RUSSELL BOX CO.

v.

GRANT PAPER BOX CO.

The order appealed from might be considered a final one if it had granted the motion to abate, for then the litigation would have been finally determined. In that event the order would be comparable to an order granting a motion for a directed verdict, or an order dismissing a complaint, and no doubt it would be appeal-able. But the order from which this appeal is taken denied the motion, and hence it is a purely interlocutory one incidental to the accounting, there being no issue presented as to the merits, and we do not believe that the statute goes so far as to make such an order -appealable, for if it does, then under its terms all interlocutory orders entered on motions filed in the course of accounting proceedings the disposition of which might conceivably terminate the litigation are appealable, and this would violate the long established policy against piecemeal appeals. To be sure the statute under consideration impinges to some extent upon the above policy against piecemeal appeals. It permits appeals -from interlocutory orders going to the merits in order to save the parties the expense and delay, often substantial, of accounting proceedings which would go for naught if recovery should ultimately be denied by reversal on appeal of a decree on the -merits. McCullough v. Kam-merer Corp., supra, 331 U.S. at page 98, 67 S.Ct. 1165, 91 L.Ed.

1365. But its policy is ■served when appeals from orders with respect to matters going to the merits of a patent owner’s cause of action for patent infringement are permitted, and the policy against piecemeal appeals is rendered a grave disservice if it is extended so far as to permit separate appeals from interlocutory orders entered in the course of accounting proceedings, for then the only limit to the number of appeals in litigation of this sort would be the ingenuity of counsel for the defendant.1

In short, we think the statute impinges upon the policy against piecemeal appeals far enough to make interlocutory judgments, or orders, on the merits of civil actions for patent infringement appealable in advance of any determination of the extent of the remedy in money to which the plaintiff is entitled. But we do not think it goes, or was intended to go, further than this and, at the cost of permitting piecemeal appeals, allow the taking of appeals from purely interlocutory orders entered on motions filed in the course of accounting proceedings not relating to the merits of the plaintiff’s cause of action but going only to the pursuit of the monetary remedy afforded, and this even though an appeal from such an interlocutory order might result in a holding rendering the whole accounting proceeding wasted effort and expense. After all, wasted effort and expense in some instances is only the normal consequence of the policy against piecemeal appeals which has for its justification the fact that it speeds litigation to a final determination. It is the price exacted for expedition. We do not feel that this consideration of economy, counterbalanced by the consideration of expedition, is enough without stronger statutory language to warrant a construction of § 1292(4) giving us jurisdiction in the premises.

We think, therefore, that our jurisdiction over this appeal cannot 'be rested upon either subparagraph (1) or (4) of § 1292, supra, and this renders it unnecessary for us to consider the application, if any, of § 2105 of Title 28, United States 'Code Annotated, which provides: “There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction.”

Appeal dismissed.

MAGRUDER, Chief Judge.

It seemed to me.at first that the order appealed from, though undoubtedly interlocutory, was nevertheless the general type of interlocutory order or judgment made appealable by subparagraph (4) of 28 U.S. C.A. § 1292; and that on principle McCullough v. Kammerer Corp., 1947, 331 U.S. 96, 67 S.Ct. 1165, 91 L.Ed. 1365, was controlling. I thought the common ground between that case and this was that the motion which was made in the district court, and which was denied, would if granted have finally terminated the case in the district court, thereby obviating the necessity of a long-drawn-out, expensive accounting proceeding—which, I suppose, was the purpose of § 1292(4) in allowing a “piecemeal” appeal in such cases.

But the flaw in the foregoing reasoning is that, if the district judge had granted or should have granted the motion of Russell Box Company that the action against it be abated, it would not necessarily follow that the accounting proceedings in the district court would be terminated. It is stated in the memorandum of the district judge that the stockholders of Russell Box Company had “voted to cease business and liquidate, and distribute its assets to stockholders, who assumed all debts and liabilities of the corporation.” If that is. so, then I suppose that though the action might be abated as against Russell Box Company, its stockholders might by supplemental bill' be brought in as parties-defendant and that the accounting would thereafter proceed on that basis. See Philadelphia Rubber Works Co. v.

U. S. Rubber Reclaiming Works, 2 Cir., 1921, 277 F. 171, certiorari denied, 1922, 257 U.S. 660, 42 S.Ct. 187, 66 L.Ed.

422. In that view, and bearing in mind the purpose of § 1292(4), it would seem that the order now appealed from is not of the sort made appealable under that subsection. Maybe that is not so, but I am not sure enough about it to dissent from the conclusion of the court that the present appeal should be dismissed.

If the order were otherwise appealable, I don’t believe that 28 U.S.C.A. § 2105 would be applicable. This provision has in substance been on the books since the original Judiciary Act of 1789. 1 Stat. 84. See McHie v. McHie, 7 Cir., 1935, 78 F. 2d 351. I would say that the .present motion to •abate, so called, went to the jurisdiction of the district court to render judgment •against the allegedly nonexistent corporation, and therefore that under the very terms of § 2105 the appellate court would not be disabled from reversing for error in the ruling, if error there was. See Defense Supplies Corp. v. Lawrence Warehouse Co., 1949, 336 U.S. 631, 69 S.Ct. 762. Cf. Bowles v. Wilke, 7 Cir., 1949, 175 F. 2d 35, certiorari denied 1949, 338 U.S. 861, 70 S.Ct. 104.

One who is metaphysically inclined might be disposed to question the standing of Russell Box Company as appellant to argue in this court its own nonexistence as a legal entity.

. Indeed in this very litigation another appeal by the defendant is now pending in which review is sought of an order denying a motion to dismiss for failure at the inception of the litigation to join the pat-entee, Dreymann, as a party plaintiff.