rule to be,--though he declined to apply it in that case, --that where the objection to the jurisdiction of the court over the person is made "concurrently with other defenses which invoke the judgment of the court on the merits, ** the objection will be held to have been wavied." And we have said as much in cases involving an action at law. Cf. Manning v. Furr, 62 App. D.C. 281, 66 F. (2d) 807. And in that view it is interesting to note that the Supreme Court cases cited by Judge Chesnut in support of the statement we have quoted were either decided prior to the adoption of Federal Equity Rule 29 or were law actions as to which that rule did not apply. In adhering to the rule in effect in this jurisdiction for more than twenty years, it may not be out of place to call attention to the new rules of civil procedure applicable alike to this Circuit and the other Federal Circuits. It is not unlikely that they will come into effect within a few months and if we should now abandon our former ruling and adopt the other view, we should be compelled after the effective date of the new rules to revert to Ryan v. McAdoo. For this reason, as well as because we think the rule which has been in force is a good one, we adhere to our former construction. We are, therefore, of opinion that the court below was in error in overruling the motion to dismiss the bill as to the defendant Herzog, and the cause is, therefore, remanded to the District Court with instructions to grant the motion. This dismissal will be without prejudice to the right of plaintiff to pursue, if it is available to him, the form of remedy which we approved in Morgenthau v. Fidelity & Deposit Company of Maryland, F. (2d), decided by us December 13, 1937. Reversed and Remanded. Johnson Metal Products Co. and Detroit Steel Products Co. v. Equity No. 1747 In a patent suit which was tried and in which the mandate or appeal was filed before September 16, 1938, the allowance of costs should be governed by the old Rules, which made such allowance discretionary, rather than by Rule 54 (d), in view of the fact that the court expresses doubt as to whether the latter rule makes the imposition of costs mandatory er discretionary. (See opinion in this case under Rule 86) An appeal from an order of the District Court finding appellant guilty of civil contempt, taken prier to September 16, 1938, in the manner provided for appeals from a criminal judgment, by giving notice of appeal, instead of in the manner provided for appeals from judgments in civil actions, by filing a petition and securing an allowance of the appeal, came on for hearing after the effective date of the Rules. Held the appeal should be dismissed. Dissenting opinion stated that since the cause came on for hearing after the effective date of the Rules, the provisions of Rule 73, permitting appeals in civil cases to be taken by merely filing notice of appeal, should be applied and that, therefore, the appeal should be decided on the merits. (See opinion in this case under Rule 86) |