INTERNATIONAL WIRELESS TELEGRAPH CO. v. FESSENDEN

INTERNATIONAL WIRELESS TELEGRAPH CO. v. FESSENDEN. (No. 2.) (Circuit Court, D. New Jersey. August 16, 1904.) 1. Patents — Dismissal for Want of Jurisdiction — Costs. Where a bill for infringement is dismissed for want of jurisdiction, costs cannot be awarded to defendant. ¶. See Costs, vol. 13, Cent. Dig. § 16. On Motion for Costs to Defendant on Dismissal of Bill T. J. Johnston, for the motion. E. B. Beaming and W. S. Darnell, opposed. [MAJORITY — ARCHBALD, District Judge.] ARCHBALD, District Judge. The opinion of Judge Kirkpatrick (now deceased) discloses that the bill was directed to be dismissed not so much on the ground that the subpoena had not been properly served —which possibly could be cured, and as to which the conclusion simply was that the return of the marshal should be quashed — but on the ground that, although brought against one who, on the face of the pleadings, was admittedly a nonresident of the district, it failed to state the necessary facts to give jurisdiction in such cases. Act March 3, 1897, c. 395, 29 Stat. 695 [U. S. Comp. St. 1901, p. 589]. It was not alleged, for instance, that any act of infringement had been committed within the district, nor that the defendant had a regular and established place of business there, with an agent in charge upon whom service could properly be made. In other words, the case, as stated in the bill, was one over which the court had no jurisdiction; and, if so, it is not one in which costs can be awarded. Citizens’ Bank of Louisiana v. Cannon, 164 U. S. 319, 17 Sup. Ct. 89, 41 L. Ed. 451. The motion for costs to the defendant is refused. Specially assigned.