.ORTON fl. WALSB.

769

NORTON

et ale t7.

WAlSH.

(Ot,.ClI:U Oourt, E. D. Wi8consin.

RlnmAllJ1lG-NII1I'LY-DISCOVBBBD EVIPBNOB-LAOBES.

AprilS, 1899.)

Where parties, having in their jOsSeSSion evidence deemed material, appeal without tor a an after six months dlimiss the appeal and &$k for a rehearing on the ground of newIY.:-discovered evidence, their laches is inexcmsable, and the motion should be denied. ..

In Equity. Suit by Edwin Norton and others against Francis A.; Walsh for infringement of patent. Motion for rehearing upon newlydiscovered evidence. Overruled. N. O. Gridley, for the motion. Munday, Evarts k Adcock, opposed. BeforeGRESlIAM, Circuit Judge, and JENKINS, JJistrict Judge. JENKINS, District Judge. The bill was filed for an alleged infringement of certain letters patent of the United States. Upon final hearing before the district judge, an interlocutory decree passed for the complainant on the .5th day of January, 1891. A motion for rehearing W8J! presented to the circuit and district judges on the 25th day of June, and overruled on the 13th day of July, 1891. Thereupon an appeal was prayed and allowed to the circuit court of appeals,. which on the 12th day of January, 1892, was dismissed upon motion of the appellant. The mandate of the appellate court was filed here on the 16th day of January, and the present motion filed on the 18th day of January, 1892. The motion proceeds upon the ground that the inventions claimed under the complainants' patents were anticipated by certain newly-discovered patents disclosed in the moving papers. So far as respects all the patents now sought to be introduced 3S newly-discovered evidence, except No. 79,890, mentioned below, no excuse is stated for failure to plead them or to make timely profert of them in evidence. The answer asserts, in anticipation of the inventions claimed by the complainants, 20 American, 5 English, amI 3 French patents. The search in the patent-office, preliminary to pleading, is stated to have been thorough and exhaustive. These patents now offered as newly-discovered were, so far as disclosed, accessible to the searcher, the then counsel of the defendant. No failore to discover them is asserted. It must be presumed, therefore, that they were known to him, but deemed immateriltl to the controversy. The failure to find letters patent No. 79,890, issued to Becker, Ross, and Sturnagltl, is excused upon the facts stated in the moving papers. But regarding this evidence as newly-discovered, not cumulative, and that due diligence has been used prior to its discovery, we are yet of opinion that this motion must be overruled for failure to make timely presentation of the matter to the court. The patent was discovered by <:lOunsel prior to the argument of the original motion for rehearing in June, 1891. As stated in the moving papers, it was referred to upon that argument, and the court declined to consider it because it was not v,49F.no.10-49

77:0:
within the record. It was the duty of the defendant, if he desired consideration ofthat patent" have this Inotion at that time. Instead of 80 doing, he appealed from the decision' of the court. After a delay of six mol1tbs,heconc1uded to'disrniss his and to resort Nor is it excusable)aches. It to this motion. That is not "ith of justice. be; allowed to parties to withhold evidence in their poss6ssion;aeenl:eti"Inaterial, to decl'ee, and therein failing; or becoming satisfied of the correctness of the decree, to seek a rehearing. upeney,idence in ,their ,possession" and w,hich should hav,e be(orethe appeal,aIldwithin a rea-. sonable time after its discovery. The validity of the complainants' patents is here for the first time adjudicated. It is therefore, that all evidence material to their validity should not have, been presented toaDdTcoD13idereq, ' We cannot, llowever. allow this application without establishing a bad practice. The motion is overruled.. ' "

&

,11. LAMB.

((U'/'CUCt CoUn, B. D. Iowa. C; 'D. March 21, 1899.)
aBII AnlUJ)'(OATA-,.Jl'J!:DERAL

,

A bUl to quiet title in an Iowa court, and, after answeringtbe same, defendant flied a cross:l>iI1;showing title'in himself, and IIsking that the same be quieted plaintuf. "C<>mpla.inant dismissed the bill, but afterwaros ftled answer to the cross-bill t and also filed a Retitlon, as defendant to the cross-bill, to remove the cause to a Iec.eral court, whioh was denied by both the state and the federal cOUc\18·, , After a:hearing on the,cross-pill,and aJ;lswer thereto, the state court rendered, a dllcree tor defendant, which was affirmed by the state supreme court; after'tally deciding that theoross-bill and answer were sufficient to sustain the decreeund"r the,8tatl:!statUtes and pl'a,ctice. Beldt,tblltthe decree constituted a complete liar to a Buit in a federal oourt upon the same allegations contained in the original bIll, even though the cross-bUr and answer would be insut11cient under the rule.. pertaining to equity pleadings in the federal courts.

J;I'1'ATJIl CoUllTS-EQUITY l'J,BAI>INCJ.

. InEquity. Suit &00.. against Newton Lamb to quiet title lands. De<:ree dismissipg the bill, and quieting title to defendant on cross-bill. , . ,, . . Cole, ¥c Veyk Oheahire, for complainant. W. G. Harvison, for defendant.
WOOLBON, District Judge. The cotppJainant, Itussell & Co., an Ohio corporation, ,brings for the qancellationof ,a sheriff's deed for cerlp,in in Iowll., held by defendant, Lamb. The alleges various grounds for the relief prayed, including sale parcels, in violatiopof the statutes of illegally made of by the sheriff after the judgment, unIowa, and that, the sale der ",hose proceeded, had been fully satisfied. And complainant avers title in itself t9 said real estate through sheriff's deed, un-