MANCHESTER v. BURLINGAME

MANCHESTER v. BURLINGAME. Appeal and Error; Appearance. A special appeal from an order overruling a motion to quash a writ of subpoena and to vacate a restraining order, after the entry of a special appearance, and holding that the motion was equivalent to a general appearance by the defendants, and requiring them to plead, was denied. No. 399. Original. Submitted February 6, 1913. Decided February 10, 1913. Ex parte petition by the defendants for the allowance of a special appeal from an order of the Supreme Court, sitting as an equity court, overruling a motion by defendants to quash a subpoena ad respondendum, and to discharge a temporary restraining order. Denied. Statement of facts. On. the filing of the bill of complaint in the court below, a subpoena ad respondendum was issued against the defendants, and on the application of the complainant, the court granted ex parte a temporary restraining order, which enjoined the defendants, their agents, assigns, and attorneys, from filing and prosecuting certain applications for patent in the Patent Office; from divulging secrets obtained from the complainants; and from doing any act to embarrass or hinder the applicants in the prosecution of the applications. The restraining order was made returnable on a date fixed, and was served on Messrs. Church & Church, members of the bar, presumably on the supposition that they were the solicitors representing the defendants in the prosecution of the applications in the Patent Office. The subpoena was returned by the United States marshal “not found;” and thereafter Messrs. Church & Church entered an appearance in the cause in the lower court in the following language: “The clerk will please enter our special appearance herein for the defendants, Arthur Manchester and Harris Spooner, for the purpose (1) of moving to quash the subpoena issued against said defendants on the 16th day of December, 1912; and (2) of moving to vacate and set aside the order of the 16th of December, 1912, directing a restraining order against the said defendants, and for no other purpose.” At the same time Messrs. Church & Church filed a motion reading as follows: “Now come the defendants, specially appearing by their attorneys, Church & Church, for such purpose and none other, 'and move (1) that the subpoena issued against them, the said defendants, on the 16th day of December, 1912, be quashed, and (2) that the order of the 16th day of December, 1912, directing 'a restraining order against them, the said defendants, be vacated and set aside.” The court below entered an order overruling the motion, and, finding that the motion was equivalent to a general appearance by the defendants, gave them ten days within which to plead as advised. The defendants thereupon filed an application in this court for the allowance of a special appeal from such order. Messrs. Church & Church for the petitioners. There was no appearance for other parties. [MAJORITY — Mr. Justice Shepard] Mr. Justice Shepard delivered the opinion of the Court: We are of the opinion that there is no sufficient ground for allowing the special appeal prayed for. In denying the application it is not to be inferred that the court has passed upon the effect of the order made in the court below.