Opinion · Court of Appeals for the Second Circuit

Bereslavsky v. Caffey

161 F.2d 499

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1947-05-07
Topic
general

holding that a party may demand a jury trial when his amended complaint raised a new form of legal relief, not raised in a previous complaint

Citator

Cited by
42 opinions
BERESLAVSKY v. CAFFEY,161 F.2d 499(2nd Cir. 1947)
BERESLAVSKY v. CAFFEY, United States District Judge.
No. 20618.
Circuit Court of Appeals, Second Circuit.
May 7, 1947.
Petition by Euphime V. Bereslavsky for a writ of mandamus directed to the Honorable Francis G. Caffey, United States District Judge of the United States District Court for the Southern District of New York, commanding the respondent to vacate an order striking out petitioner's demand for a jury trial in an action pending before the respondent.

Petition granted.

On August 8, 1944, plaintiff began this suit alleging infringement of his patent, that the action was brought under R.S. § 4921, 35 U.S.C.A. § 70, and asking for preliminary and final injunctions together with profits and damages. The patent, by its terms, would not expire until May 21, 1946. The defendant having filed an answer and an amended answer, the case was at issue on February 2, 1945, and preparations for trial began. On July 21, 1945, the Judge Advocate General, by a letter suggested that, as the trial might involve disclosure of data inimical to the United States, "every effort be made to secure a postponement of the trial until after the present emergency." Accordingly, on September 4, 1945, the parties stipulated that the case be removed from the trial calendar subject to restoration by either party on motion or stipulation supported by a "release" from the Judge Advocate General. The district court on September 6, 1945, entered an order in accordance with the stipulation of September 4, 1945. The trial was still in this suspended condition on May 21, 1946, when the patent expired. The plaintiff then promptly moved to amend his complaint by striking the allegation that the action was brought under § 4921 and the prayer for relief, and by substituting an allegation that the action was brought under R.S. § 4919, 35 U.S.C.A. § 67, seeking solely money relief. The district court granted this motion on September 30, 1946. On the same day, plaintiffs served and filed a demand for trial by a jury. Defendant moved to strike this demand. The district judge granted this motion, purporting to act pursuant to Federal Rules of Civil Procedure, rule 38(b) and (d), 28 U.S.C.A. following section 723c. Plaintiff then filed a petition in this court for a writ of mandamus, directing the judge who entered that order to vacate it. The respondent has filed his return.
Pennie, Edmonds, Morton Barrows, of New York City, for petitioner.

Herbert C. Smyth, Jr., of New York City, for respondent.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
FRANK, Circuit Judge.
The judge erred in striking the jury demand, despite the fact that morePage 500than ten days had elapsed from the service of the last pleading directed to the issues as made by the original complaint and amended answer. For, under that complaint, the plaintiff was not entitled to demand a jury, since the relief he then sought was exclusively "in equity," so that there was then no "issue triable of right by a jury." When, by amending his complaint, he abandoned his prayer for such "equitable" relief, he then, for the first time, was in a position to demand a jury, for only then did there come into being an issue "triable of right by a jury." He made his demand well within ten days thereafter.

Defendant seems to suggest that the Rules have completely obliterated, for substantive as well as procedural purposes, the historic differences between "law" and "equity." We cannot agree.1Those who favor it should have in mind that such obliteration, as to substantive rules, might deprive us of the inestimably valuable flexibility and capacity for growth and adaption to newly emerging problems which the principles of equity have supplied in our legal system. The procedural merger is undoubtedly desirable. A transplanted civilian, however, has shown us the disadvantages of a system in which "law" and "equity" are fused not only as to procedure but also as to substantive rules;2and another writer has pointed to the danger that, if the courts are not watchful, the procedural fusion may cause a hardening of equity3in its substantive aspects. But our decision here involves no issue of "substantive" equity.3

We consider inapposite Clark v. Wooster,119 U.S. 322, 328, 7 S.Ct. 217, 30 L.Ed. 392, and Rice Adams Corporation v. Lathrop,278 U.S. 509, 515, 49 S.Ct. 220, 73 L.Ed. 480. For, in each of those cases, the defendant — not the plaintiff — sought to have the action discontinued in equity after the patent had expired, although suit had been begun before that expiration; consequently, as the plaintiff had not elected to substitute a law action for his equity action, the court, which had originally obtained equity "jurisdiction," had discretion to retain such "jurisdiction." It is of no moment that we believe that trial by a jury of a patent suit is usually undesirable, since it is well settled that such a trial may be demanded where the sole claim is for money, if the demand be timely, as we hold it was here.4Page 501

There can be no doubt of our power in such a case to issue a writ of mandamus, as it is in aid of our appellate jurisdiction.5

The writ will issue directing the respondent to vacate the order striking the jury demand.
  1. In Ettelson v. Metropolitan Life Ins. Co.,317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176, the Court refused so to agree even as to one procedural matter. ↩
  2. Pekelis, Legal Techniques and Political Ideologies, 41 Mich.Law R. (1943) 665, 689, 691. Pekelis writes: "If someone were compelled to explain the essence of civil law to a common lawyer in one sentence, he could perhaps say that civil law is what common law would have been if it had never known a court of chancery. * * * The picture of conflicting and coexisting jurisdictions is * * * inconceivable to a Latin or even a German lawyer, who believes in * * * the uncompromising and sometimes cruel unity of the legal order." See also Pekelis, Administrative Discretion and The Rule of Law, 10 Social Research (1943) 22.

    Cf. Holdsworth, History of English Law, I (3d Ed. 1922) 449: "The Roman praetor urbanus administered both law and equity; and therefore it was easier to fuse the two systems: the Chancellor and the common law judges were distinct and often rival authorities. Thus Justinian could effect what the English Judicature Acts could not effect. He fused law and equity: they, for the most part,only fused the courts which administered lawand equity."(Emphasis added.) ↩
  3. Emmerglick, A Century of The New Equity, 23 Tex.L.R. (1945) 244. He points, inter alia, to the fact that, after the procedural fusion in England, an English judge, sitting in the Chancery Division, said, "This Court is not a Court of conscience * * *". Telescriptor Syndicate Limited [1903] 2 Ch. 174, 195, 196.

    Pound, The Decadence of Equity, 5 Col. L.Rev. (1905) 1, 25, 29, noted the enactment of the fusion statutes as one of the causes of equity's decadence. See also Stone (later Chief Justice Stone), Book Review, 18 Col.L.R. (1918) 97; cf. Bordwell, The Resurgence of Equity, 1 Un. of Chi. L.R. (1934) 741, 750. ↩
  4. The wording of the federal statute authorizing fusion can leave no doubt that it was not intended to affect "substantive" rights. ↩
  5. Plaintiff's shift to a "law" action is here peculiarly justifiable, as the long delay, during which his patent expired, resulted from compliance with the suggestion of the Judge Advocate General. But we do not rest our decision on that ground. ↩
  6. See 28 U.S.C.A. § 377; Ex parte Republic of Peru,318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; U.S. Alkali Association v. U.S.,325 U.S. 196, 204, 65 S.Ct. 1120, 89 L.Ed. 1554; Los Angeles Brush Mfg. Corp. v. James,272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481; Ex parte Peterson,253 U.S. 300, 305, 40 S.Ct. 543, 64 L.Ed. 919. ↩