
    NATIONAL ELECTRIC SIGNAL CO. v. CITY OF WACO, TEX.
    No. 8262.
    Circuit Court of Appeals, Fifth Circuit.
    March 21, 1938.
    For former opinion, see 90 F.2d 497.
    Jesse R. Stone and Lester B. Clark, both of Houston, Tex., for appellant.
    S. J. Brooks, of San Antonio, Tex., and Henry R. Ashton, of New York City, for respondent.
    Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
   • PER CURIAM.

This is a motion by appellee to recall the mandate heretofore issued and specifically pass upon the findings of facts and conclusions of law of the District Court, which held claims 5 and 6 of Garrett patent, No. 1,743,965, invalid.

The question presented for decision was whether, the patent had been infringed. The defense was on the grounds that the patent was invalid and the patented device was not in use by defendant. The District Court sustained both defenses. It was not necessary for this court to pass upon both defenses. We expressed doubt as to the validity of the patent but put that aside and affirmed the judgment on the second ground. 5 Cir., 90 F.2d 497.

The decision was entered on June 11, 1937. Rehearing was not applied for and the mandate was sent down in due course. The term ended October 2, 1937. The motion to recall the mandate was filed February 21, 1938. Conceding, without so deciding, that we would have the right to recall the mandate after the ending of the term, in the interest of justice, we see no occasion to do so in this case. The motion is denied.  