Opinion
No. 8626.
April 11, 1941.
Appeal from the District Court of the United States for the Eastern District of Tennessee; Leslie R. Darr, Judge.
Action by T.J. Williams against Allan V. Hodge for copyright infringement. From final order dismissing, with prejudice, the complaint, and awarding the sum of $150 as fees for defendant's attorneys, the plaintiff appeals.
Order reversed and set aside, and cause remanded for further proceedings in accordance with opinion.
R. Carmack Waterhouse, of Chattanooga, Tenn., for appellant.
Shepherd, Carden, Curry Levine, of Chattanooga, Tenn., for appellee.
Before SIMONS, ALLEN, and MARTIN, Circuit Judges.
On the hearing of this appeal by plaintiff from a final order of the District Court dismissing, with prejudice, his complaint of infringement of copyright because of his failure to post a cost bond in the amount of $500, as required by previous court order entered on motion of the defendant, on December 20, 1939, the appellee, though duly notified, failed to appear either in person or by attorney and filed no brief.
It appears from the record and from the oral argument and brief of appellant that, upon filing suit on June 5, 1939, appellant, a resident of Tennessee, complied with local Rule No. 61 of the United States District Court for the Eastern District of Tennessee by posting a $25 cash bond; that neither the marshal nor the clerk applied to the court for further cost deposits; and that 17 U.S.C.A. § 40 does not support the action of the District Court, nor is the final order of the court supported by any Rule of Civil Procedure for the United States District Courts.
Accordingly, it is ordered and adjudged that the erroneous final order of the District Court entered on January 10, 1940, dismissing this cause with prejudice and awarding defendant's attorneys the sum of $150 as attorneys' fees be reversed and set aside, and that this cause be reinstated in good standing on the docket of the District Court.
The costs of this appeal are taxed against appellee; and the cause is remanded for further proceedings in conformity with this order.