U.S. Court of Appeals for the Sixth Circuit, 1916

Wagner v. Meccano

U.S. Court of Appeals for the Sixth Circuit · Decided October 11, 1916 · Denison, Knappen, Warrington

235 F. 890; 149 C.C.A. 202; 1916 U.S. App. LEXIS 2236

Counsel

Toulmin & Toulmin, of Dayton. Ohio, for appellants., Reeve Dewis, of Washington, D. C., and Ralph D. Scott, of New York City (Healy, Ferris & McEvoy, of Cincinnati, Ohio, on the brief), for appellee.

Cases that cite this one

10 later published cases cite this decision.

Duke Power Co. v. Greenwood County (4th Cir. 1937)
Jensen v. New York Life Ins. Co. (8th Cir. 1931)
Sundh Electric Co. v. Cutler-Hammer Mfg. Co. (2d Cir. 1917)
Firestone Tire & Rubber Co. v. Seiberling (6th Cir. 1917)
Switzer v. Marzall (District Court, District of Columbia 1951)
Partridge v. St. Louis Joint Stock Land Bank (8th Cir. 1942)
United States v. Newbury Mfg. Co. (1st Cir. 1941)
In re Robertshaw (Court of Customs and Patent Appeals 1935)
Brick v. A. I. Namm & Sons, Inc. (District Court, E.D. New York 1927)
Baltimore S. S. Co. v. Phillips (2d Cir. 1925)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

After an interlocutory decree in favor of plaintiff in a patent case, and after an appeal to this court has been allowed and perfected, but before the statement of evidence h^s been settled in the District Court, and so before the transcript has been filed in this court, the deféndant discovers a new anticipation, and moves this court for an order authorizing and directing the district court to reopen the case to receive further evidence.

[1] If the decree below had been final, the jurisdiction of that court to reopen would have been lost by the perfected appeal; and, whether or not with this decree it had power, that court would hesitate to entertain any kind of proceedings looking to revision unless this court so ordered. We think it would be the most satisfactory practice in the sit-*891nation here existing that this court should authorize the District Court to receive and consider the application from the same point of view as if it had been made before the appeal was perfected; that, if the District Court should think reopening proper, it should certify to this court a request for dismissal of the appeal and the remanding of the record for that purpose; and this court could then dismiss the appeal accordingly, and without prejudice. Roemer v. Simon, 91 U. S. 149, 23 L. Ed. 267; Cimiotti Co. v. American Co. (C. C. A. 2) 99 Fed. 1003, 39 C. C. A. 677; Nutter v. Mossberg (D. C. Mass.) 118 Fed. 168; Mossberg v. Nutter (C. C. A. 1) 124 Fed. 966, 60 C. C. A. 98; Greene v. United Co. (C. C. A. 1) 124 Fed. 961, 60 C. C. A. 93.

[2] The lapse of a term while the cause was in this court would not deprive the District Court of the power, after such dismissal and remanding, to set aside the decree and reopen the case; at least where the decree was, as here, interlocutory. Mossberg v. Nutter, 124 Fed. 966, 967, 60 C. C. A. 98.

In the meantime, and for such period as the District Court approves, the time for filing the record on the appeal now pending can be extended. If the District Court should not think proper to reopen, then the appeal can proceed, and the party desiring reopening can, by ancillary appeal or otherwise, invoke any power of review this court may have.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.