Triangle Conduit & Cable Co. v. National Electric Products Corp. , 127 F.2d 524 ( 1942 )

PER CURIAM.

The appeal in the above cause is from an order denying a motion on behalf of appellants who were defendants below, to restrain the plaintiff from further prosecution of a cause based upon patent infringements; and

It appearing that the motion, while in terms praying for an injunction, is but in substance and effect a motion for a stay of proceedings pending the adjudication of a cause in the District Court of Delaware, wherein the defendant seeks a declaratory judgment; and

It being the view of the court that the order appealed from is not a final appeal-able order and is not one denying an interlocutory injunction within the scope of Section 129 of the Judicial Code, 28 U.S. C.A. § 227, as interpreted in Emery v. Central Trust & Safe Deposit Co., 6 Cir., 204 F. 965; Griesa v. Mutual Life Ins. Co., 8 Cir., 165 F. 48; Cover v. Schwartz, 2 Cir., 112 F.2d 566; and a motion having been made to dismiss the appeal.

It is ordered that the appeal be and it is hereby dismissed; and

Whereas the court is advised that the denial of the motion herein referred to by the District Judge was based, wholly or in part, upon the decision of the District Court for the District of Delaware in a proceeding between the same parties, 38 F.Supp. 533, and that since the decision below the decree of the Delaware court was reversed by the Circuit Court of Appeals for the Third Circuit, in Triangle Conduit & Cable Co., Inc., v. National Electric Products Corp., 125 F.2d 1008, decided February 10, 1942,

It is further ordered that the dismissal of the appeal, as above directed, is without prejudice to the entertaining of renewed motions for a stay of proceedings based upon changes of the law in respect to the Delaware litigation.