Medusa Concrete Waterproofing Co. v. McCormick Waterproof Portland Cement Co.

PAGE, Circuit Judge. There are three questions raised in this case: [1] 1. Whether District Courts have power to render summary judgments on supersedeas bonds, statutory in form, given under section 1660, U. S. Compiled Statutes 1916 (R. S. § 1000), and rule 13 [982] of this court (150 Fed. xxviii, 79 C. C. A. xxviii). This is answered affirmatively, on authority of Pease v. Rathbun-Jones Eng. Co., 228 Fed. 278, 142 C. C. A. 565; Id., 243 U. S. 278, 37 Sup, Ct. 283, 61 L. Ed. 715, Ann. Cas. 1918C, 1147. [2] 2. In an appeal from a decree finding infringement of a patent, granting a permanent, injunction, and ordering a reference to a master to take and state an account of profits, etc., whether such profits, etc., all arising before the taking of the appeal, but ascertained after and fixed by a final decree, were such “damages” as were covered by the statutory condition of the bond? The bond covered only damages for delay caused by the appeal, and all costs, including the remanding order. Pease v. Rathbun-Jones Eng. Co., 228 Fed. 278, 142 C. C. A. 565; Racine Engine & M. Co. v. Confectioners’ M. & Mfg. Co., 234 Fed. 879, 148 C. C. A. 474. [3] 3. It is unnecessary, in view of our findings above, to answer •the question whether the surety was entitled to notice of the hearings before the master on the accounting which formed the basis of the final decree. However, such sureties become quasi parties (Babbitt v. Finn, 101 U. S. 7, 25 L. Ed. 820), and are entitled to notice and an opportunity to be heard on matters by which they are to be bound. The case is reversed and remanded, with costs to appellant, but with direction to permit Medusa Concrete Waterproofing Company to amend its papers, so as to make proper showing as to damages and costs to the extent herein permitted.