L. E. Waterman Co. v. Parker Pen Co.

' BRADFORD, District Judge. The matter before us for decision is a motion to dismiss the appeal of the L. E. Waterman Company from an order of the circuit court for the eastern district of Pennsylvania setting aside the service of a subpoena ad respondendum, in a suit brought by that company against The Parker Pen Company, the appellee. 100 Fed. 544. The bill charges infringement of certain letters patent owned by the complainant for improvements in fountain pens, and contains the usual prayers for profits, damages and an injunction. The Waterman company is a corporation of New York and the Parker company is a corporation of Wisconsin. The second paragraph of the stating part of the bill contains the following averments: “The said defendant has, and at all the times hereinafter mentioned had, a regular and established place of business in the City of Philadelphia, State of Pennsylvania, and Eastern District of Pennsylvania, and the acts of infringement hereinafter complained of, or some of them, were committed in said City of Philadelphia, State of Pennsylvania, in the Eastern District of Pennsylvania.” The marshal made return on the subpoena he had served the same on the Parker company in Philadelphia “at the place of business of said company, in the National Export Exposition, by giving a true and attested copy thereof to William A. Schacht, agent in charge, and making known the contents of same to him.” The defendant subsequently caused a special appearance to be entered for it “for the purpose, and only for the purpose, of objecting to the jurisdiction of this 'court,”..and thereafter the defendant’s solicitor, pursuant to due notice, submitted a motion supported by affidavits for an order vacating and setting aside the service of process upon the defendant in this and another suit between the same parties. The motion was granted; the order being as follows: “And now, this 16th day of February, 1900, on motion of counsel for the defendant, it is ordered that the service of process in each of these cases be vacated and set aside.” Eroin this order the present appeal was taken. The motion to dismiss is based on two alternative grounds, namely, (1) that the order was not a final decision or decree from which an appeal would lie,,and (2) that, if it should be held a final decision or decree, the case is one in which the jurisdiction of the circuit court was in issue, and an appeal would iie only to the supreme court. Tinder the provisions of the act establishing the circuit courts of appeals, as it stood at the time this appeal was taken and now stands, save in certain excepted cases with which we are not here concerned, an appeal lies to this court only from. a.“final decision” of-the lower court. This phrase means a final decree or a final judgment, as the case may be. We do not regard the order appealed from either in form or in substance as a final decree. The precise question involved in the decision of the motion for the order is clearly indicated by the following language of the learned judge below : “This return is not conclusive of the question whether the place to which it refers was or was not a regular and established place of business of the [143] defendant; and if it was not in fact snch a place, no valid service has been made.'” Tho point before the court below for determination was whether there had been a valid service of the subpoena, and it was held that such service had not been effected for the reason that the space occupied by the defendant in the National Export Exposition in Philadelphia was not a regular and established place of business of the defendant, and therefore service could not validly be made on Sehacht, wrho was in charge of such space. The learned circuit judge evidently did not consider the decision of the motion before him as necessarily a final disposition of the suit. If he had taken that view, it is fair to assume that the order setting aside would have been followed by or incorporated in a decree dismissing the bill. The act of March 3, 1897, entitled “An Act Defining the jurisdiction of the United States circuit courts in cases brought for the infringement of letters patent” (29 Slat. 695), provides as follows: “That in suits brought for the infringement of letters patent the circuit courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a. person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting snch business in the district in which suit is brought.” The bill does not state that the defendant had only one regular and established place of business in Philadelphia, and that such place was in the National Export Exposition. The exposition is not mentioned in the bill. The averment is that the defendant had a regular and established place of business in Philadelphia, and that acts of infringement had been committed by the defendant iff that city. It by no means follows that, because the defendant had not such a place of business in the exposition, it might not have had'one or more such places of business elsewhere in Philadelphia; nor are we ready to hold that because one writ of subpoena in this case has proved ineffectual valid service of another may not be made. We -therefore do not regard the order appealed from as in any sense a final decree either in substance or in form. This conclusion is supported by the authorities. In re Grossmayer, 177 U. S. 48, 20 Sup. Ct. 535, 44 L. Ed. 665; Ex parte Schollenberger. 96 U. S. 369, 24 L. Ed. 853. But it is unnecessary further to pursue this line of discussion; for the appellant is confronted with a dilemma fatal to this appeal. From a final decree of a circuit or district court on a question of jurisdiction, whether of the cause or of the person, the appeal lies directly to the supreme court, and this court is without jurisdiction to entertain it. Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602. The order of the court below setting aside service of the subpoena was either a final decree or it was not. If it was not, no appeal lay to this court. If if was, this court is without jurisdiction in the premises, the appeal lying only to the supreme court. In nei [144] tiier aspect of the case can the appeal be sustained. The motion to dismiss is granted.