity or comply with other reasonable terms, if asked under proper circumstances. There is no suggestion in the record calling for the consideration or application of any of these qualifications. An interlocutory order for an injunction and an account was, after a trial on bill, answer, and proofs, entered February 7, 1893.

Thereupon, the manufacturers, who were defending, filed, May 6, 1893, a motion to reopen the case and dissolve the injunction, for reasons touching the merits.

Meanwhile, without consulting the manufacturers, the nominal parties caused to be entered May 13, 1893, a final decree, as follows: “Inasmuch as it appears that the parties have settled the money payments ordered by the interlocutory decree, it is hereby ordered, adjudged, and decreed that reference to a master be waived, and that defendants be ordered to pay to the complainants the sum of $2,500 as damages and profits to be recovered by the complainants of the defendants herein, and as costs of suit.” On the 23d day of June, 1893, the court heard on its merits the motion filed May 6, 1893, and denied it.

This left the injunction in full force, and, so far as concerns it, a judgment which binds the manufacturers, unless reopened on appeal or otherwise. The manufacturers took this appeal in the names of the nominal defendants within six months from June 23, but not within that period from May 13, 1893. The objection based on the time within which the citation was made returnable is met, in every phase, by Seagrist v. Crabtree, 127 U. S. 773, 8 Sup. Ct. 1394.

The motion filed May 6, 1893, and heard after the entry of the decree of May 13, 1893, must be regarded as in effect the same as a petition for a rehearing, filed after judgment, under our rule 29. It was heard on its merits without objection, and can have no other possible effect. It was entirely lacking form, but in the federal courts, when substance is preserved, defect of form is easily waived, as was done in this case. Holding the proceeding to have operation under rale 29, the appeal was seasonably taken. Smelting Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. 4; Voorhees v. Manufacturing Co., 151 U.

S. 135, 14 Sup. Ct. 295. That the appellees have mistaken the application of the rules of this court touching the time of filing the record has been settled since Owings v. Tiernan, 10 Pet. 24. The right of the manufacturers to take this appeal without the special consent of the nominal defendants is denied. That, under the circumstances, justice requires that they should be allowed to take it cannot be disputed.

We need not determine whether the right to take an appeal is ordinarily implied in a general authority to defend, under the circumstances of this case, because here the formal contract between the nominal defendants and the manufacturers obliged the latter to carry on the defense to “final judgment,” and after the manufacturers became involved in the litigation, and needed to protect themselves, as well as the nominal defendants, their rights were necessarily concurrent with their liability. “Final judgment,” in this agreement, evidently means a determination by the ultimate tribunal; otherwise, the manufacturers might unjustly have left their customers to their own fate in an appellate tribunal, which would be contrary to the spirit of the contract. t The other points made on the motion to dismiss, so far as they have any pertinency, are appropriate only to the hearing on the merits.

Motion to dismiss denied.