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by reason of a failure to annex thereto or return therewith an assignment of errors pursuant to the requirements of section 997 of the Revised Statutes. Nor does rule 8 require a copy of assignment of errors in the transcript when no such assignment was filed in the court below.
The fourth ground of dismissal is equally untenable. The record shows that a large number of the creditors of Joseph Dreyfus, of the city of New Orleans, sued him in the circuit court of the United States, and in those actions, or in one of them, a writ of attachment was issued and levied on the goods of Dreyfus by the marshal, who took possession of them. In this action Gumbel intervened by petition, as he was authorized to do by the laws of Louisiana, and by the decision of this court in Freeman v. Howe, 24 How., 450, alleging that a seizure under a writ of the state court in his favor had been made by the sheriff before the marshal's levy, and he claimed a priority of lien on those goods. The goods were sold under an order of the circuit court pendente lite and the proceeds distributed to other parties, and Gumbel's intervention dismissed on the ground that the sheriff had made no seizure prior to that of the marshal. The order dismissing Gumbel's intervention disposes of his rights, and is a final judgment as to that issue, as to which he has a right to a writ of error. The order distributing the proceeds of the sale is also final, as it disposes of the fund.
As regards the third ground for dismissal the case is not so clear. This court has undoubtedly, from the case of Darneale v. Stump, 8 Pet. 526, to that of The Protector, 11 Wall. 82, held that all the parties to the judgment must be named in the writ of error, and that the use of the name of one of the parties, with the addition of the words "and others," as "Joseph W. Clark and others," does not satisfy the requirement, but on the contrary shows that there were parties to the judgment or decree in the inferior court who are not named in the writ. It is upon this ground that the judgment in the case of Smith v. Clark, 12 How. 21, is distinctly placed by Chief Justice TANEY in the opinion. In the case of The Protector, 11 Wall. 82, the appeal was taken in the name of William A. Freeborn & Co., while the record showed that William A. Freeborn, James F. Freeborn, and Henry P. Gardner were the libelants. In this court counsel insisted that the objection was not fatal, and that the appeal might be amended, but the court held otherwise, and dismissed the appeal. In the present case the defendants are named in the writ in almost every instance by such designations as B. Dreyfus & Co., Corning & Co., John Osborn, Son & Co., and so on. We should have no hesitation now, under section 1005 of the Revision, which became a law by the act of June 1, 1872, after the case of The Protector was decided, to permit the plaintiff in error to amend if there was anything to amend by. But the transcript of the record before us shows that these parties came into the circuit court as defendants or intervenors, and prosecuted their rights throughout the whole proceedings by the designations applied to them in this writ of error, and by no other names whatever. No amendment of the writ to remove this difficulty can, therefore, be made from the record before us.
If the plaintiff in error has a just foundation for his assertion of error in the judgment against him, it would be a great and apparently irremediable injustice to dismiss his writ. The present case differs from that of The Protector, the latest on the subject, for, in that case, the record showed that William A. Freeborn, James F. Freeboru, and Henry P. Gardner were the libelants whose libel was dismissed, and no good reason is to be seen why they did not bring their appeal in those names instead of William A. Freeborn & Co. In the case of Smith v. Clark, the objection relied on in the opinion of the court, (12 How. 21,) is that this form of appeal showed to the court that there were other parties to the decree below not named, and therefore not brought before this court by the appeal. Neither of these cases cover the present. In this case the plaintiff in error gives his own full name, and he
is the only plaintiff. He describes in his writ of error all the parties opposed to him, by the names and designations which they gave themselves in their pleadings, motions, and proceedings in the court below, and by which they are mentioned in the judgment which distributes to them the money that he asserts should rightfully go to him. We are not advised, as in the Freeborn Case, by the record that the appellants had other names than Freeborn & Co., nor, as in the Darneale Case, that there were others who were attempted to be made parties by that word, with no other designation.
We think that, where the writ gives all the names of the parties as they are found in the record of the case in the circuit court, and where there is nothing to show that any other person was a party than such as are so named, this court is not at liberty to indulge the presumption that there were others who were parties, when such presumption is not founded on anything in the record and would lead to a manifest injustice.
The motion to dismiss is overruled, and the case is one to be heard on the merits, and not to be affirmed on motion. Both motions are, therefore, denied.
(113 U. S. 609)
CALIFORNIA ARTIFICIAL STONE PAVING Co. v. MOLITOR.1 (Two Cases.)
(March 2, 1885.)
PRACTICE-DIFFERENCE OF OPINION IN THE COURT BELOW.
The difference of opinion in the court below, which may be certified to the supreme court, is not a difference of opinion on the general case, but only a difference on a special point of law, which can be distinctly stated. Section 652, Rev. St.
Appeal from and in Error to the Circuit Court of the United States for the District of California.
M. A. Wheaton, for Paving Co. E. M. Marble, for Molitor.
*BRADLEY, J. A bill was filed by the appellant in this case against the appellee, complaining that the latter had infringed, and continued to infringe, certain letters patent granted to one John J. Schillinger, and which had been assigned for the state of California to the complainant. The patent was for an improvement in concrete pavement, and was originally issued July 19, 1870, and reissued May 2, 1871. The improvement, as described in the reissued patent, consisted in laying the pavement in detached blocks, separated from each other by strips of tar paper, or other suitable material, so as to prevent the blocks from adhering to each other. As stated in the specification, "the paper constitutes a tight water-proof joint, but it allows the several blocks to heave separately from the effects of frost, or to be raised or removed separately, whenever occasion may require, without injury to the adjacent blocks." Prior to this invention, it seems, from the statement of facts made by the court, that concrete pavements had been made in one continuous sheet, without being divided into blocks, whence it was liable to crack in irregular directions, and to break up in such a manner as to render it useless. The specification of the reissued patent contained the following clause: "In such cases, however, where cheapness is an object, the tar paper may be omitted, and the blocks formed without interposing anything between their joints as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficiently tight for many purposes, while the blocks are detached from each other, and can be taken up and relaid, each independent of the adjoining blocks;" but this clause had been disclaimed by filing a disclaimer in the patent-office. The patent had two claims, as follows: "(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described; (2) the arrangement of tar paper, or its
1S. C. 8 Fed. Rep. 821.
equivalent, between adjoining blocks of concrete, substantially as and for the purposes set forth."
The defendant answered the bill, denying the validity of the patent and denying infringement, and declaring that the concrete pavements made by him were made under and in accordance with certain letters patent granted to one J. B. Hurlburt, April 20, 1875, the process of which is described in the answer, as follows:
"The said Hurlburt invention is a novel method of forming blocks of artiicial stone or cement pavement, whereby they are prevented from becoming uneven by sinking below or rising above a common plane, and consists in beveling the edges of the blocks so that they will measure more across their under side in one direction and less across their upper side than across their under side in the other or opposite direction; and also consists in the novel construction of a forming frame, whereby the blocks are beveled as devised by using the different sides of the frame alternately; and also in the novel construction of a parting strip, whereby the colors are kept separate, showing a straight line between the blocks and while forming their edges in actual contact, the same strip being of great service to rest a straight edge upon while beveling the block in process of formation, and that by said invention the process of laying cement pavements saves from 10 to 15 per cent. in cost of labor over any other known process, entirely dispenses with tar paper or any equivalent, and all other expensive superfluities, and makes a close-beveled joint; it being impossible to raise, or attempt to raise, any separate piece of work without chiseling and digging and materially injuring adjacent work."
What the proof was as to the actual process employed by the defendant, whether it strictly accorded with Hurlburt's plan or not, does not distinctly appear. The appellee's counsel in his brief states that the respondent was originally adjudged to have infringed the rights secured by the patent, by reason of having pressed into the joints made by the cutting of the large sections into blocks with a trowel, a fine concrete which was held to be the equivalent of the tar paper, as it accomplished the objects claimed to be gained by the patented invention, viz., producing a suitable tight joint and yet al lowing the blocks to be raised separately without affecting the block adjacent thereto, and allowed the several blocks to heave separately from the effects of frost. But this fact is not shown by the record before us, and we are in the dark as to what particular form of pavement was adjudged by the court to have been an infringement of the patent sued on. We only know that, proofs having been taken and the cause heard, the circuit court, on September 10, 1881, decreed as follows:
"That the reissued letters patent No. 4,364, granted and issued on the second day of May, A. D. 1871, to John J. Schillinger, of New York, being the patent referred to in the bill of complaint herein, are good and valid in law. *** That the said defendant, Charles A. Molitor, has infringed said reissued letters patent, and upon the exclusive rights of the complainant under the same; that is to say, by making or selling one or more artificial concrete cement pavements within the state of California, and while the complainant was the owner of said reissued letters patent, as charged in said bill of complaint. * And that a perpetual injunction be issued in this suit against the said defendant, Charles A. Molitor, restraining him, his agents, clerks, servants, and all claiming or holding under or through him, from making, selling, or using, or in any manner disposing of, any artificial stoneblock pavements embracing the invention and improvements described in the said reissued letters patent, pursuant to the prayer of the said bill of complaint."
Had the defendant continued to make concrete pavements in the manner set up in his answer, or in the manner in which it was proved he did make
them, and which the court decided to be an infringement, there could £ave been no doubt that he would have violated the decree; but it would seem that he varied his mode of making the pavement by ceasing to make it in separate and detached blocks, and only making a mark or indentation on the surface while in a plastic state with a trowel or marker extending to a depth of from one-eighth of an inch to an inch, and thus giving the pavement the appearance of being made in detached blocks, and, in fact, answering all the purposes of detached blocks, the crease on the surface being sufficient to produce the results obtained by Schillinger's process.
In October, 1883, more than two years after the decree was entered, the complainant obtained a rule on the defendant to show cause why he should not be punished for a contempt of court in disobeying the decree; the alleged contempt consisting of the construction by the defendant of concrete pavements in the manner last mentioned, to-wit, at Redwood City, in San Mateo county. Of course, the question was at once raised whether the process now used by the defendant was an infringement of the patent. The judges being opposed in opinion, a decree was made in conformity with that of the circuit judge, declaring that the pavements thus constructed by the defendant did not infringe the patent; that there was no violation of the injunction; and that the order to show cause be discharged. A certificate was thereupon made, showing the points on which the judges disagreed, and the cause has been brought here both by appeal and by writ of error, brought in both ways, as counsel state, because of the uncertainty as to which was the right method.
For the purpose of showing how the points of disagreement arose, and of furnishing materials for deciding them, the certificate exhibits the record and facts upon which (it is stated) the matter was heard below, consisting of— (1) The bill, answer, replication, decree, and injunction, and the order to show cause why the defendant should not be punished for contempt. (2) A statement of facts deduced by the court below from the evidence in the case, and the report of a master. This statement embraces a copy of the reissued patent of Schillinger, with the drawings annexed thereto, and a statement deduced from the testimony, describing, among other things, the manner in which the defendant, after the entry of the decree, constructed a certain pavement in Redwood City, to-wit, substantially as before mentioned. The statement closes with the following declaration, to-wit: "While the blocks laid in strict accordance with the specifications in the Schillinger patent can be more readily taken up, still the cutting and marking, or the mere marking of the surface with the marker alone, as described, affords, to a very large extent, the advantages mentioned obtained by the use of the Schillinger patent; the additional cutting with the trowel, during the process of formation, to a greater or less extent, increasing those advantages. The Exhibit C, offered as follows, is a photograph of the sidewalk as laid by defendant Molitor, claimed to be an infringement of the patent in question." The photograph exhibit is annexed to the statement.
The certificate then concludes as follows: "At the hearing of said order to show cause, at the present term of the court, upon said record, and upon the facts hereinbefore stated, there occurred as questions arising thereon--(1) Whether the laying of said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface by cutting across the surface of the larger blocks with a trowel, and afterwards running the marker along the line of the cutting with the trowel, in all respects as herein before stated, constitutes an infringement of the patent to Schillinger set out in this certificate? (2) Whether the laying of the said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface, by cutting across the surface of the larger blocks by running the marker, without any other cutting with a trowel or other instrument than the marker described, across
the blocks, on a line previously marked, as a guide, in all respects in the manner as herein before stated, thereby controlling the line of cracking, and obtaining in a greater or less degree the advantages pertaining and belonging to the pavements laid in all respects in accordance with the specifications of said Schillinger patent, constitutes an infringement of said patent? (3) Whether the defendant Molitor, by constructing the said pavement in all respects in the manner herein before stated, is guilty of violating the injunc tion granted and made perpetual by the decree in this case? Upon which said several questions and upon each of them the opinions of the judges were opposed.
These are the questions which we are now called upon to answer. We are met, however, at the outset, by a preliminary question, to-wit, whether the points thus presented by the certificate of the judges below come within the meaning of the statute which authorizes this court to decide questions of law on which the judges of the circuit court are opposed in opinion. It is not a difference of opinion on the general case which may be thus certified. Such a difference would properly result in a decree for the defendant, or party holding the negative, subject to an appeal to this court in the ordinary course. It is only a difference on a special point of law which can be distinctly stated, that may be certified to this court under the statute. Section 652 of the Revised Statutes declares that when a judgment or decree is entered in a civil suit, in a circuit court held by two judges, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall be stated and certified, etc. The language is copied from the act of 1802, and shows that a certificate can only be resorted to when*"a question" has occurred on which the judges have differed, and where "the point" of disagreement may be distinctly stated. This court has frequently held that the "question" referred to must be a question of law, and must be capable of being presented in a single point. Chief Justice MARSHALL, in Wayman v. Southard, 10 Wheat. 20, said: "The law which empowers this court to take cognizance of questions adjourned from a circuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause." In Dennistoun v. Stewart, 18 How. 565, the matter is examined with precision. In that case the judges differed in opinion as to the charge which should be given to the jury upon the evidence adduced. The evidence was set forth in the certificate, and the points upon which the judges differed as to the charge to be given were stated. The court, speaking by Mr. Justice DANIEL, (page 568,) recapitulated the interpretations which had been given to the act in reference to the requisites of its jurisdiction on such certificates. (1) They must be questions of law, and not questions of fact,-not such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause, (referring to Wilson v. Barnum, 8 How. 258.) And the question on which the judges differed must be stated; not whether a demurrer made on several grounds should be sustained, (referring to U. S. v. Briggs, 5 How. 208.) (2) The points stated must be single, and must not bring up the whole case for decision, (referring to U. S. v. Bailey, 9 Pet. 267; Adams v. Jones, 12 Pet. 207; White v. Turk, Id. 238; Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54.) And, inasmuch as the certificate in that case (Den nistoun v. Stewart) did not present a single or specific question of law arising in the progress of the cause, but referred to this court the entire law of the case as it might arise upon all the facts supposed by the court, the case was remanded to the circuit court to be proceeded in according to law, without any answer to the questions propounded.
The cases and points adjudged on the subject are very fully rehearsed by Mr. Justice SWAYNE, in Daniels v. Railroad Co. 8 Wall. 250. That was an action for an injury caused by a collision of railroad cars, and, after reciting