Opinion
No. 8992.
July 28, 1939.
Proceeding between M.B. Rasmusson, etc., and another, and the National Popsicle Corporation and another, wherein an appeal was taken by M.B. Rasmusson, etc., and another.
Order in accordance with opinion.
Daniel G. Albert, of Brooklyn, N.Y., and William S. Graham and William H. Mackay, both of San Francisco, Cal., for appellees-petitioners.
W. Glenn Harmon, of San Francisco, Cal., for appellant-respondent.
Order Allowing Continuance of Hearing of Appeal Under Rule 4, par. 5, of the Rules of the Court Upon Condition of Waiver of Claim of Certain Interest, and of Period of Accounting for Infringement, and of Vacation and Exoneration of Supersedeas.
It appearing from the affidavit of William S. Graham, attorney for appellees, that due to illness of counsel the hearing of the appeal herein should be continued from August 16, 1939, the date now fixed for such hearing, to be reset for hearing at a date subsequent to October 1, 1939; and
It further appearing that the effect of appellees' delay in the administration of justice, though due to such misfortune to appellees, should not be transferred to appellants; and
It further appearing that as a condition for procuring said continuance the court should require and the appellees have stipulated for a waiver of claims of certain interest and for the accounting for certain damages and for the vacation and exoneration of appellants' supersedeas bond, as hereafter ordered,
Now, therefore, it is ordered that the hearing on appeal in the above entitled cause now set for August 16, 1939, may be continued, to be reset by the court at a date beyond October 1, 1939.
It is further ordered that the Order heretofore made and entered in this Court on or about the 12th day of December, 1938, granting the appellants a writ of supersedeas and permitting appellants to file supersedeas bond as a stay of the injunction and judgment of the district court, shall be, and hereby is vacated insofar as it requires appellants to file and maintain a supersedeas bond of Twenty Five Hundred Dollars ($2500), and said bond is hereby exonerated and may be withdrawn by appellant without in any way affecting or vacating the aforesaid Order, or any Order of the district court, insofar as such Order or Orders stay the injunction or proceedings or supersede the judgment in this case; and
It is further ordered that in the event damages be recovered herein and interest be allowable as a part thereof, there shall be deducted from the period for which interest may be computed the time elapsing between August 16, 1939, and the date set for the hearing of this appeal and the date on which the appeal is heard; and
It is further ordered that in any accounting for damages no damages shall be awarded for any matter occurring during the period of such continuance.
WILLIAM DENMAN, CLIFTON MATHEWS, WILLIAM HEALY, United States Circuit Judges.