Supreme Court of United States.
Mr. Irving M. Obrieght and Mr. George C. Dean, for Lovell-McConnell Co., in support of the motion.
Mr. C.A.L. Massie and Mr. Ralph Lane Scott, for Automobile Supply Co., in opposition to the motion.
*386 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
The application is for leave to file a petition for mandamus directing the court below to correct the action taken by it which is complained of or for the allowance of a certiorari to bring up the record in order that such complained of action may be reviewed. We decline to allow leave to file the petition for mandamus, but grant the petition for certiorari and conformably to the stipulation of the parties treat the document made a part of this proceeding as the record for the purpose of the certiorari and proceed to act upon the same treating the case as under submission on the merits.
The Automobile Supply Company appealed to the court below from an interlocutory decree in favor of the complainant, the Lovell-McConnell Company, finding that the patents sued on had been infringed and awarding an injunction and directing an accounting for damages and profits. On such appeal the Automobile Supply Company furnished the clerk of the court below a complete printed record accompanied with a written index of the contents of the same and in consequence of a demand made by the clerk deposited under protest the sum of $696.00 as a fee *387 due the clerk for supervising the printed record so furnished. When after a hearing the court reversed the decree of the trial court, the Automobile Supply Company called upon the clerk either to refund the money charged for supervision or to include it in his statement of the costs to be entered on the mandate. The clerk, being doubtful as to his duty in the matter, refused to do either and insisted that the propriety of the charge be tested to the end that he might act advisedly in the premises. The Automobile Supply Company thereupon moved to direct the clerk to include the supervision fee in the mandate or to refund the amount of the deposit which had been made. The court held that the charge for supervision was lawful and was therefore properly taxable as costs and directed the clerk to retain the money and include a charge for the same in the mandate. The application before us was then made by the Lovell-McConnell Company, the party cast and ultimately bound for the costs, both the parties, however, entering into the agreement as to the record and the submission on the merits which we at the outset stated.
Considering the act of Congress of February 13, 1911, c. 47, 36 Stat. 901, U.S. Comp. Stat. Supp. 1911, p. 275, in Rainey v. W.R. Grace Co., 231 U.S. 703, it was held that the provisions of the act were applicable to the Circuit Courts of Appeals and it was consequently decided that where a printed transcript of the record was filed in compliance with the statute with the clerk of the Court of Appeals no supervision fee could be charged by such clerk. Of course, if that ruling is here applicable, the court below clearly erred in allowing the charge for supervision, and the only possible question therefore is whether the statute, although generally applicable to records filed in the Circuit Court of Appeals, is not so applicable in this case. It is insisted that it is not and the court below so held because as the statute only provides for an appeal from a "final judgment or decree," it does not apply to *388 a case like the one under consideration where the appeal was from a decree interlocutory in character. But without affixing to the statute a latitudinarian meaning upon the theory that to do so is essential to give effect to its purpose and intent and bring every interlocutory decree within its reach, we are of opinion that to exclude an interlocutory decree of the character of the one here involved from the operation of the statute would be to frustrate its plain purpose by a too rigid and unreasoning adherence to its letter. We so conclude because, while in a technical sense the decree here in question was interlocutory, when its character and the scope of the subject-matter which the appeal brought under review and the relief under it which it was competent to afford are considered, we are of opinion it must follow that such decree was within the intendment of this statute a final decree and therefore that error was committed in permitting the supervision charge. Indeed, this view was taken in a well considered opinion by the Circuit Court of Appeals for the Sixth Circuit in a case decided before the ruling in the Rainey Case, supra (Smith v. Farbenfabriken of Elberfeld Co., 197 Fed. Rep. 894), and we approve the reasoning by which the ruling in that case was sustained.
It results that the Circuit Court of Appeals erred in its order approving the charging and retaining the fee for supervision and such order is therefore reversed with directions to the court below to take such steps as may be necessary by recalling the mandate, if needs be, or otherwise, to afford the relief essential to give effect to the conclusions which we have expressed.
Reversed.
