November 2, 1937
BROGDEX CO. ET AL.
FOOD MACHINERY CO.
Sur Petition for a Rehearing.
In denying the motion for a rehearing in this case, we avail ourselves of the opportunity to restate the grounds for the ruling made. This will relieve the District Court of a possible embarrassment in disposing of it.
There are, among others, two question which arise: One is whether Florida Brogdex Distributors, Inc., is an indespensable party. The District Court held it to be such, disposing of the case in effect as one set down by the plaintiff under Equity Rule 44 (28 U.S.C.A. following section 723) on this objection, and dismissing the bill. Another is, if the absent party is a proper but not an indispensable party, the trial court should in its discretion, under rules 25 and 39 (28 U.S.C.A. following section 723) proceed to a decree "saving the rights of the absent parties." The trial court ruled upon the first question which automatically excluded the second. We pro forma reversed the decree dismissing the bill, but expressly refrained from ruling the merits of either question. This, as before stated, might well be a cause of embarrassment to the trial court.
As stated in our former opinion, the parties have or may have two wholly different rights. One arises under the patent laws; the other under the contract into which the parties had entered. The case concerns itself only with the latter. Upon the question of the validity or extent of patent rights, the absent party here might well be an indispensable party. On the question of contract rights the absent party, although a proper party, might not be an indispensable party. Rule 39 in terms applies "in all cases." Rule 25, moreover, contemplates an excusable omission of such otherwise proper party.
We now rule that the omitted party here, although a proper party to the bill, is not an indispensable party, and the decree dismissing the bill on this ground is reversed, and the cause is remanded to the District Court, with directions to reinstate the bill and to determine the other questions raised, including that of the exercise of the discretion of the trial court whether to proceed with the cause under rules 25 and 39, saving by its decree the rights of absent parties.
As we are without the aid of any discussion by the District Court of these other questions, we refrain from a discussion of them.
The rehearing is denied.
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