Opinion
No. 13484.
November 5, 1958.
F. Norman Higgs, Bay City, Mich., (Laurence Laurence, Washington, D.C., on the brief), for appellants.
Theodore E. Simonton, Cazenovia, N.Y. (Arthur J. Kinnane, Bay City, Mich., on the brief), for appellee.
Before ALLEN, Chief Judge, SIMONS, Circuit Judge, and JONES, District Judge.
This appeal in essence appears to be based upon the refusal of the District Court to amend or to add to the mandate of this Court, 245 F.2d 722; 248 F.2d 483, and the decree entered by the District Judge thereon and in compliance therewith.
There appears from the record to have been considerable conflict between the parties following the hearing and decision of this Court in a prior appeal based upon rights and duties under an exclusive license contract. The question of the conflict revolved around the alleged conduct of the appellee in declining or refusing to take advantage of the favorable judgment of this Court. We cannot stop to review or recite the facts because we think it unnecessary in the view we take of the contest.
A District Court is not at liberty to amend, modify or add to the mandate in a decided case by the Court of Appeals. It is its duty to enter the decree in the District Court as the mandate of this Court directs.
If the appellant here felt itself aggrieved by the alleged vacillating conduct of the appellee the only procedure open to the appellant was to file a motion for reconsideration, or a motion for modification or amendment of the mandate, or for a re-reference to the District Judge to take testimony and report. All of the conflict thus could have been resolved in an orderly way and with greater dispatch and less expense than by the method chosen by the appellant. Since appellant did not choose to follow the proper procedure, we must affirm the action of the District Judge and remand the case for his further proceeding in accordance with this Court's mandate and his decree entered thereon and for such further relief as may to him seem proper.