Atlas Scraper and Engineering Co., a Corporation v. Harry A. Pursche, an Individual

This is the second appeal in these cases. Of course some considerable knowledge of the background and earlier disposition of the litigation is essential to an intelligent understanding of the present appeal. But rather than burden this .opinion with a detailed statement, we refer the reader to the prior opinion [ 300 F.2d 467 (9th Cir. 1961), cert. denied 371 U.S. 911 , 83 S.Ct. 251 , 9 L.Ed.2d 170 ], which sets out in sufficient detail all such information.

Atlas will not be permitted to question the trial court’s determination that it was guilty of unfair competition. That issue was one finally settled on the former appeal. Pertinent is the frequently quoted statement in Himley v. Rose, 5 Cranch 313 , 9 U.S. 313 , 3 L.Ed. 111 (1809): “Nothing is before this court but what is subsequent to the mandate.”

And we find no merit in Atlas’ contention that the trial court, in awarding Pursche damages for and an injunc tion against such competition went beyond the mandate.

True, this court did not give express approval to the provisions in the judgment for such affirmative relief; but neither did it expressly disapprove them. The opinion, however, does contain an extensive discussion…