Harper v. Holman

DALLAS, Circuit Judge. Sixteen causes of demurrer have been assigned to this hill of complaint; but, upon the argument, counsel, considerately assenting that it was unnecessary to burden1 the court [223] with all the questions thus raised, agreed that all but the first four assignments should be considered as withdrawn, upon the understanding that the complainants would have leave to move to amend as they might be advised, and that the defendants would be at liberty to renew any of their present objections to the bill, except those now passed upon, and such of them, if any, as should be met and cured by amendment. The four retained assignments are as follows:. “(1) Tlie bill is multifarious in charging infringement of five separate and distinct alleged copyrights, not connected with or related to each other in any maimer. (2) The bill is multifarious in charging infringement of one or more copyrights, and joining therewith a charge of alleged infringement of trade-name or trade-mark, I he latter appearing on the face of the bill to be wholly unrelated to at least four of the copyrights alleged to have been infringed. (3) The bill is multifarious in charging infringement, not only of one or more copyrights, and of a certain alleged trade-mark or trade-name, not having the most remote relation to four of said copyrights, but charging also, and founding a prayer for relief upon, alleged fraudulent or unfair competition in trade generally. (1) The hill is multifarious because the allegation that the five several and distinct and unrelated copyrighted books are capable of conjoint use, or ever have been so used, is obviously untrue on the face of the bill.” The multifariousness averred is claimed to arise, not from misjoin-der of parties, but solely from the inclusion in one suit of several different and distinct grounds of complaint; and therefore the true question is, are there such diverse subjects embraced by this bill as cannot be conveniently considered together? In Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co., 60 Fed. 622, this court said: “Courts of equity are adverse to the multiplication of suits; and no definite rule, of general applicability, has been or can be laid down a» a test of multifariousness. The question, in each instance where it is presented, is largely addressed to the regulated discretion of the judge, and is to be determined with reference to the peculiarities of the particular case, upon considerations which are practical rather than theoretical in their nature.” This view of the matter was again acted upon by this court, in the case of Union Switch & Signal Co. v. Philadelphia & R. R. Co., 69 Fed. 833; and it is now adhered to with confidence, because it seems not only to be in accordance with the decision of oilier courts of first-instance, but also to be authoritatively imposed by a judgment of the supreme court of the United Slates. In Bedsole v. Monroe, 40 N. C. 317, the supreme court of North Carolina, speaking of multifariousness, said: “If the grounds of the bill be not entirely distinct and wholly unconnected, if they arise out of one and the same transaction or series of transactions, forming one course of dealing, and all tending to one end, if one connected story can be told of the whole, then the objection cannot apply.” In U. S. v. American Bell Tel. Co., 128 U. S. 352, 9 Sup. Ct. 90, Mr. Justice Miller, delivering the opinion of the supreme court of the United States, clearly indicated the consideration which is controlling upon the question, in this language: “The principle of multifariousness is one very largely of convenience;” and, referring to the circumstances of the case with which he was dealing, he added: [224] “There Is no such diversity of the subject-matter embraced in the assault upon the two patents that they cannot be conveniently considered together; and although it may be possible that one patent may be sustained, and the other may not, yet it is competent for the court to make a decree in conformity with such finding. It seems to us in every way appropriate that the question of the validity of the two patents should be considered together.” With, the adjudications to which I have referred, and the principle which they plainly enunciate, in mind, X have carefully examined the present bill, in connection with the printed books and papers, which, upon the argument, it was agreed should be taken to constitute a part of the bill itself. This examination has led me to the conclusion that there is no reason for supposing that the infringement charged of the several copyrights in question, as well as of the alleged trade-name or trade-mark, and, in short, every subject-matter proposed for investigation, may not conveniently, and most conveniently, be considered together; and, if each of the alleged infringements had been made the subject of a separate suit, it is, I think, very doubtful, at least, whether it would not have been the duty of the court to decline to entertain such separate suits, without requiring their consolidation. Case v. Redfield, 4 McLean, 529, Fed. Cas. No. 2,494. I do not deem it necessary to decide the particular point presented by the fourth assignment. Whether or not the allegation in’ the bill that the copyrighted books are capable of conjoint use is “obviously untrue,” or, if true, is of-any materiality, are questions upon which my judgment is to no extent based. It rests upon the broader consideration which I have, I think, sufficiently adverted to. The demurrer is overruled, with leave to answer sec. reg.