Evening star. [volume] (Washington, D.C.) 1854-1972, 1886-06-12
IN FAVOR OF BELL.
Decision In the Telephone 0ais at New
Orleaus-Injumctton Granted Against
the National COmpany-RevieW OF the
Law and Evidence In the Case.

Judges Pardee and Billings, sitting en- banc,
rendered the following decision May 81:
In this case. ]. ]. Storrow, T. J. Semmes,
Bayne q Denegre and E. II. Dicksrson repre-
| sented complainants, and J. R Beckwith, Far
| rar & Krutschnitt and A. G. Brice for defend
ants.
Circuit court of the United States, eastern dis
S s an vs. R
phone Company ct al. Before d. A. Pardee, CIR.
cult judge, and Edward c. Billings, district
for a preliminary injunction by Bell. answers,
numerous affidavits, dispositions and exhioits
heard the by the e. soil
pertinent and Illustration, for the period Of d
days, and we have strfven to give to the Ques-
entitled from the fact that SO many of our tel
low-ctizens throughout the entire country are
interested in its decision.
A very long discussion, in which solicitors OF
been the one conducted before us-has one
line of demarcation that which is sound in law
and sustained in fact from that which, however
plausible and forsi6iy urged analysis and proof
The compliments have urged that since the
patents involved here have been the subject Of
Of n
tanning their validity. that SO far as the issues
presented in those causes have been Identical
with those involved in this cause, for the pur.
poses OF granting q preliminary Injunction TO
run pendente lite those prior decisions else
where obtained are sufficient We assent TO this
doctrine.
The proofs submitted to US include
DEGREES AFFIRMING THESE PATENTS
| by Mr.. Justice Gray, Mr.. Justice Matthew'S,
Judge Lowell, Judge Blatchford. Judge Wal
lace, Judge Nixon, Judge McKinnon, Judge
more or less length By Mr.: Justice Gray,
Judge Lowell and Judge Wallace. II has
been urged by the respondents that IN all
| these causes save one there was either IN alb
sence OF one or more OF the def0nses here
urged or collision between the parties and
that the DEGREES and decisions submitted and
| referred to above should not of themselves be
| the basis of the decision and decree here. In
| the Molecular case, decided by Judge Wal
lace last June, there has 6een no charge OF
collusion and consequent imposition. We
| the substantial defenses here submitted
have been urged in several OF those cases,
Though, perhaps, they have not been urged
have characterized the defense here), and
that the settled practice in the circuit courts Of
the United States would authorize the granting
of the Injunction pendente lite upon the author.
Ity of the DEGREES In those cases. We do not un-
| derstand that the weight given by one circuit
| tirely upon the basis of comfy, but as well
| upon that of recognized rights and of convent.
ence, and that 1t is largely TO prevent the neces-
! sity of more than one court going through with
! the investigation Of the same facts that the
inference desired by the first court IL tor the
purpose of determining whether or not an in
| junction shall go till the final decree adopted
| by the other circuit courts. In addition to the
weight to be given to the adtudicatioEs in
nized rights, it is urged that the National
here the b. prime
final decree rendered by Judge McKfnnon in
the Pittsburg case, because it was privy to that
| The evidence shows that the National I'm
| proved Telephone company, claiming to own
certain patents pertaining to telephony, was
| no EoQ of ho PthK1 "a I'M n
| tracted for q consideration received, that In
case OF any litigation involving the validity OF
Pittsburg company should be a defendant, the
| said National Improved Telephone company
should have prompt notice thereof, and should
assume control of said litigation, and at Its OBJ
| ton be made party thereto at its own ex-
pense; that the Pittsburg suit
DID INVOLVE THE VALIDITY
of said letters patent; that the National I'm
proved Telephone company was promptly no.
tilted thereof and did assume control Of the
| litigation, preparing an elaborate defense and
| appearing therein by counsel. who were heard
| by the court, and that, becoming dissatisfied
crees OF other circuits in the matter Of prelim-
| mary injunction, the National Improved Tele-
| phone company "ordered the immediate with
| drawaI from the court of all the evidence. In
| struments and documents Of every character
| connected with the defense, and immediately
dismissed the counsel In said case.
In Robbins VS.. Chicago. 4 Black, 657, 1t is
| said:
conclusive effect of Judgments respecting
| parties rests upon the just and expedient axiom
that it is for the interest OF the community that
| a limit should be opposed to the continuance OF
| litigation, and that the same cause Of action
should not be brought twice to final determi-
| nation.
! Parties In that connection include all who
are directly in terested in the subject matter and
| who had Il right to make q defense, control the
| proceedings, examine and crOss-examine wit
| nesses aud appeal from the judgment.
| Persons not having those rights substantially
| arc regarded as strangers to the cause but all
who are directly interested in the suit and have
| knowledge of its tendency and who refuse or
| neglect to appear and avail themselves OF
those righ is are equally concluded by the pro
| ceedtngs.
| See also Chicago vs. Robbins, Black, 49,
To the same effect are Cromwell VS.. County
of Sac, 942. s: 351; Chamberlain VS.. Preb!e. IL
Allen, $40; Tredway VS.. Sioux City, 80 Iowa,
The rule is applied in patent cases. Robert
son VS.. Hill, 6 Fisk, 465; Miller VS.. Liggett,
! Fed. Rep, 10.
No authorities are cited to the contrary, but
counsel have argued that the National Inn.
| draw from the litigation, and that thereupon,
| in some unaccountable way, the company was
| complainant had no right 10 proceed 10 q de-
| We cannot avoid the conclusion that GO far
| as the National Improved Telephone Company
is concerned in this suit that 1t is bound and
| concluded by the final decree rendered at Pitts
aha e e ths ease
4
said telephone company and its privies.
| Since we have had the cause SO extensively
! presented and have SO fully considered 1t, we
| have determined not to rest our conclusions
upon the DEGREES in the other circuits, sufficient
| as we deem those to be, butt TO
| EXAMINE THE QUESTION DE Novo.
1t is argued by the defence that there should
be given a weight to the fact that the execu.
tive department of the government has di-
| rected the institution Of q suit to annul this
| patent that should lead us to refuse or defer
any affirmation of the patentees rights till the
| conclusion of that suit To this We cannot
| assent. The executive department has not in
| this case attempted TO adjudicate rights, nor
could it in any case do more than start the judi
cial inquiry and present the cause to the courts
The fling of an Information cannot create q
presumption of guilt. No more can the institu.
! ton of suit to annul create presumption OF
| annuity. II any effect Is to be given to the
tendency OF this suit TO annul 80 rs TO suspend
any rights of the patentee, 1t could only result
from restraining or other orders issued in that
suit, where the court having the parties and the
! evidence upon which the nullity Is sought TO
| If TO annul them, to suspend the force Of the
patent.
There is a class of cases where tho decisions Of
the executive Is conclusive upon the courta
| This class includes only those which present
| government In q state or In q foreign country
| questions connected with functions Of SOW
| ereignty, where promptness and unity OF action
| in all the departments OF government ere essen
| tial. All questions properly judicial are, by
| the very consultation. embraced within the