Von Schmidt v. Von Schmidt

Searls, C. This is an action to establish the interest of plaintiff in certain patented inventions, the patents for which inventions issued to the defendant; to have defendant decreed to be a trustee of plaintiff, and to have him account to plaintiff for the profits arising therefrom.

A final judgment was rendered in favor of defendant September 10, 1892, from which plaintiff appeals.

The cause comes up on the judgment-roll without any statement or bill of exceptions.

The point made on behalf of appellant is that there are two judgments in the case, the latter of which (being the one from which this appeal is taken) is void.

The record shows that the amended complaint was filed May 6, 1890.’ Defendant answered September 29, 1890, denying all the material allegations of the complaint, and setting up the statute of limitations.

There is in the record what purports to be a decree in the cause, and to have been entered and recorded July 18, 1892, which recites that, in February, 1892, defendant, pursuant to notice, was subpoenaed to appear before John P. Poole, a notary public, to be sworn and to testify as a witness in said cause; that he appeared before the notary at the time and place named, and that he then and there refused to be sworn as a witness in [549]said cause or to testify as a witness therein without any reason for such refusal, whereby the plaintiff was deprived of the benefit of his testimony, whereupon it was, on motion of the plaintiff, ordered that the answer of the defendant be stricken out, and no leave to answer having been applied for, and the default of defendant for want of an answer having been entered, etc.

The dbcree then proceeds in the usual form to adjudge plaintiff and defendant joint inventors of certain patents, and equally interested therein, etc.; it then proceeds to decree the defendant to he a trustee of plaintiff of an undivided one-half of the profits, etc., recites that the examination of a long account is necessary to a complete determination of the rights of the parties, and refers the cause to a referee to take and report an account, etc.

The record further shows that thereafter, and on the seventeenth day of August, 1892, the cause came on regularly to be heard before the court sitting with a jury, to try special issues submitted by the court and to render a verdict advisory to said court; that counsel appeared for the respective parties, evidence was introduced by the parties, the cause argued by counsel and submitted to the jury upon certain special issues; that the jury rendered a verdict upon each of the special issues in favor of the defendant and against the plaintiff, which verdict was received and recorded and the cause submitted to the court for decision.