sent done in

273245 731, 711-£4.

243, Jup.240

CARNEGIE STEEL CO. v. COLORADO FUEL & IRON CO.*

(Circuit Court of Appeals, Eighth Circuit.

July 16, 1926.)

No. 7231.

1. Courts 350, 352,

Equity rules 56 and 57, enacted in pursuance of Rev. St. § 917 (Comp. St. § 1543), held applicable to cases pending at time rules became effective.

2. Courts 350, 352.

Stipulation that trial and further taking. of testimony be continued, to be taken up at counsel's convenience, held insufficient under equity rule 57 to warrant continuance beyond

term, unless all costs theretofore incurred were paid.

3. Courts 350, 352.

Parties to action, commenced before enactment of equity rules 56 and 57, who did not proceed under such rules, and never sought to have cause placed on calendar thereunder, held not entitled to claim that under such rules case should have been placed on the calendar and disposed of under rule 57, instead of being dismissed for failure to prosecute.

4. Dismissal and nonsuit ~60(2).

Trial court held not to have abused its discretion in ordering dismissal for failure to prosecute action commenced in 1906 and practically abandoned since 1916.

Appeal from the District Court of the United States for the District of Colorado; J. Foster Symes, Judge.

Action by the Carnegie Steel Company against the Colorado Fuel & Iron Company. From an order dismissing the bill of complaint for failure to prosecute, plaintiff appeals. Affirmed.

See, also, 165 F. 195, 91 C. C. A. 229. George W. Morgan, of St. Paul, Minn., and Henry M. Huxley, of Chicago, Ill. (Gustave C. Bartels, of Denver, Colo., and D. Anthony Usina, of New York City, on the brief), for appellant.

*Certiorari denied 47 S. Ct., 71 L. Ed. 14 F. (2d)-1

--

Fred Farrar, of Denver, Colo. (Wendell Stephens, of Denver, Colo., on the brief), for appellee.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and CANT, District Judge.

KENYON, Circuit Judge. This is an appeal from an order of the United States District Court of Colorado, entered on July 14, 1925, dismissing appellant's bill of complaint. The dismissal was in pursuance of a general order of said court entered January 19, 1925, to the effect that all causes at law and suits in equity, in which no order of prog

ress had been made and entered of record within one year last past, should be dismissed for failure to prosecute, unless upon cause shown in writing to the contrary before the first day of the April term, 1925, the court should otherwise order. The action dismissed was one brought by appellant in the United States Circuit Court for the District of Colorado at Pueblo March 12, 1906, seeking relief both by injunction and damages for the alleged infringement by appellee of a certain patented process for the manufacture of steel from molten pig iron. A rather detailed statement of the facts is necessary for a clear understanding of this case. A demurrer was filed to the original complaint, and complainant (appellant here) sought to amend its bill. This was denied. The case was appealed to this court and was reversed and remanded. The issues were then settled. August 24, 1909, an order was made pursuant to stipulation fixing the time within which testimony should be taken by the parties. The stipulation provided that complainant might take orally on the 16th day of August, 1909, such of its testimony in chief and in support of its bill as it might desire, and should include its oral testimony at one session, that the defendant should have