UNITED STATES GRAMOPHONE CO. v. SEAMAN, 113 F. 745

SIMONTON, Circuit Judge (after stating the facts as above). The record is large and confusing. It is essential, therefore, to keep in mind the question, and the only question, which presents itself to this court under this appeal at Ibis term. It is au appeal from an interlocutory order; and the only order from which an appeal can be taken at this stage of the case is the order of 15th June, 1901, continuing the injunction.

Under the act of congress of 1900 (31 Stat. 660) appeals lie from infcriocuiory orders granting or continuing au injunction, provided the appeal is taken within 30 days from the entry of the order. The first temporary injunction was granted October 4, 1900. The appeal in this case was 15th June, 1901. So the first and ninth assignments of error need not be regarded. With regard to the other assignments of error, they are directed largely to the merits of the case, and bear incidentally on the question as to continuing the temporary injunction. Was this improvidentlv awarded?

The rule upon this subject? is clearly stated in Welsbach Light Co. v. Cosmopolitan Incandescent Light Co., 43 C. C. A. 419, 104 Fed. 84, and it applies as well to the granting as to the refusing to grant an injunction. “In determining in a. given case whether the circuit court erred in refusing an injunction ponding litigation, it is to be remembered that such injunction in no case is a matter of strict right. The application for it must be addressed to the sound discretion of the court. It may be granted or refused unconditionally or on terms.

Upon appeal ordinarily the question is simply whether the court acted improvidently. Only when clearly erroneous will the order be reversed.” Sec, also, Ritter v. Ulman, 24 C. C. A. 71, 78 Fed. 222, 42 U. S. App. 263. In the case at bar the record presented grave questions requiring careful deliberation. There were charges and counter charges. The facts were complicated, and needed MI investigation. Another court of co-ordinate jurisdiction was engaged in the same investigation and examination, and had issued its temporary injunction.

The ease was evidently auxiliary to the case referred to pending in the Western district of Virginia, and was brought in the district of West Virginia solely because the present defendant refused to waive, its privilege of trial in the district of its residence. The court below dearly was impressed with ¡he comity due to the court in Virginia. The learned judge, who had had the widest, experience, gave the case his most careful and patient examination. He came to his conclusion slowly, and not improviolently.

Under all these circumstances, it seemed to him desirable that the status opio should be maintained, certainly until the main issues should be passed upon and determined in the case before the circuit court of the Western district of Virginia. We are not prepared to say that the action of the court below in continuing the temporary injunction was improvident. Its decree is affirmed.