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3 F.(20) 577 applying the law of the case, is Lackner v. entire cause because, since the submission of Starr, 2 F.(20) 516, decided at the last ses- the case on this appeal, the original patent sion.

was surrendered and a reissue patent grantThe rule is expressed in Re Sanford Fork ed, must be denied. It is unnecessary for & Tool Co., 160 U. S. 247, 16 S. Ct. 291, 40 L. us to consider what the effect of a surrender Ed. 414, and restated in Re Potts, 166 U. S. and a reissue, not modifying in any man266, 17 S. Ct. 521, 41 L. Ed. 994, as follows: ner the claims in suit, but adding another "When a case has been once decided by this claim, would be, if the suit on the original court on appeal, and remanded, * * patent were undetermined, or a decreo whatever was before this court and disposed therein were interlocutory in the true sense of by its decree is considered as finally set as to the merits of the patent controversy; tled. The Circuit Court is bound by the de- in the case before us, the surrender and recree as the law of the case, and must carry issue were effective only after the entry of it into execution, according to the mandate. the decree determining validity and inThat court cannot vary it, or examine it for fringement and granting a permanent inany other purpose than execution, or give junction; and in National Brake & Electric any other or further relief, or review it, Co. v. Christensen et al., 258 F. 880, 169 C. even for apparent error, upon any matter C. A. 600, decided April 29, 1919, we held, decided on appeal, or intermeddle with it, on full consideration, that such a decree was further than to settle so much as has been final in essence, even though interlocutory in remanded. • * . If the Circuit Court time relation. The rights of the parties are mistakes or misconstrues the decree of this determined as of the date of such a decree, court, and does not give full effect to the a subsequent surrender of the patent does mandate, its action may be controlled, ei- not involve an abandonment of such rights ther upon a new appeal (if involving a suffi- (Mevs v. Conover, 125 U. S. 144, 145, 23 L. cient amount) or by a writ of mandamus to Ed. 1008), and the recovery on the accountexecute the mandate of this court."

ing will not be based upon the surrendered Turning to the record to ascertain what patent, but upon that decree which itself was decided on the former appeal, and what is based upon a patent in full force at the fact or facts, if any, supposedly new, were date of its entry.” brought to the attention of the District To determine whether there should be a Court which occasioned the change in the reversal of the order now appealed from, we decree, we find that subsequent to the entry are first confronted with the existence of of the original decree in the District Court, error in our previous decision, and, if such appellant, the holder and owner of the pat- exists, the application of the law of the ent herein involved, filed “a petition and ap- case to the facts of this case. The degree plication to surrender said Guth patent, No. of finality accorded the decree upon the for. 1,076,418, and to grant a reissue patent on mer hearing, based upon the authority of said application and said surrender of said the Christensen Case, 258 F. 880, 169 C. C. original patent,” and pursuant to "said peti- A, 600, is at variance with the views extion and application there was granted and pressed in the subsequently decided case of issued a reissue patent, No. 14,680.” Such Simmons Co. v. Grier Bros. Co., 258 U. S. fact, however, was brought to the attention 82, 42 S. Ct. 196, 66 L. Ed. 475. The writer of the Circuit Court of Appeals on the of this opinion, the only judge of the presprevious appeal, where appellee (then ap-' ent court who participated on the previous pellant), in addition to attacking the valid- hearing, acknowledges bis full share of reity of the patent in suit and disputing its sponsibility for the conclusion there reachinfringement, asked that the cause be dis- ed. We at that time relied upon the law as missed because, "subsequent to the entry of announced in the Christensen Case. Had the decree in the District Court, patentee the case of Simmons Co. v. Grier Bros. Co., had surrendered its patent and sought to supra, been decided, a different conclusion secure a reissue patent.”

would have been announced. Disposing of that issue, this court said: [2] There is no room for controversy as “Appellant's motion for a dismissal of the to the effect of the surrender of the patent

sued upon and the issuance of a reissue patC. C. A. 497; Great Northern Ry. Co. v. West- ent. The surrender of this patent, followed ern Union Tel. Co., 174 F. 323, 98 C. C. A. 193; by the issuance of a reissue patent, not only Burns v. Cooper, 153 F. 151, 82 C. C. A. 300; nullified the original patent. but took from James v. Central Trust Co., 108 F. 931; State v. Dickinson. 63 Neb. 872. 89 N. W. 431: Smith the patentee his right to recover damages v. Vulcan Iron Works, 165 U. S. 526, 17 S. Ct. for infringements committed prior to the 407, 41 L. Ed. 810.

cancellation of the old patent. McCormick

Company V. Aultman Company, 169 U. S. and should not be applied where the law as 606, 18 S. Ct. 443, 42 L. Ed. 875; Reedy announced is clearly erroneous, and estabv. Scott, 90 U. S. (23 Wall.) 352, 23 L. Ed. lishes a practice which is contrary to the 109; Peck v. Collins, 103 U. S. 660, 26 L. best interests of society, and works a manEd. 512; Meyer v. Pritchard, 131 U. S. ifest injustice in the particular case. Mes. CCIX, Appx., 23 L. Ed. 961; Moffit v. Garr, singer V. Anderson, 225 U. S. 436, 32 S. 66 U. S. (1 Black.) 273, 17 L. Ed. 207; Ct. 739, 56 L. Ed. 1152; Johnson v. Cadillac Lattig & Goodrun v. Dean, 117 0. G. 1798. Motor Car Co. (C. C. A.) 261 F. 878, 8 A. Are we in a position to now correct the er- L. R. 1023; Raydure v. Lindley (C. C. A.) ror? In other words, should we apply the 268 F. 341; Chesapeake Co. v. McKell, 209 law of the case? To what extent the law of F. 514, 126 C. C. A. 336; Chase v. United the case should govern the disposition of a States (C. C. A.) 261 F. 833; United States pending suit in the appellate court which Annuity & L. Ins. Co. v. Peak, 129 Ark. made the erroneous pronouncement has al. 43, 195 S. W. 392, 1 A. L. R. 1267; Johnways been and always will be a more or son v. Cadillac Motor Car Co (C. C. A.) less vexatious question.

261 F. 878, 8 A. L. R. 1033. [3] The rule of the "law of the case" dif- The present case is, we think, clearly disfers, to a certain extent, both in the reasons tinguishable from the case of Lackner v. back of it and in its conclusiveness, from the Starr, supra. In fact, a study of the two rule of res adjudicata, and also from the cases may serve to emphasize the distinction doctrine of stare decisis. As to its conclu- which justified the application of the law of siveness, it lies somewhere between the two. the case in Lackner v. Starr, and in rejectIt is doubtless more persuasive upon the ing it in the instant case. In the Lackner v. court that pronounced it than the doctrine Starr Case we found no pronouncement of of stare decisis; but it is, except in the low- the law by the Supreme Court between the er court, not entitled to the conclusiveness dates of the first and second decision. If and finality that is accorded the plea of res error was committed in the rendition of the adjudicata. It is conclusive with the lower first opinion by this court, it was due to a court, and though cases may be found mak- misunderstanding or a misapplication of the ing it also conclusive with the appellate holdings of certain Supreme Court decicourt pronouncing it (Standard Sewing Ma- sions. The same decisions, and no others, chine Co. v. Leslie, 118 F. 557, 55 C. C. A. were cited on the second appeal. 323; Roberts v. Cooper, 61 U. S. [20 How.] [4] In the present case, the court on the 467, 481, 15 L. Ed. 969, and cases there cit- former appeal relied upon a decision which ed; Thompson v. Maxwell, 168 U. S. 451, 18 at that time expressed the law in this cirS. Ct. 121, 42 L. Ed. 539; Development Co. cuit. Between the hearings on the two apof America v. King, 170 F. 923, 96 C. C. peals the Supreme Court announced a deA. 139; U. S. v. Axman, 193 F. 644, 113 C. cision at variance with the opinion expressC. A. 512; Olsen v. North Pac. Lumber Co., ed in the case relied upon (the Christensen 119 F. 77, 55 C. C. A. 665; Thatcher V. Case, 258 F. 880, 169 C. C. A. 600) as auGottlieb, 59 F. 872, 8 C. C. A. 334; Burow thority by this court. Moreover, the opinv. Grand Lodge S. of H., 134 F. 1021, 67 C. ion deals with a matter of practice of large C. A. 679), the better rule appears to be moment to the patent profession. Likewise, that, unless the previous decision is clearly no great hardship follows because appellant erroneous, announces a wrong rule of law, as the holder of a reissue patent, may assert and one mischievous in its practical opera- his rights in a suit thereon unprejudiced by tion, it should be followed.

the decision herein. I appreciate this court has expressed it- Appellant, when it surrendered its patent self as favoring unqualified adherence to No. 1,076,418, and secured in lieu thereof the law as pronounced, whether erroneous or reissue patent No. 14,680, lost its right to not. Standard Sewing Mach. Co. v. Leslie, prosecute its pending suit to final decree. 118 F. 557, 55 C. C. A. 323. Notwithstand- Such facts being brought to the attention of ing the holding of this case, the view that the court wherein the suit is pending, it beappeals to us, and which we adopt, merely came the duty of the court to dismiss the recognizes the law of the case as one of pub- suit. While the decree before us contained lic policy and private peace, and one to be some provisions other than dismissal, apfollowed generally, and departed from rare- pellant is not complaining thereof. ly. It is, however, not an inexorable rule, The decree is affirmed.

8 F.(20) 581 In re L. M. AXLE CO.

promise under authority of Bankruptcy Act,

8 27 (Comp. St. 9611), which sets forth the L. M. AXLE CO. v. WELLS.

subject-matter of the controversy, taken in (Circuit Court of Appeals. Sixth Circuit. connection with report of sale, held to suffiJanuary 9, 1925.)

ciently advise the court and interested parties

as to the trustee's reason for recommending No. 4278.

compromise, and objection that application was 1. Bankruptcy Om 440—Order dismissing peti.

insufficient was untenable. tion to review order approving trustee's report of sale reviewable only on petition to re. Appeal from and Petition for Revision vise.

of Proceedings of the District Court of the An order dismissing petition of bankrupt United States for the Eastern Division of to review referee's order approving trustees the Northern District of Ohio; Paul Jones, report of sale is properly reviewable on petition to revise and not by appeal.

Judge. 2. Bankruptcy Om 252-Jurisdiction to approve

In the matter of the L. M. Axle Comcompromise conferred by Bankruptcy Act not pany, bankrupt. From an order dismissby general orders in bankruptcy.

ing the petition of the bankrupt to review Bankruptcy Act, § 27 (Comp. St. $ 9611), an order of the referee approving the trusconfers jurisdiction on bankruptcy court to ap- tee's report of sale, the bankrupt appeals prove a compromise made by the trustee of any controversy arising in administration of the and petitions to revise. Appeal dismissed. estate, and such jurisdiction is not conferred and order dismissing the petition to review by general orders promulgated by Supreme affirmed. Court in accordance with provisions of section 30 (Comp. St. $ 9614).

Rufus Day, of Cleveland, Ohio (Day &

Day, of Cleveland, Ohio, of counsel), for 3. Bankruptcy Om 22-General orders relating

appellant. to procedure should be enforced, but, where purposes have been accomplished, technical

· Howard F. Burns, of Cleveland, Ohio objection unavailable.

(Howard F. Burns, of Cleveland, Ohio, of The general orders promulgated by Su- counsel), for appellee. preme Court under Bankruptcy Act, $ 30 Before DENISON. MACK. and DONA(Comp. St. $ 9614), in so far as they relate to procedure and prescribe rules of practice, must HUE, Circuit Judges. be construed with reference to the purpose to be accomplished. It is the duty of the bank DONAHUE, Circuit Judge. [1] This case ruptcy court to enforce these orders; but, is here upon a petition to revise and upon where such purposes have been fully accom

appeal from an order of the bankruptcy plished, a mere technical objection is unavailable.

court dismissing the petition of the bank

rupt to review an order of the referee ap4. Bankruptcy 252_Written application for authority to settle controversies held a "pe

proving the trustee's report of sale, includtition" within meaning of general orders. ing as incident thereto, and as part of the

A written application for authority to com- conditions of sale, the settlement and compromise controversies, under Bankruptcy Act, promise of controversies in reference to ( 27 (Comp. St. $ 9611), is a "petition" within debts and other claims due or belonging to the meaning of General Order XXVIII, wheth

the estate of the bankrupt from the purer it be designated “petition" or "application.” [Ed. Note.-For other definitions, see Words

chaser and his associates and debts against and Phrases, First and Second Series, Peti. the bankrupt estate claimed to be due and tion.]

owing to the purchaser.

The case is properly before this court up5. Bankruptcy Om 252-Written application held sufficient to invoke jurisdiction of bank,

on petition to revise. In re Baxter, 269 F. ruptcy court to approve trustee's compro. 344, 346; Barnes v. Pampel, 192 F. 525, 113 mise.

C. C. A. 81. The remedy by appeal and A written application, filed under provision petition to revise are mutually exclusive. of General Order XXXm, is sufficient to in; In re National Discount Co., 272 F. 570. voke jurisdiction of bankruptcy court conferred

For the reasons stated the appeal must by Bankruptcy Act, § 27 (Comp. St. 9611), to approve a compromise made by trustee of any be dismissed. controversy arising in administration of estate, [2,3] The jurisdiction of the bankruptcy and this necessarily includes jurisdiction to de- court to approve a compromise made by the termine sufficiency of application, and, if neces

trustee of any controversy arising in the sary, to grant leave to amend.

administration of the estate is conferred by 6. Bankruptcy 252-Written application of section 27 of the Bankruptcy Act (Comp. trustee for approval of compromise held suf. ficient when construed in connection with re

St. § 9611) and not by the General Orders port of sale.

promulgated by the Supreme Court in acA written application of trustee under Gen- cordance with the provisions of section 30 eral Order XXXIII to have approved a com- (Comp. St. § 9614) of that Act. These

General Orders have the force and effect estate, and this necessarily includes jurisof law, but, in so far as they relate to pro- diction to determine the sufficiency of the cedure and prescribe rules of practice, they application filed for that purpose, and, if must be construed the same as statutes of found insufficient, to grant leave to amend. like character with reference to the purpose Objections to the sufficiency of the apto be accomplished. General Orders plication should be made at the first opporXXVIII and XXXIII cover in part the tunity. In this case the bankrupt appeared same subject-matter and relate particular- in court at least upon two occasions before ly to procedure. They prescribe a rule of any objection whatever was made in referpractice by which any and all persons inter- ence to the insufficiency of this application. ested in the bankrupt estate may be fully At these two hearings the trustee fully statadvised of the matters to be presented to ed the nature of the controversy and his the court for its approval and afford an reasons for believing that it was proper and opportunity to such interested parties to be to the best interest of the bankrupt's esheard. It is the duty of the bankruptcy tate to settle the controversy. The bankcourt to enforce the provisions of these gen- rupt also appeared by counsel, and his oberal orders, but, where the purposes thereof jections to such settlement were fully stathave been fully accomplished, a mere tech- ed. It therefore appears that the banknical objection cannot avail. Montague rupt and all other persons interested in the Mfg. Co. v. Ten Weeges (C. C. A.) 297 F. settlement of this estate were fully advised 221.

of the exact nature of these claims, the conGeneral Order XXVIII provides that the troversy in reference thereto, and the reatrustee, the bankrupt, or any creditor who sons that induced the trustee to think they has proved his debt may file a petition for should be settled and compromised. authority to settle "any debts or other The objection filed by the bankrupt not claims due or belonging to the estate of only attacks the sufficiency of the applicathe bankrupt,” but does not specify what tion, but also contains a plea to the merits, such petition shall contain.

in that it alleges reasons why the compro[4] A written application for authority mise of these debts should not be authorized to settle such controversies is a petition or approved and the sale to Durell should within the meaning of General Order not be confirmed. It therefore appears XXVIII, regardless of whether it be desig- that the purposes of General Order nated "petition" or "application.” In so XXXIII in reference to what the written far as the written application in this case application shall contain were fully accomasks approval or authority to settle debts plished. Pullman Couch Co. v. Eshelman due or belonging to the estate of the bank- et al., 1 F.(20) 885, in which case an aprupt, it meets every requirement of this plication for a writ of certiorari was deGeneral Order.

nied by the Supreme Court. Leach v. Burr, General Order XXXIII relates particu- 188 U. S. 510, 513, 23 S. Ct. 393, 47 L. larly to an application for authority to sub- Ed. 567; Montague Mfg. Co. y. Ten Weeges, mit a controversy arising in the settlement supra. of a demand against the bankrupt's estate [6] However that may be, the application or for a debt due to it, to the determination of the trustee, into which is copied the ofof arbitrators. The provision as to what fer of Durell to purchase, does set forth the shall be set forth in the application is suf- subject-matter of the controversy, and, takficient to show that it is the purpose and in- en in connection with the report of sale tent of this General Order to require the which was heard therewith and as a part application to be in writing. If a contro- thereof, does advise the court and interested versy is to be submitted to arbitrators, it parties as to the reason why the trustee is clear that it would be advantageous, if not was of the opinion that these claims should absolutely necessary, to set forth in writing be compromised. The objection that the the subject-matter of the controversy and application was not sufficient to invoke the the reasons why the trustee thinks it prop- jurisdiction of the court because these reaer to submit that controversy to arbitration. sons were not clearly and distinctly stated

[5] A written application, filed under the in the written application, although fully provision of General Order XXXIII, is appearing in the record of the proceedings sufficient to invoke the jurisdiction of the bad before the referee, and evidently clearly bankruptcy court conferred by section 27 understood by the bankrupt and all other of the Bankruptcy Act, to approve a com- interested parties, cannot be sustained. promise made by the trustee of any contro- Pullman Couch Co. v. Eshelman et al., suversy arising in the administration of the pra; Petition of Baxter in Re Orinoco Co

. 1164, 45 Suref.635 REINECKE V. PEACOCK

583 3 F.(20) 683 (C. C. A.) 269 F. 344, 347; section 269, Ju- Suit in equity by Emelie W. Peacock dicial Code (Comp. St. § 1246).

against Mabel G. Reinecke, Collector of InFor the reasons stated, the order of the ternal Revenue for the First Internal RevDistrict Court dismissing the petition to re-enue District of Illinois, and others. From view is affirmed.

the decree, the Collector appeals, and comDecimis ved 271 UO plainant moves to dismiss the appeal. Mo64520 FER.112 & ultion to dismiss denied, and decree against Öt. 4 81.

the Collector reversed, with directions. REINECKE, collector of Internal Revenue, V. PEACOCK.

Appellant, collector of internal revenue

for the First internal revenue district of (Circuit Court of Appeals, Seventh Circuit.

Illinois, appeals from a decree of the Dis-
December 12, 1924.)

trict Court enjoining the collection of an in-
No. 3431.

come tax assessed against trustees of cer1. Internal revenue 28–That revenue stat. tain property, of which trust appellee is

ute is erroneously construed or unconstitu- one of several beneficiaries. The bill of tional does not give federal court jurisdiction complaint sets out the indenture of trust, to enjoin collection of tax.

which provides that it shall be discretionary That a revenue statute is erroneously con

with the trustees as to what portion of the strued by the department, or even that it is unconstitutional, does not give a federal court income from the trust estate shall be disjurisdiction to enjoin collection of the tax un- tributed, but that, when distributed, such inder it, as against the prohibition of Rev. St. 8 come (above certain fixed charges and pay3224 (Comp. St. § 5947).

ments) shall be divided into six equal parts, 2. Internal revenue On28Collection of tax one of which shall be paid appellee. It is may not be enjoined as incidental to other further charged that for the years 1918 and equitable relief.

1919 the trustees elected to distribute, and That a suit is primarily one between bene

did distribute in each of said years, the enficiaries of a trust and the trustees to declare and enforce the duties of the latter under the tire income, and for said years appellee trust indenture does not extend the equitable and the other beneficiaries included in their power of the court to the restraining of a col- individual income tax returns the amounts lector of internal revenue from the collection of a tax from the trust estate, as incidental to

so received by them as part of their incomes or in aid of the relief sought, unless under for these years, and the income tax thereon very exceptional circumstances, in view of the was duly assessed and paid by the respecprohibition of Rev. St. § 3224 (Comp. St. 8 tive distributees; that the amount of her in5947), though it may enjoin the trustees from

come tax paid upon her said distributive voluntarily paying the tax.

share was for the year 1918 $5,446.14 and 3. United States Om 137—Special appearance

for the year 1919 $17,920.11. of district attorney as amicus curiæ held not

The bill further alleges that in 1923 the to bind the United States. The special appearance of a district at

United States Bureau of Internal Revenue torney in a suit by a beneficiary of a trust maintained that under the Revenue Act of against the trustees, solely to suggest want of 1918 the entire income of the trust estate jurisdiction to grant the relief sought by rea- vastoval

i was taxable to the trustees, and accordingly son of Rev. St. $ 3224 (Comp. St. § 5947), and disclaiming any appearance for the United assessed to the trustees an income tax thereStates, held not a waiver of the application of on, based on the entire income received for the statute, so as to confer jurisdiction after these years, respectively, and demanded the the collector of internal revenue was brought in

payment by the trustees as income tax for as a defendant.

the year 1918 the sum of $119,778.75, and 4. Appeal and error 324–Summons and 1919 $162,842.50, and threatened the trus

severance held not necessary on appeal by tees with penalties if the tax as assessed one defendant.

was not paid by the trustees on or before Where, in a suit by a beneficiary of a trust against the trustees to enjoin them from pay. Nay 4, 1920. 115 Iurther charged

May 4, 1923. It is further charged that ing an internal revenue tax, the collector was the trustees had stated that they had decidsubsequently brought in and an injunction ed they must make the payments demandsought to restrain collection of the tax, the on

the ed, notwithstanding appellee's request that latter issue is so unrelated to the former that on an appeal by the collector a summons and they do not do so, and that they will make severance, or notice to the trustees, was not the payments unless enjoined therefrom by necessary

the court.

The bill sets forth appellee's contentions Appeal from the District Court of the wherefor said assessment by the Bureau of United States for the Eastern Division of Internal Revenue is unlawful and void, asthe Northern Listrict of Illinois.

serting that, if such assessment upon the

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