# Brief in Opposition to Petition for Writ of Certiorari — Edwards v. Bingham Pump Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief in Opposition to Petition for Writ of Certiorari
- **Published:** January 1, 1941
- **Citation:** 314 U.S. 656

## Text

Supreme Court of the United States.

OCTOBER TERM, 1941.

by
k

mp -
No. 7

LEONARD L. EDWARDS,
Petitioner,

v.

BINGHAM PUMP COMPANY, INC., a Corporation,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT
AND

BRIEF FOR PETITIONER
IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI.

GEORGE P. DIKE,
CEDRIC W. PORTER,

Attorneys for Petitioner.
Joun F. McCartuy,

of Counsel.

L. H. LANE COMPANY, LAW PRINTERS, 221 HIGH STREET. BOSTON, MASS.

BRUM ELITES, ints FEE PO

;
[

TABLE OF CONTENTS.

Page
Petition for a Writ of Certiorari ; : . 1-11
Summary and Short Statement of the Matter Involved . 1
A) The Failure to Appeal from the Interlocutory
Decree ; P 3
B) The Failure to asia to i Master’ s —_ 6
Questions Raised By the Case . ; 7
Reasons Relied on for the Allowance of the Writ ; 9
Prayer . : ; ; ; ; ; : , 10
Brief for Petitioners ; ; ‘ ; ‘ ; . 13-34
Jurisdiction . ‘ ; . S , ‘ : 14
Specification of Errors. ‘ ‘ : ; : 14
Summary of Argument . ; ; ; ‘ ’ ; 15
Argument . 15
A. The Effect of Failure | to pe ‘ads the ‘ile:
tory Decree (Final Except for Accounting) . ‘ 15

Point 1. The Court of Appeals Has Construed Title
28 U.S.C.Secs. 227 and 227a in a Manner
Contrary to the Express Intent of Congress,
and as to Defeat the Purpose of Congress

in Permitting Appeals from Interlocutory
Decrees in Specified Instances, and from
Decrees Which Are Final Except for Ac-
counting . ; ‘ ‘ 15

Point 2. The Decision of the Court of ‘ial Is In
Conflict with the Decision of This Court
in Ensten v. Simon, Ascher & Co., 282 U.S.
445 (1930) in an Analogous Situatign . 20

Point 3. The Decision of the Court of Appeals is In
Conflict with a Decision of the Circuit Court
of Appeals for the Eighth Circuit, and Even

a

il

Page
With One of Its Own Previous Decisions,

Not Overruled. : : Yee 22
(a) In the 8th Circuit. ‘ . : ‘ 22
(b) In the 9th Circuit. ‘ - 22

Point 4. The Decision of the Court of pe Con-
strues Title 28 U.S.C. Secs. 227 and 227a
in a Manner Conflicting with Fundamental
and Settled Principles of Appellate Pro-
cedure a . ‘ ‘ 23

(a) The “Yecision Is in Conflict with the Settled
Rule uf Federal Appellate Practice that a
Party Who Fails to Appeal from an Appeal-
able Decree, or Who Fails to Raise Questions
on a Previous Appeal Which He Could Have
Raised, Waives His Right to Be Heard There-
on and Cannot Raise the Same Questions in
Any Subsequent Appeal. ; 23
(b) The Decision Is in Conflict with the Settled
Rule of Federal Appellate Practice that Where
Separate Appeals Are Permitted in Various
Stages of a Litigation, Questions Decided on
the First Appeal (or Which Could Have Been
Decided) Will Not Be Re-Examined on the
Second Appeal. The Second Appeal Brings
Up Nothing but the Proceedings Subsequent
to the Mandate on the First Appeal . : 24
(c) The Decision Is in Conflict with the Settled
Rule of Federal Appellate Practice that Frag-
mentary or Piecemeal Appeals in the Same
Litigation Raising Different Points Success-
ively in Different Appeals on the Same Record
Will Not Be Permitted

B. The Effect of Failure to Except to the Master’s
Report as to Validity

ili

Page
Point I. The Decision of the Court of Appeals in
Giving the Rules of Civil Procedure a Re-
troactive Effect of Three Years Is in Conflict
with Previous Decisions of That Court and
of Other Circuit Courts of Appeals : 30
Conclusion. : : ‘ . ; ‘ : , 33
TABLE OF CASES.
George Allison & Co. v. I. C. C., 107 F. (2d) 180, 181

(C. A. D. C., 1939) 7 5 ‘ ‘ 32
Arnold v. United States, 263 U.S. 427 (1923) . r 26
Austin-Western Machinery Co. v. Disc Grader Co., 291 Fed.

301 at 303 (C. C. A. 8, 1923) ‘ : ; 5, 8, 22
Barnard v. Gibson, 7 How. 650 (1849) .. , 16
Bissell Carpet Sweeper Co. v. Goshen Sweeper Co., 2 Fed.

545, 555 (C. C. A. 6, 1896). ; 25
Brick v. A. I. Namm & Sons, 21 F. (2d) 179 at 180 . C.

E. D. New York, 1927) . : ‘ ; 20
Burns v. Cooper, 153 Fed. 148 at 151 (C. C. A. 8, 1907) , 24
Burns v. Rosenstein, 135 U. S. 449 at 455-6 (1889) . R 29
Casals v. Fernandez, 40 F. (2d) 831 at 832 (C. C. A. 1, 1930) 24
Chase v. Driver, 92 Fed. 780 (C. C. A. 8, 1899) : : 24
City of El Paso v. West, 104 F. (2d) 96 at 97 (C. C. A. 5,

1939) . ‘ : ; ; 32
Clark Thread Company v. Willimantic ran Co., 140 U.S.

481, 482 (1890) . : ? 16
Cole v. Rustgard, 68 F. (2d) 316 Cc. c. A. 9, 1933) . ; 26
Collins v. Miller, 252 U. S. 364-370 (1919). ; 26
Covington v. Covington First National Bank, 185 U. S. 270

at 277 (1901) ‘ : 26

Cromwell v. Skinner, 62 F. (2d) 432 at 435 C. c A. 10,
1933) . : ‘ , ; , ’ ; ; 30

iv

Page

Draper Corp. v. Stafford Co., 255 Fed. (C. C. A. 1, 1918) . 27
Ensten v. Rich-Sampliner Co., 13 F. (2d) 132 (D. C. N. D.

Ohio, E. D. 1926) reversed on another point 19 F. (2d)

66 (C. C. A. 6, 1927) . 21
Ensten v. Simon, Ascher & Co., 282 U. ‘Ss. 445 at 457-8

(1930) . : . 5, 9, 27
Evans v. Crown Gas & Oil ‘. 245 Fed. 933 C Cc & &

1917) ; ; ; 30
Forgay v. Conrad, 6 How. 201 at 206 6 (1848) 26
Gregory v. Pike, 77 Fed. 241 (C. C. A. 1, 1896) 25
Groblewski v. John Chmiell Co., 264 Fed. 325 et. A. i,

1919) 27
Guaranty Trust Caneiie v. sesiilaaidt Pump Co. ‘ 242

Fed. 920 at 921 (C. C. A. 2, 1917) . 24
Heike v. United States, 217 U. S. 423, 429 26
Hill v. Chicago & Evanston Railroad Co., 140 U. S. 52 at

53-55 (1890) ; 23
Hill v. Ohio Casualty Ins. Co., 104 F. (24) 695 at 696 Cc.

C. A. 6, 1939) ; ; ; ‘ 7, 10, 30
Humiston v. Stainthorp, 2 Wall. 106 ( 1864) 16
Illinois v. Illinois Central Railroad Co., 184 U. S. 77 at 91-3

(1901) . ; ‘ 24
Jacobs v. lodent Chemical ranean 41 F. a) 637 at 638

(C. C. A. 3, 1930) 27
Meda v. Fred T. Ley & Co., 65 F. sai 499 at 501 «: C.A.

1, 1933) 25
Kelsey Wheel Co. v. Universal Rim Co. : 296 Fed. 616

(C. C. A. 6, 1924) ; 27
Keystone Iron Company v. Martin, 132 U. Ss. 91 (1889) 16
Leach v. Ross Heater & Mfg. Co., 104 F. (2d) 88 at 90

(C. C. A. 2, 1939) ‘ ‘ ‘ : 7, 10, 31
McGourkey v. Toledo & Ohio Railway Co., 146 U.S. 536

at 545 (1892) : ‘ ‘ ; % 16

Page
McLish v. Roff, 141 U. S. 661 at 665 (1891) 25
Nielson v. Utah Construction Co., 104 F. (2d) 887, 892

(C. C. A. 9, 1939) : ; : ; 7, 10, 31
O’Nate v. Bahr, 67 F. (2d) 180 at 181 i C. A. 9, 1983) .

6, 9, 22, 23
In re Potts, 166 U. S. 263, 267 (1896) : 24
Quinton v. Neville, 154 Fed. 432 at 434 (C. C. A. 8, 1907) 24
Rexford v. Brunswick, Balke Company, 228 U.S. 339 at

346 (1912) 26
Richmond v. Atwood, 52 Fed. 10 at 15- 16 C. C. A. I

1892) 17
Roberts v. Cooper, 20 How. 467 at 481 (1857). 25
In re Sanford Fork & Tool Co., 160 U. S. 247 at 255 (1895), 24
Satterlee v. Harris, 60 F. (2d) 490 at 491 (C.C. A. 10,

1932) ; ; : ; ; 26
Savage v. Monarch Royalty Co., 64 F. (2d) 650 at 651

(C. C. A. 10, 1933) 30
Schlaefer v. Schlaefer, 112 F. (2d) 177 at 181 -2 (C. A.

D. C., 1940) P ‘ , : : ‘ 7, 10, 32
Simmons v. Grier, 258 U. S. 82 : ‘ 14
Smith v. Vulcan Iron Works, 165 U.S. 518 a at 524, 525

(1896) . ‘ . ‘ ; 16, 17, 24
Southern Railway Company v. Doel Tdiened Company,

179 U. S. 641 at 644 (1900) 26
Stromberg Motor Devices Co. v. Arnson, 239 Fed. 821

(C. C. A. 2, 1917) . . 27
Sun Co. v. Vinton Petroleum Co , 248 Fed. 623 at 625

(C. C. A. 5, 1918) . ‘ 24
Sutton v. Gulf Smokeless Coal Co., 77 F. (24) 439 ; at 441

(C. C. A. 4, 1935) . 23
Taylor v. Merrill, 104 F. (2d) 710 at 712 c. C.A. 9, 1939), 32
Tennessee Publishing Co. v. Carpenter, 100 F. (2d) 723, 732

(C. C. A. 6, 1938) . 29

yar iy “
; eens

vi

Tighe v. Maryland Casualty Co., 99 F. (2d) 727 at 728

Page

16

(C. C. A. 9, 1938) : 32
Topliff v. Topliff, 145 U.S. 156 at 173 (1891) . 29
Turner v. Kirkwood, 62 F. (2d) 256 (C. C. A. 10, 1932) 25
Underwood Typewriter Co. v. E. C. Stearns & Co., 227 Fed.

74 at 83 (C. C. A. 2, 1915) ; 29
United States v. Bollman, 81 F. (2d) 1009 at 1010 . a em

8, 1936) 25
United States v. Camou, “184 U. S. 572, 575 (1901) . 24
United States v. Van Blargen, 60 F. (2d) 874 at 875 (C.C.A.

3, 1932) 24
Ward Baking Co. v. Weber Bros., 230 Fed. 142 Cc. C. A. 3,

1916) : 27
Wright v. Taft-Peirce Mfe. be: 287 Fed. 131 C. C. A. 1,

1923) ; . ‘ 5 26

STATUTES, COURT RULES AND TEXT BOOKS.
The Judiciary Act of 1879, Act of Sept. 24, 1879, C. 20,

Secs. 13, 22; 1 Stat. 81, 84 16
Act of March, 1803, C. 40, 2 Stat. 244 ; 16
Act of March 3, 1891, C. 517, 26 Stat. 838, Sec. 7 .

Act of June 19, 1934, c. 651, Sec. 1; 48 Stat. 1064; 25

U.S. C. Sec. 723b : 32
Rev. Stats. Secs. 691, 692, 699, 701 16
Senate Report 1319, 69th Congress, 2d Sess. 19
House Report, 1890, 69th Congress, 2d Sess. F 20
Title 28, U. S. C. Sec. 227 and 227a P a

8, 9, 10, 13, 14, 15, 18, 19, 21, 23, 25, 21

Rules of Civil Procedure — Equity Rule 66 ‘ ; 3, 8, 29
Equity Rule 86 30

5 Corpus Juris Secundum, Sec. 1830, p. 1286 . 25

In the
Supreme Court of the United States.

OCTOBER TERM, 1941.

No.
LEONARD L. EDWARDS,
Petitioner,
v.
BINGHAM PUMP COMPANY, Inc., a corporation,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

To the Honorable Chief Justice and Associate Justices of
the Supreme Court of the United States:

Your petitioner, Leonard L. Edwards, plaintiff, respect-
fully prays for a writ of certiorari to the Cireuit Court of
Appeals for the Ninth Circuit to review a judgment of that
Court entered May 13, 1941, denying plaintiff’s petition for
rehearing.

SUMMARY AND SHORT STATEMENT OF THE MATTER
INVOLVED.

The material and essential facts are:

This action was brought by petitioner Feb. 24, 1934, in
the United States District Court for the District of Oregon
to enjoin infringement of Letters Patent No. 1,927,395
granted to himself Sept. 19, 1933, for Gear Pumps (R. p. 1).

2

The District Court referred the case to a Master (R. p. 21),
who heard the evidence, and after full trial on the merits,
entered a Report, Sept. 4, 1935 (R. p. 93), finding the pat-
ent valid and infringed. Respondent excepted Sept. 24,
1935, to the Master’s findings as to infringement, but not as
to validity of the patent (R. p. 48). Respondent’s Excep-
tions were overruled (R. p. 55) and an Interlocutory Decree
ordering an injunction and an accounting was entered by
the District Court, January 20, 1936 (R. p. 61). Respond-
ent’s Petition for Rehearing, filed Jan. 22, 1936 (R. p. 65),
Motion to Remand to Master filed Jan. 29, 1936 (R. p. rei
and Supplementary Petition for Rehearing filed Feb. 10,
1936 (R. p. 40) were denied by the Court March 23, 1936
(R. p. 84). Respondent did not appeal from the Interlocu-
tory Decree of January 20, 1936, at any time, although it
could have done so within thirty days, under Title 28
U.S.C. See. 227, and 227a. On April 27, 1936, no appeal
from the Interlocutory Decree having been taken in the
meantime, the parties started taking testimony before the
Master in the accounting, which testimony was concluded
May 14, 1936 (R. pp. 180-131). On May 25, 1936 (R. p. 85),
Respondent filed a Petition to Reopen and to File an
Amended Answer, which was referred to the Master June
1, 1936 (R. p. 118), to report thereon in connection with
his report on the accounting. The Master revorted June
94, 1936 (R. pp. 129 and 153), denying the Petition to Re-
open and finding damages of $3120. The District Court
(Judge Fee succeeding Judge MeNary, who had died in
the meantime), March 20, 1939 (Opinion R. p. 217), affirmed
the Master’s rulings but increased the damages awarded
to $8500, and a Final Decree in accordance therewith (R.
p. 242) was entered Oct. 9, 1939.

Respondent appealed from the Final Decree on Dee. 5,
1939 (R. p. 244). The Cireuit Court of Appeals for the
Ninth Cireuit, March 13, 1941, rendered an Opinion (R.

3

on

p. 786, reported in 118 F. (2d) 338) finding the patent in-
valid and dismissing the bill. A Decree in accord was en-
tered the same day (R. p. 793). Petitioner on April 24,
1941, within the time allowed therefor by rule of Court (R.
p. 794), filed a petition for rehearing, which was denied
May 13, 1941 (R. p. 794).

The Court of Appeals rejected petitioner’s contentions
(A) that the questions of validity and infringement of the
patent were not open for consideration, having been waived
by respondent’s failure to appeal from the Interlocutory
Decree (entered after final hearing, and, in fact, final, ex-
cept for the accounting), and that the Court was without
jurisdiction to consider them, and that the only question
was whether the award of $8500 damages under the ae-
counting was correct and proper; and (B) that respondent
could not contest validity of the patent because it failed to
except to the Master’s findings as to validity, as required
by Equity Rule 66 in force at that time, and the Court held
that the Rules of Civil Procedure (Rule 52b) no longer
required such exceptions, and gave the Rules a retroactive
effect three years prior to their actual operation.

A). The Failure to Appeal From the Interlocutory Decree.

The decision of the Court of Appeals on this question is
directly contrary to the express intent and purpose of Con-
gress in permitting appeals from interlocutory decrees,
and decrees which are final except for the ordering of an
accounting, under 28 U.S.C. See. 227 and 227a.

The appeal statutes here involved are Title 28 U.S.C
Sec. 227 and 227a which read (so far as here material) :

‘
.

‘**Section 227. Where, upon a hearing in a district
court, . . . an injunction is granted, continued, modi-
fied, refused, or dissolved by an interlocutory order or
deeree, or an application to dissolve or modify an in-

4

junction is refused, or an interlocutory order or decree
is made appointing a receiver, or refusing an order to
wind up a pending receivership or to take the appro-
priate steps to accomplish the purposes thereof, such
as directing a sale or other disposal of property held
thereunder, an appeal may be taken from such inter-
locutory order or decree to the circuit court of ap-
peals ; and sections 346 and 347 of this title shall apply
to such cases in the cireuit courts of appeals as to other
eases therein. The appeal to the circuit court of ap-
peals must be applied for within thirty days from the
entry of such order or decree, and shall take prece-
dence in the appellate court; and the proceedings in
other respects in the district court shall not be stayed
during the pendency of such appeal unless otherwise
ordered by the court, or the appellate court, or a judge
thereof. The district court may, in its discretion,
require an additional bond as a condition of the
appeal.””?...

‘‘Section 227a. When in any suit in equity for the
infringement of letters patent for inventions a decree
is rendered which is final except for the ordering of an
accounting, an appeal may be taken from such decree
to the cireuit court of appeals; Provided, That such
appeal be taken within thirty days from the entry of
such decree or from February 28, 1927; and the pro-
ceedings upon the accounting in the court below shall
not be stayed, unless so ordered by that court, during
the pendency of such appeal.’’ (Feb. 28, 1927, ¢. 228,
44 Stat. 1261.)

The Respondent could have appealed from the Interlocu-
tory Decree of Jan. 20, 1936, entered after final hearing, and
which was also final except for the ordering of an accounting,
under either Section, at any time within 30 days, and obtain a

5

full hearing on the merits. Failing to do so, it caused Peti-
tioner to proceed with the accounting, at an expense to him-
self of $3250—a wholly needless and avoidable expense, if
Respondent had appealed from the Interlocutory Decree, as it
should have done.

The express intent and purpose of Congress in 1891 in
permitting appeals from interlocutory decrees granting
injunctions in See. 227, was to prevent the great delay and
expense to the parties of useless accountings, if the Court
of Appeals should hold the Plaintiff’s bill without merit
and thus reverse the District Court, which after final hear-
ing had ordered the injunction and accounting. Previously
the defendant could appeal only from the final decree
after the accounting. Great hardship and expense to liti-
gants resulted from unnecessary accountings and in 1891
the appeal statute was amended to correct that very situa-
tion.

See. 227a was enacted in 1927 to prevent unnecessary
accountings in the special situation where the patent had
expired pending suit, and no injunction could accordingly
be granted, and the defendant thus could not appeal from
the interlocutory decree (final except for the ordering of
an accounting) under See. 227. The language of See. 227a
is broad enough, however, to have permitted Respondent to
appeal in the present case, had it so desired, even though
the patent had not expired and an injunction was granted.

The decision is in conflict with the decision of this Court
in an analogous situation:

Ensten v. Simon, Ascher & Co., 282 U.S. 445 at 457-8
(1930),

and also in conflict with a decision of the Cireuit Court of
Appeals of the Eighth Circuit:

Austin-Western Machinery Co. v. Disc Grader Co., 291
Fed. 301 at 303 (C.C.A. 8, 1923),

6

and is also in conflict with a previous decision of the Ninth
Cireuit, not mentioned in the Court’s Opinion here nor
expressly overruled:

O’Nate v. Bahr, 67 F. (2d) 180 at 181 (C.C.A. 9, 1933).

The decision also construes the Appeal Statutes in con-
flict with the following fundamental and long established
principles of appellate procedure and review:

a). That a party who fails to appeal from an appealable
decree, or who fails to raise questions on a previous appea!
which he could have raised, waives his right to be heard
thereon and cannot raise the same questions in any subse-
quent appeal.

b). That where separate appeals are permitted in vari-
ous stages of a litigation, questions decided on the first
appeal (or which could have been decided) will not be re-
examined on the second appeal. The second appeal brings
up nothing but the proceedings subsequent to the mandate
on the first appeal.

ce). That fragmentary or piecemeal appeals in the same
litigation raising different points successively on the same
record will not be permitted.

B). The Failure to Except to the Master’s Report.

The Court of Appeals, in permitting Respondent to con-
test validity of the patent, after failing to except to the
Master’s findings thereon in Sept., 1935, as required by the
then existing Equity Rule 66, has so far departed from the
accepted and usual course of judicial proceedings as to call
for the exercise of this Court’s power of supervision.

It is settled, of course, beyond any dispute by the deci-
sions of this Court and other Courts of Appeal, that under
established equity practice and Federal Equity Rule 66, a
party cannot raise questions in a Court of Appeals on
which he has failed to except in the Master’s report.

7

The decision of the Cireuit Court of Appeals giving a
retroactive effect to the Rules of Civil Procedure (52b)
effective Sept. 16, 1938, to relieve Respondent from the
necessity of excepting to the Master’s report filed three
years previous, is in conflict with the decisions of the Ninth
Cireut itself and other Circuit Courts of Appeal in:

Hill v. Ohio Casualty Ins. Co., 104 F. (2d) 695, at 696
(C.C.A. 6, 1939) ;

Nielson v. Utah Construction Co., 104 F. (2d) 887, at
892 (C.C.A. 9, 1939) ;

Leach v. Ross Heater & Mfg. Co., 104 F. (2d) 88 at 90
(C.C.A. 2, 1939) ;

Schlaefer v. Schlaefer, 112 F. (2d) 177 at 181-182 (C.
A. D.C. 1940).

QUESTIONS RAISED BY THE CASE.

The case, therefore, raises the following questions:

1. May a party, who after final hearing, fails to appeal
within 30 days from an interlocutory decree granting an
injunction, or from a decree whch is final except for the
ordering of an accounting, as permitted by Title 28 U.S.C.
Sees. 227 and 227a, and causes his opponent to proceed
with the accounting, thereafter appeal from the final decree
after accounting, and raise the same questions as to the
merits of the plaintiff’s claim which he might have raised
on an appeal from the interlocutory decree (or decree
which is final except for the accounting), or is he limited to
matters arising in the accounting and occurring subsequent
to the interlocutory decree (or decree which is final except
for the accounting) ?

2. In other words, does a defendant who, after final
hearing, can appeal from an interlocutory decree grant-
ing an injunction, or from a decree which is final except
for the ordering of an accounting, under Title 28, Sees.

8

997 and 227a, and obtain a complete review of the merits of
the plaintiff’s claim, and can thereby prevent the delay
and expense of an unnecessary accounting, if the plaintiff’s
claim is not sustained by the Court of Appeals, but who
fails to avail himself of his right to appeal, and thereby
causes the plaintiff to proceed with the accounting, waive
his right to be heard as to the merits of the plaintiff’s
claim, and limit himself to an appellate review only of the
award of damages and profits on accounting on his appeal
from the final decree after accounting?

3. Or, in other words, is Title 28, U.S.C. Sees. 227 and
297a to be construed as permitting a party, after final hear-
ing, to withhold his appeal on the merits until after he has
put his adversary to the trouble and expense of an unneces-
sary accounting, contrary to the express purpose of Con-
gress in permitting appeals from interlocutory decrees,
and deerees which are final except for the ordering of an
accounting, under Sees. 227 and 227a?

4. Are the new Rules of Civil Procedure, and particu-
larly Rule 52(b) thereof, which became effective Sept. 16,
1938, retroactive in their operation to relieve a defendant
from the necessity of excepting within 20 days to a Master’s
Report filed Sept. 4, 1935, as required by the then exist-
ing and applicable Equity Rule 66?

These important questions of Federal law under Title
28, U.S.C. Secs. 227 and 227a, have never been passed upon
by this Court. It is of utmost importance that they should
be. These questions have troubled the Cireuit Courts of
Ay yeals since 1891 and a proper answer is essential to the
orderly and efficient administration of justice, in both trial
and appellate Federal courts, in preventing the great waste
and delay of useless accountings, and in preventing the
overcrowding of the already over-burdened Cireuit Courts
of Appeals with unnecessary fragmentary and piecemeal
appeals.

9

The decision of the Court of Appeals in relieving Re-
spondent of the necessity of excepting to the Master’s
Report as to validity of the patent, as required by the then
existing Equity Rules, by applying the new Rules of Civil
Procedure not effective until three years later, is so con-
trary to settled law and practice, and so far a departure
from the accepted and usual course of judicial proceedings,
as to clearly require the intervention of this Court, we
respectfully submit.

REASONS RELIED ON FOR THE ALLOWANCE OF THE
WRIT.

Your Petitioner respectfully prays that the Writ be
allowed for the following reasons:

1. Because the decision of the Circuit Court of Appeals
herein disregards, and is contrary to, the express intent
of Congress in permitting appeals under Title 28, U.S.C.
Sees. 227 and 227a.

2. Because the decision herein is in conflict with the deci-
sion of this Court in Ensten v. Simon, Ascher & Co., 282
U.S. 445 at 457-8 (1930) in an analogous situation.

3. Because the decision of the Cireuit Court of Appeals
herein is in conflict with the decision of the Cireuit Court of
Appeals for the Eighth Circuit in Austin-Western Ma-
chinery Co. v. Disc Grader Co., 291 Fed. 301-303 (C.C.A.
8, 1923) and with its own previous decision in O’Nate v.
Bahr, 67 F. (2d) 180-181 (C.C.A. 9, 1933) not referred to
herein nor expressly overruled.

4. Because the Cireuit Court of Appeals herein has
improperly construed Title 28, U.S.C. Sees. 227-227a in a
manner conflicting with fundamental and long established
principles of appellate procedure.

5. Because the public interest in the avoidance of un-
necessary accountings and fragmentary and piecemeal
appeals, with the great waste of time of courts, masters

10

and litigants, and the needless expense caused thereby, and
in the prompt and efficient administration of justice, in
both trial and appellate courts, requires that the question
as to the effect of failure to appeal from an interlocutory
decree involving an injunction, and which is final except
for the ordering of an accounting, under 28 U.S.C. Sees.
227 and 227a, be settled.

6. Because it thus appears that an important question
of Federal law and procedure is presented, which has not
been, but should be expressly decided by this Court.

7. Because the Court of Appeals, in relieving Respond-
ent of the necessity of excepting to the Master’s Report, as
required by the Equity Rules in force at that time, and
giving retroactive effect to the Rules of Civil Procedure
not effective until three years after the Master’s Report in
qustion, has so far departed from the accepted and usual
course of judicial proceedings as to require the exercise of
this Court’s powers of supervision.

8. Because the decision of the Court of Appeals herein
as to respondent’s failure to except to the Master’s Report
on validity of the patent is contrary to the decisions of that
Court itself and other Cireuit Courts of Appeal, in Hill v.
Ohio Casualty Ins. Co., 104 F. (2d) 695, at 696 (C.C.A.
6, 1939); Nielson v. Utah Construction Co., 104 F. (2d)
887, at 892 (C.C.A. 9, 1939) ; Leach v. Ross Heater & Mfg.
Co., 104 F. (2d) 88 at 90 (C.C.A. 2, 1939); and Schlaefer
v. Schlaefer, 112 F. (2d) 177 at 181-182 (C.A.D.C. 1940).

PRAYER.

Wuererore, your Petitioner respectfully prays that a
Writ of Certiorari be issued out of and under the seal of
this Honorable Court, directed to the Circuit Court of
Appeals for the Ninth Circuit, commanding that Court to
certify and to send to this Court for its review and deter-
mination, on a day certain to be named therein, a full and

11

complete transcript of record and all proceedings in the
case numbered and entitled on its docket No. 9485, Bing-
ham Pump Company, Inc., a corporation, Defendant-Appel-
lant v. Leonard L. Edwards, Plaintiff-Appellee, and that the
said Decree of the Cireuit Court of Appeals for the Ninth
Circuit may be reversed by this Honorable Court, and that
your Petitioner may have such other and further relief in
the premises as to this Honorable Court may seem meet
and just; and your Petitioner will ever pray.

LEONARD L. EDWARDS, Petitioner,

by Georce P. Drxez,
Crepric W. Porter,

Attorneys.

Joun F. McCartuy,
of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0697%3A1. Public record. Not legal advice.