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ERROR

AND
CBEE FOR PLAINTIFF CANNOT BE GRANTED

AND

ERROR

5. APPEAL AND

m1092-SUPREME , Fed. 912. An appeal was taken to the Circuit COURT WILL NOT DISTURB ACTION ON PRE- Court of Appeals, Sixth Circuit. The same LIMINARY INJUNCTION, EXCEPT FOR STRONG corporation instituted the present suit in the REASONS.

United States District Court, Southern DisExcept for strong reasons, the Supreme trict of New York (December 9, 1916) seeking Court will not interfere with the action of the like relief against John Wanamaker, a cusCircuit Court of Appeals on appeal from an order granting a preliminary injunction.

tomer of Wagner.

The trial court granted a preliminary in6. APPEAL AND ERBOR w1108—REVERSAL OF junction, asked upon the bill, supporting afDECREE RELIED ON BY LOWER COURT PROP

fidavits and exhibits—January 12, 1917, It ERLY NOTICED ON APPEAL.

Where a preliminary injunction in a suit expressed general agreement with the conclufor infringement of a patent and copyrights and sions announced in the Ohio cause and said: unfair competition was evidently granted in re “It seems quite apparent that the patent is liance on a decree rendered in another suit infringed and that diagrams and directions as brought by plaintiff against the party whose to construction have been borrowed by defendant goods defendant was handling, the Circuit Court from complainant's copyrighted catalogues, and of Appeals properly took notice of the subse- that the system of construction adopted by the quent reversal of such decree.

defendant is a direct imitation of complain7. APPEAL ERROR 891-FINAL DE.

ant's system."

An appeal followed, pending which the CirON APPEAL FROM ORDER GRANTING INJUNC- cuit Court of Appeals, Sixth Circuit (NoTION, ON EX PARTE AFFIDAVITS.

vember, 1917), reversed the Ohio District While, on an appeal from an order granting Court's decree so far as it sustained the pata preliminary injunction, in a suit for infringement of a patent and copyrights and for unfair ent, approved it otherwise, and remanded competition, the cause might be dismissed, if it the cause for further proceedings. Wagner v. clearly appeared that no ground existed for Meccano, 246 Fed. 603, 158 C. C. A. 573. equitable relief, the court could not render a January 25, 1918, after argument, but befinal decree for complainant on ex parte affi- fore determination of appeal from the predavits and decrees of other courts in a suit by liminary order, petitioner moved for final the same plaintiff against the party whose goods decision on the merits, claiming that the defendant was charged with selling.

decree of the Circuit Court of Appeals, Sixth 8. APPEAL

ww863—SUPREME Circuit, “is final and conclusive as to the case COURT CANNOT DETERMINE MERITS ON BE- at bar, under principles enunciated by the VIEW OF PRELIMINARY INJUNCTION.

Supreme Court." Being opposed, the motion On review of a judgment reversing an order was denied—March 24, 1918. The court said granting a preliminary injunction, the only

of it: matter for review is the action of the courts below respecting such injunction, and the Supreme “This was a motion for a decision on the Court cannot go further and decide the issues merits of this cause' by this court under the folinvolved on their merits.

lowing circumstances: A suit was brought in

the District Court for the Southern District of On Writ of Certiorari to the United States New York for an injunction for infringement of Circuit Court of Appeals for the Second a copyright, and of a patent, and for unfair Circuit.

competition in the manufacture of a mechanical Suit by Meccano, Limited, against John toy in absolute imitation of the plaintiff's. The Wanamaker, New York. An order granting plaintiff applied for and got *an injunction pena preliminary injunction (241 Fed. 133) was dente lite [241 Fed. 133), from which the defendreversed by the Circuit Court of Appeals ant appealed. That appeal is still pending (250 Fed. 450, 162 C. C. A. 520), and plaintiff undetermined in this court. Meanwhile the brings certiorari. Affirmed and remanded. plaintiff had in the District Court required the

defendant to answer certain interrogatories, by *Messrs. Reeve Lewis and W. B. Kerkham, which it appeared that the defendant procured both of Washington, D. C., for petitioner.

from one Wagner the toys which it sold in alMr. H. A. Toulmin, of Dayton, Ohio, for the patent, and also the 'manuals' which went

leged unfair competition and in violation of respondent.

with the toys and explained their uses, which

are alleged to infringe the copyright. The inMr. Justice McREYNOLDS delivered the terrogatories further showed that Wagner had opinion of the Court.

agreed to hold the defendant harmless for any Proceeding against Wagner and others in sales of the toys and manuals, and that in purthe United States District Court, Southern suance of that undertaking he had taken a District of Ohio, Meccano, Limited, obtained share in the defense of this suit. While it did a decree (July 8, 1916) affirming the validity, not appear exactly what that share was, it may and restraining infringement, of its patent be assumed, for the purpose of the motion only, for mechanical toys, also restraining unfair the case, and that the defendant remains only

that Wagner has assumed the chief conduct of competition in making and selling such toys formally represented. and the further infringement of its copyright “The plaintiff sued Wagner in Ohio upon the

three same causes of equity and obtained a de upon trade catalogue and illus*trated manual

cree upon all. Later an appeal was taken to the relating thereto. Meccano v. Wagner, 234 | Circuit Court of Appeals for the Sixth Cir.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and ladexes

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+137

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+140

(40 Sup. Ct.) cuit, and the decree was affirmed except as to 1 708, 44 L. Ed. 856; Harriman v. Northern the patent, which was declared invalid, and Securities Co., supra; United States Fideliwhich the plaintiff has now withdrawn from ty & Guaranty Co. v. Bray, 225 U. S. 205, this suit. No final decree has been entered, and 214, 32 Sup. Ct. 620, 56 L. Ed. 1055; Denver the Ohio cause now stands for an accounting in the District Court. This motion is upon the v. New York Trust Co., supra. This power is record in the Ohio suit, which is made a part not limited to mere consideration of, and acof the moving papers, and it presupposes that tion upon, the order appealed from; but, if this court may pass a final decree for the plain- insuperable objection to maintaining the bill tiff upon the appeal from the injunction pen- clearly appears, it may be dismissed and the dente lite, upon the assumption that that record litigation terminated. is a complete estoppel against the defendant here and leaves open no issues for determination whether a preliminary injunction shall be

[3-5] The correct general doctrine is that between the parties."

"We pass the question of practice whether awarded rests in sound discretion of the this court, under the doctrine of Mast, Foos & trial court. Upon appeal, an order granting Co. v. Stover Mfg. Co., 177 U. S. 488, 20 Sup. or denying such an injunction will not be disCt. 708, 44 L. Ed. 856, may enter a decree for turbed, unless contrary to some rule of equi

ty, or the result of improvident exercise of the plaintiff upon such *an appeal as that now judicial discretion. Rahley v. Columbia pending. Mast, Foos & Co. v. Stover Mfg: Co., Phonograph Co., 122 Fed. 623, 58 C. C. A. supra, was a case where the bill was dismissed, and no case has so far held that the plaintiff 639; Texas Traction Co. v. Barron G. Collier, could obtain an affirmative decree. As we think Inc., 195 Fed. 65, 66, 115 C. C. A, 82; Souththe motion must be denied upon the merits, we ern Express Co. v. Long et al., 202 Fed. 462; leave open the question whether the plaintiff 120 C. C. A. 568; City of Amarillo et al. v. may in any event so terminate the litigation. Southwestern Telegraph & Telephone Co., 253

* It is apparent that some of the issues Fed. 638, 165 C. C. A. 264. The informed are different from those litigated in Ohio; they judgment of the Circuit Court of Appeals exinvolve, not only the defendant's rights to sell ercised upon a view of all relevant circumWagner's toys and manuals, but any others which it may procure elsewhere. * At

stances is entitled to great weight. And, exbest the rule in Mast, Foos & Co. v. Stover Mfg. cept for strong reasons, this court will not Co., supra, is limited to those cases in which interfere with its action. No such reasons the court can see that the whole issues can be are presented by the present record. disposed of at once without injustice to the [6] Pending the New York appeal the situparties. Whatever may be the result here, itation underwent a radical change—the Ciris apparent that the case involves more than can cuit Court of Appeals, Sixth Circuit, reversed be so decided.” 250 Fed. 250, 162 C. C. A. 386. the decree upholding petitioner's patent.

April 15, 1918, the court below reversed the Evidently the trial court had granted the prechallenged preliminary order. After stating liminary injunction in entire reliance upon that the trial court very naturally followed that decree, and after its reversal the court the Ohio District Court, it referred to the below properly took notice of and considered partial reversal of the decree there announc- the changed circumstances. Gulf, Colorado & ed and expressed entire agreement with the Santa Fé Ry. v. Dennis, 224 U. S. 503, 505, Circuit Court of Appeals, Sixth Circuit, in 506, 32 Sup. Ct. 542, 56 L. Ed. 860. holding the patent invalid. And, having con- [7] Petitioner maintains that its motion sidered the evidence relating to copyright and for final decree upon the merits should have unfair competition, it found no adequate been sustained. But the appeal was from an ground for an injunction. 250 Fed. 450, 162 interlocutory order and the court could only C. C. A. 386. The cause comes here by cer- exercise powers given by statute. On such tiorari. See Ex parte Wagner, 249 U. S. 465, an appeal a cause may be dismissed if it 39 Sup. Ct. 317, 63 L. Ed. 709.

[1, 2] Decrees by Circuit Courts of Appeals clearly appears that *no ground exists for are declared final by section 128, Judicial equitable relief; but finally to decide a deCode (Comp. St. § 1120), in cases like the fendant's rights upon the mere statement of present one. We therefore had authority to his adversary, although apparently supported bring this cause up by certiorari and may by ex parte affidavits and decrees of other treat it as if here on appeal. Section 240, courts, is not within the purview of the act. Judicial Code (Comp. St. 1217) Harriman v.

He is entitled to a day in court with opporNorthern Securities Co., 197 U. S. 244, 287, tunity to set up and establish his defenses. 25 Sup. Ct. 493, 49 L. Ed. 739; Denver v. The motion for final judgment was properly New York Trust Co., 229 U. S. 123, 136, 33 overruled. Eagle Glass & Manufacturing Co. Sup. Ct. 657, 57 L. Ed. 1101. The power of v. Rowe et al., 245 U. S. 275, 281, 38 Sup. Ct. Circuit Courts of Appeals to review prelimi-80, 62 L. Ed. 286. nary orders granting injunctions arises from

Petitioner's motion to enter a disclaimer section 129, Judicial Code, which has been must be denied. often considered. Smith v. Vulcan Iron

[8] If the two Circuit Courts of Appeals Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. have expressed conflicting views, we cannot

now declare which is right or undertake finalEd. 810; *Mast, Food & Co. v. Stover Manu- ly to decide the several issues involved upon facturing Co., 177 U. S. 485, 494, 20 Sup. Ct. their merits. The matter for review here is

+142

40 SUP.CT.-30

*141

REVIEWABLE

BY

the action of the courts below upon the pre- , Court and granting a new trial, is not a "final liminary order for injunction and we may go judgment" if it is advisable to review such no further. Leeds & Catlin Co. y. Victor judgment without further protracting the litigaTalking Machine Co., 213 U. S. 301, 311, 29 tion it is reviewable by certiorari under Judicial Sup. Ct. 495, 53 L. ED. 805; Lutcher & Moore Code, $ 262 (Comp. St. $ 1239), authorizing the Lumber Co. v. Knight, 217 U. S. 257, 267, 30 Supreme Court to issue all writs necessary for

the exercise of its jurisdiction. Sup. Ct. 505, 54 L Ed. 757. The judgment of the Circuit Court of Ap

5. COMMERCE w95_REPARATION ORDER NOT

REJECTED WHEN EVIDENCE BEFORE THE peals is affirmed. The cause will be remand

COMMISSION IS NOT PRODUCED BEFORE THE ed to the District Court for further proceed- COURT. ings in conformity with this opinion.

In an action to recover the amount awarded by a reparation order of the Interstate Com

merce Commission, the order cannot be rejected (253 U. S. 117)

as unsupported by evidence, when material docuSPILLER v. ATCHISON, T. & S. F. RY. CO. mentary evidence before the commission has not SAME v. CHICAGO & E. I. R. CO.

been introduced before the court because of its

bulk. SAME v. CHICAGO & A. R. CO.

6. COMMERCE 95-FINDINGS OF COMMISSION SAME v. MISSOURI PAC. RY, CO.

NOT INADMISSIBLE BECAUSE OF ERRORS OF SAME v. ST. LOUIS, I. M. & S. RY. CO.

PROCEDURE OR IN CONCLUSION.

Under Interstate Commerce Act Feb. 8, SAME v. ST. LOUIS & S. F. R. CO.

1887, $ 13, as amended by Act June 18, 1910, SAME v. CHICAGO, R. I. & P. RY. CO. $ 11 (Comp. St. $ 8581), requiring the Inter

state Commerce Commission to investigate SAME v. ILLINOIS CENT. R. CO.

claims for reparation in such manner and by SAME v. MISSOURI, K. & T. RY. CO. such means as it shall deem proper, section 16, as (Argued Jan. 15, 1920. Decided May 17, 1920.) amended by Act June 18, 1910, § 13 (Comp. St. S

8584), making its findings and order prima facie Nos. 137-145.

evidence, and section 17, as amended by Act 1. COURTS 382(1)-JUDGMENT OF CIRCUIT March 2, 1889, $ 6 (Comp. St. § 8586), authoriz

COURT OF APPEALS IN ACTION ON REPARA- | ing it to conduct its proceedings in such manner TION ORDER

SUPREME as will best conduce to the proper dispatch of COURT; "FINAL JUDGMENT.”

business and to the ends of justice, where the A judgment of the Circuit Court of Appeals essential facts found are based on substantial in an action to recover amounts awarded by a

evidence, and there has been no denial of the reparation order of the Interstate Commerce right to a fair hearing, its findings and order Commission is not made final by Judicial Code, may not be rejected as evidence because improp$ 128, as amended by Act Jan. 28, 1915, er evidence was admitted, or the best possible § 2 (Comp. St. $ 1120), and is there available evidence was not produced or a differfore reviewable by writ of error under section ent conclusion might have been reached. 241 (Comp. St. $ 1218), if it is final in the sense 7. COMMERCE Cw87–EVIDENCE HELD TO SUPof concluding the litigation and involves the ju

PORT FINDINGS OF COMMISSION IN REPARArisdictional amount.

TION PROCEEDING. [Ed. Note. For other definitions, see Words

In a proceeding before the Interstate Comand Phrases, First and Second Series, Final merce Commission for reparation in connection Decree or Judgment.)

with excessive freight charges on shipments of 2. COURTS 382(1)-JUDGMENT OF CIRCUIT cattle, where the claims were based in most

COURT OF APPEALS GRANTING NEW TRIAL cases upon data furnished by commission houses NOT REVIEWABLE BY WRIT OF ERROR.

to which the cattle were consigned, evidence A judgment of the Circuit Court of Ap- that few of shippers kept books, and that they peals, reversing a judgment of the District Court relied upon commission companies to do this, and granting a new trial, is not revicwable on

and that the companies made a practice of parwrit of error, as it calls for further proceedings ing the freight, selling the cattle, and remitting in the trial court, and a writ of error will lie the proceeds after deducting the freight in conto review final judgments only.

nection with the verification of the claims by

the carriers, held to sustain findings that the 3. Courts On383(1)—JUDGMENT OF CIRCUIT shippers whose names were mentioned in the

COURT OF APPEALS INVOLVING LESS THAN claims sustained damages to the extent of the $1,000 REVIEWABLE BY CERTIORARI; “FINAL excessive charges as determined by the commisJUDGMENT."

sion. A judgment of a Circuit Court of Appeals 8. COMMERCE em 87—COMMISSION ENTITLED TO involving less than $1,000 is made "final" by the combined effect of Judicial Code, $$ 128,

TREAT CHECKING OF CLAIMS BY CARRIERS AS

EVIDENCE, AND NOT LIMITED BY QUALIFYING 241 (Comp. St. 88 1120, 1218), and is therefore

STATEMENTS. reviewable by certiorari under section 240 (Comp. St. 8 1217).

Where, in a proceeding before the Interstate

Commerce Commission for reparation, a summa4. COURTS 383(1)—JUDGMENT OF CIRCUIT ry of the claims showing the consignor, con

COURT OF APPEALS GRANTING A NEW TRIAL signee, etc., were submitted to the carriers for REVIEWABLE BY CERTIORARI; “FINAL JUDG- investigation, and the carriers, in addition to MENT.

check marks and other marks indicating that Though a judgment of a Circuit Court of the items were correct, inserted waybill refer. Appeals, reversing the judgment of the District lences, car numbers, etc., though they undertook

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.) to qualify the effect of the checking, the commis-, for the benefit of the owners, and a representasion was justified in according to the reports of tive of the association had possession of assignthe checking an evidential effect not limited by ments made to him, this constituted a reasonable the qualifying statements.

assurance of their genuineness, and formal proof 9. COMMERCE 88—COMMISSION'S REPARA

of the handwriting of the assignors by subscrib

ing witness or otherwise was not necessary. TION REPORT NOT NULLITY FOR FAILURE TO EXAMINE BOOKS ON WHICH CLAIMS WERE 14. COMMERCE em S7-ASSIGNEE ENTITLED TO BASED.

REPARATION AWARD AND RECOVERY THEREON, Where there was substantial evidence in a THOUGH NOT HOLDING BENEFICIAL TITLE. proceeding before the Interstate Commerce Com- Assignments absolute in form of claims for mission for reparation that the owners specified reparation on account of excessive freight chargin the claims had been subjected to the excessive es vested the legal title in the assignee, and charges found by the commission, its report entitled him to claim award of reparation and could not be treated as a nullity in an action recover it by action at law brought in his own to recover the amounts awarded because of the name for the benefit of the assignors, though the failure to appoint an examiner to investigate the purpose of the assignment was not such as tu books of commission merchants on which most

vest him with the beneficial or equitable title. of the claims were based, as was at first intended.

15. ASSIGNMENTS 26–CLAIM FOR REPARA

TION FOR OVERPAYMENT TO CARRIER IS AS10. COMMERCE 95—QUALIFICATIONS OF EX- SIGNABLE. PERT A QUESTION FOR COMMISSION, WHOSE

Though Interstate Commerce Act, $$ 8, 9 DECISION WILL NOT BE SET ASIDE WHEN NOT (Comp. St. $S 8572, 8573), section 13, as amendUNFOUNDED.

ed by Act June, 18, 1910, § 11 (Comp. St. $ Whether a witness before the Interstate 8581), and section 16, as amended by Act June Commerce Commission in a reparation proceed-29, 1906, 8 5 (Comp. St. 8 8584), relative to daming who had been connected with a cattle rais- ages for violations thereof and awards for reper's association for eight years had shown such aration, does not mention representatives or asspecial knowledge as to qualify him to testify as signs of the person aggrieved, a claim for reparaan expert as to the customary course of business tion is assignable, as the claim is for compensaof cattle shippers and commission merchants tion and not for a penalty, and assignable in was for the commission to determine, and its the absence of any expression of a legislative decision thereon, when not clearly shown to have intent to the contrary. been unfounded, will not be set aside by the courts.

16. COMMERCE O 85 - RULING OF COMMISSION

AS TO RECOGNIZING ASSIGNMENTS OF CLAIMS 11. COMMERCE 95 - CONSIDERATION OF

FOR REPARATION MAY BE DISREGARDED BY IT. EVIDENCE IN CONNECTION WITH

A ruling of the Interstate Commerce ComADMISSIBLE EVIDENCE NOT GROUND FOR REJECTING COMMISSION'S FINDINGS.

mission that in an award for reparation it Where hearsay evidence was introduced be would not recognize an assignment to a stranger

to the transportation records treated as an adfore the Interstate Commerce Commission in a reparation proceeding without objection, and ministrative regulation constituted no limitation was substantially corroborated by original evi- upon the jurisdiction of the commission, and dence clearly admissible against the parties to might be disregarded by it. be affected, the findings and order of the commission may not be rejected as unsupported by

In Error and on Writ of Certiorari to the evidence, because the hearsay evidence was con- United States Circuit Court of Appeals for sidered with the rest, especially as the order the Eighth Circuit. is only prima facie evidence.

Action by E. B. Spiller against the Atchi12. COMMERCE 95—DENIAL OF MOTION TO son, Topeka & Santa Fé Railway Company, FIND FOR DEFENDANTS PROPER WHERE PART the Chicago & Eastern Illinois Railroad ComCLAIM BEFORE COMMISSION

pany, the Chicago & Alton Railroad Company, PORTED BY EVIDENCE.

the Missouri Pacific Railway Company, the In an action to recover amounts awarded St. Louis, Iron Mountain & Southern Railplaintiff on assigned claims by a reparation order of the Interstate Commerce Commission, a

way Company, the St. Louis & San Francismotion for rulings that on all the evidence co Railroad Company, the Chicago, Rock plaintiff was not entitled to recover, and that Island & Pacific Railway Company, the Illithere was not sufficient evidence before the com- nois Central Railroad Company, and the Mismission to sustain its order, was properly over- souri, Kansas & Texas Railway Company. A ruled, where some of the claims were supported judgment for plaintiff was reversed by the by evidence, as the request for an adverse ruling should not have been directed to the award in Circuit Court of Appeals (246 Fed. 1, 158 C. toto.

C. A. 227), and rehearing was denied (249

Fed. 677, 161 C. C. A. 587), on separate writs 13. COMMERCE 87–FORMAL PROOF OF HAND- of error taken by each defendant, and plain

WRITING OF PERSONS ASSIGNING CLAIMS FOR tiff brings error and petitions for certiorari. REPARATION UNNECESSARY.

In a reparation proceeding before the In- Writs of error dismissed. Writs of certiorari terstate Commerce Commission prosecuted by allowed. Judgment of the Circuit Court of a cattle raisers' association, where it was shown Appeals reversed, and judgment of District that the association was prosecuting the claims Court affirmed.

HEARSAY

.

OF

WAS

SUP

Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

+119

error.

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*Messrs. Buckner F. Deatherage, of Kansas would be reviewable in this court by writ of

final in the sense of concluding the litigation, City, Mo., and S. H. Cowan, of Ft. Worth, error pursuant to section 241, Judicial Code Tex., for plaintiff in error.

Messrs. T. J. Norton and Gardiner La- (Comp. St. § 1218), in each case where the throp, both of Chicago, Ill., for defendants in costs. In the cases of the Chicago & Alton and

matter in controversy exceeds $1,000, besides

the Missouri Pacific Companies, the respec*Mr. Justice PITNEY delivered the opin- tive judgments with interest up to the issu. ion of the Court.

ance of the writs of error from this court Plaintiff in error commenced an action were materially less than $1,000; in each against defendants in error jointly in the of the other cases substantially in excess of District Court of the United States for the that amount; the aggregate of the judgments Western District of Missouri under section being more than $150,000. For want of a suf16 of the act to regulate commerce as amend- ficient amount in controversy the two smaller ed (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 384; judgments would not be reviewable here by Act June 29, 1906, c. 3591, § 5, 34 Stat. 584, writ of error even were they final in effect; 590; Act June 18, 1910, c. 309, § 13, 36 Stat. but all the writs of error must be dismissed 539, 554 (Comp. St. 8 8584]), to recover cer- because the judgments call for further pro tain amounts awarded to him against ceedings in the trial court; it being elementhem · respectively in a reparation order tary that this writ will lie to review final made by the Interstate Commerce Com- judgments only. McLish v. Roff, 141 U. S. mission January 12, 1914. His petition 661, 665, 12 Sup. Ct. 118, 35 L. Ed. 893; Luxcontained also a count setting up a con- ton v. North River Bridge Co., 147 U. S. 337, spiracy between defendants for the re- 341, 13 Sup. Ct. 356, 37 L. Ed. 194; Heike v. straint of interstate commerce, and claiming United States, 217 U. S. 423, 429, 30 Sup. Ct. treble damages under section 7 of the Sher- 539, 54 L. Ed. 821. man Anti-Trust Act of July 2, 1890 (chapter

[3, 4] However, upon consideration of the 647, 26 Stat. 209, 210 [Comp. St. $ $829]); but particular circumstances of the case, we have this was abandoned at the trial. Defendants concluded that a writ of certiorari ought to having filed separate answers, a jury was be allowed, without further protracting the waived by stipulation, and a test case tried litigation to the extent that would be necesbeiore the court-all defendants participat

sary in order to reach final judgments; the ing—with the result that a decision was ren- transcript of the record and proceedings redered in favor of plaintiff, pursuant to which turned in obedience to the writs of error to a combined judgment was entered, amount stand as the return to the writ of certiorari. ing in effect to as many judgments as there This writ is allowable by virtue of section were defendants, each for the amount of the commission's award against the particular de- 240, Judicial Code (derived from section 6 of

the Act of March 3, 1891, c. 517, 26 Stat. 826, fendant with interest and attorneys' fees. 828 [Comp. St. § 1217]), in the case of the two Defendants sued out separate writs of error smaller judgments, because the decision of from the Circuit Court of Appeals, where, by the Circuit Court of Appeals is made final by stipulation, the cases were heard together upon a single record. That court reversed the combined effect of sections 128 and 241; the judgments, ordered the cause remanded and in the case of the larger judgments it is to the District Court with directions to grant allowable under section 262 of the Code (seca new trial (Atchison, T. & Santa Fé R. Co. tion 716, Revised Stat. U. S. [Comp. St. & v. Spiller, 246 Fed. 1, 158 C. C. A. 227), and 1239]), in aid of the ultimate jurisdiction of refused an application for a rehearing (249 this court to review those cases by writs of Fed. 677, 161 C. C. A. 587). Writs of error were prayed for and allowed for the review. S. 47, 58, 12 Sup. Ct. 517, 36 L. Ed. 340; In re

Lau Ow Bew v. United States, 144 U. of the judgments of reversal in this court; Chetwood, Petnr., 165 U. S. 443, 462, 17 Sup. and afterwards but in due season a petition Ct. 385, 41 L. Ed. 782; Whitney v. Dick, 202 for the allowance of a writ of certiorari was filed, the consideration of which was post- U. S. 132, 135, 26 Sup. Ct. 584, 50 L. Ed. 963; poned to the hearing under the writs of McClellan v. Carland, 217 U. S. 268, 277, et

seq., 30 Sup. Ct. 501, 54 L. Ed. 762 ; United [1, 2] The jurisdiction of the District Court States v. Beatty, 232 U. S. 463, 467, 34

Sup. Ct. 392, 58 L. Ed. 686; Meeker v. having been in*voked not because of diversity Lehigh Valley R. R. Co., 234 U. S. 749, 34 of citizenship but because the suit was one Sup. Ct. 674, 15 L. Ed. 1576; Id., 236 U. S. 412, arising under laws of the United States other 417, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. than those particularly mentioned in section 1916B, 691. 128, Judicial Code, as amended (Act Jan. 28, Coming to the merits: The ground upon 1915, C. 22, § 2, 38 Stat. 803 (Comp. St. § 1120), which the Circuit Court of Appeals reversed it follows that the judgments were not made the judgments, and the ground principally "final" by the section referred to, and, if relied upon to sustain its decision was

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error.

error.

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