Western District of New York November 30, 1938. Johnson Metal Products Co. and Detroit Steel Products Co. v. Equity No. 1747 Editorial Headnote In a patent suit which was tried and in which the mandate on appeal was filed before September 16, 1938, the allowance of costs should be governed by the old Rules, which made such allowance discretionary, rather than by Rule 54 (d), in view of the fact that the court expresses doubt as to whether the latter rule makes the imposition of costs mandatory or discretionary. KNIGHT, D.J. This suit was tried and the mandate on appeal filed prior to the effective date of the present Rules of Civil Procedure. It seems that under new Rule 54 (d) the court can exercise its discretion in the matter of costs, but if not, the old Rules should be followed. The application of the new Rules would work an injustice in this suit. Under the old Rules costs were clearly discretionary in the patent suit. The court heretofore allowed the defendant $125 costs. Allowance of $350 in addition thereto is ample and fair under all the circumstances of the case. An appeal from an order of the District Court finding appellant guilty of civil contempt, taken prior to September 16, 1938, in the manner provided for appeals from a criminal judgment, by giving notice of appeal, instead of in the manner provided for appeals from judgments in civil actions, by filing a petition and securing an allowance of the appeal, came on for hearing after the effective date of the Rules. the appeal should be dismissed. Held, Dissenting opinion stated that since the cause came on for hearing after the effective date of the Rules, the provisions of Rule 73, permitting appeals in civil cases to be taken by merely filing notice of appeal, should be applied and that, therefore, the appeal should not bo docidod on tho merits.. Appoal from the District Court of the United States for the District of Montana. Before WILBUR, HANEY and HEALY, Circuit Judgos. WILBUR. C. J. This is an appeal from an order of the District Court finding appellant in contempt of court. The proceedings out of which the contempt order grew were brought under authority of act of Congress, 26 U.S.C.A. 1523(a), as follows: * to enforce summons. If any person is summoned under the internal-revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides shall have jurisidction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data." |