Lovell-McConnell Mfg. Co. v. Bindrim

PER CURIAM. In a suit for infringement of letters patent No. 1,094,403, the defendant pleaded in section 7 of its answer as a defense and in section 8 as a counterclaim $300,000 damages for unfair conduct of the complainant in respect to other patents; threatening of defendant’s customers and a conspiracy in violation of the Sherman Daw. This it claimed the right to do under new rule in equity 30 (201 Fed. v, 118 C. C. A. v), but Judge Veeder in the District Court, upon complainant’s motion, struck these'sections out of the answer. The defendant now petitions for a writ of mandamus directing the judges of the District Court to reinstate said sections, or in the alternative for a writ of certiorari to enable this court to determine whether the defendant has a right to plead the matters stricken out. [1,2] Old equity rule 26 allowed exceptions to be filed to'pleadings for impertinence. New rule 21 (198 Fed.-xxiv, 115 C. C. A. xxiv) abolishes exceptions, but authorizes the court, either upon motion or of its own initiative, to strike out impertinent matter. This was what the District Judge did. It is very important that allegations proposing impertinent issues should be stricken out. If they are not, proofs must be admitted under them and a mass of immaterial testimony taken. The court, in striking out these parts of the defendant’s answer, was exercising its judicial functions upon a question of law. The cases cited show that new equity rule 30 has been differently construed by different judges. We are not authorized to construe it upon mandamus, and if Judge Veeder made a mistake of law it is to be corrected by appeal from the final- decree. If we have a right to issue a writ of certiorari to correct error under section 262 of the Judicial Code, we certainly will not issue it in an appealable case. The petition 'is denied.