text:
Unity v. Burrage/Opinion of the Court

The plaintiff in error alleges that the act of March 27, 1869, by authority of which the bonds sued on were issued, is a private act, and should have been specially recited in the declaration; and as the declaration contains no such recital, it is bad on general demurrer. The defendants in error deny that the act is a private act.

Private acts are thus defined by Blackstone:--

'Special or private acts are rather exceptions than rules,     being those which operate only upon particular persons and      private concerns, such as the Romans entitled senatus      decreta, in contradistinction to the senatus consulta, which      regarded the whole community, and of these (which are not      promulgated with the same notoriety as the former) the judges      are not bound to take notice, unless they be formally shown      and pleaded. Thus, to show the distinction, the statute 13     Eliz., c. 10, to prevent spiritual persons from making leases      for longer terms than twenty-one years, or their lives, is a      public act, being a rule prescribed to the whole body of      spiritual persons in the nation; but an act to enable the      Bishop of Chester to make a lease to A. B. for sixty years is      an exception to this rule; it concerns only the parties and      the bishop's successors, and is, therefore, a private act.' 1      Black. Com. 86.

Tested by this definition, it is clear that the act under consideration is a public and not a private act. It legalizes and makes valid elections held by the people of Macon County, Illionis, on the question of issuing the negotiable bonds of the county in aid of certain railroad companies therein named, and authorizes all the townships in the counties where township organization had been adopted, lying on or near to the line of the Indiana and Illinois Central Railway Company, on certain specified conditions, to subscribe to the stock of that company, and issue their negotiable coupon bonds in payment thereof. This statute affects not only the people of the county of Macon, and of many of the townships of all the counties lying on or near the line of the railroad designated, but also all persons to whose hands the bonds issued by the county and township mentioned, may come.

Some cases throwing light upon the question will be cited.

An act passed by the legislature of Indiana, Feb. 14, 1848, to incorporate the Ohio and Mississippi Railroad Company, provided for subscriptions to the stock of the company by the commissioners of any county through which its road might pass, and an issue of the bonds of the county to pay for the same. This act was declared a public act by this court in Commissioners of Knox County v. Aspinwall, 21 How. 539.

In ''State, ex rel. Cothren, v. Lean'' (9 Wis. 279) it was held that a law providing for the location of county seat is a general law. The Supreme Court of Indiana, in West v. Blake (4 Blackf. (Ind.) 234), held that an act authorizing an agent of the State to lay off and sell lots in a particular town, it being the seat of government, was a public act. The courts said: 'Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, &c., for public uses, all operate upon local subjects. They are not for that reason special or private acts.' In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. Pierce v. Kimball, 9 Me. 54; New Portland v. New Vineyard, 16 id. 69; Gorham v. Springfield, 21 id. 58; Burnham v. Webster, 5 Mass. 266; Commonwealth v. McCurdy, id. 324; Commonwealth v. Springfield, 7 id. 9; Bac. Abr., Statute F. On these, and many other authorities which might be cited, we think that the act by which the issue of the bonds sued on was authorized is a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded.

But independently of authority there is a conclusive answer to this claim of the plaintiff in error.

The act of Feb. 24, 1854, to which the act of March 27, 1869, is supplementary and amendatory, is declared in express terms of its fifth section to be a public act. It cannot, therefore, be said that the act which supplements and amends it, and thereby becomes a part of it, is a private act. If one is public, both must be.

The plaintiff in error next claims that the Decatur and Indianapolis Railroad Company and the Indiana and Illinois Central Railway Company were consolidated; that the effect of the consolidation was to destroy the old corporations and create a new one, and, therefore, when the act of March 27, 1869, was passed, entitled an act supplementary to and amending an act entitled 'An Act to amend the act entitled an act to incorporate the Decatur and Indianapolis Railroad Company, approved Feb. 8, 1853,' and authorizing certain townships to subscribe to the capital stock of the Indiana and Illinois Central Railway Company, the charter of the Decatur and Indianapolis Railroad Company had been surrendered; that the company had ceased to exist, and that, there being no corporation to which it could apply, the act of March 27, 1869, was, therefore, of no effect.

This seems to be an attempt to overturn by argument and inference a deliberate enactment of the legislature, and erase it bodily from the statute book.

Let it be conceded that the effect of the consolidation of the two companies was to create a new corporation under the name of the Indiana and Illinois Central Railway Company. It was perfectly competent for the legislature to authorize townships to subscribe to the stock of the new company, and issue their bonds in payment thereof. This was what the act under consideration did. The act which it purported to amend, after reciting in its preamble the fact of the consolidation of the Decatur and Indianapolis Railroad Company with the Indiana and Illinois Central Railway Company, conferred on the latter company, 'as existing under the consolidation, all the property, rights, franchises, and powers held, enjoyed, and possessed by either of said original corporations prior to their said consolidation.'

The act under consideration authorized certain townships to subscribe stock to this corporation thus formed, and to issue their bonds in payment therefor. It might fairly be entitled an act to amend an act, by authority of which the company existed.

The new company, existing by recognition of the act of Feb. 20, 1854, had the capacity to accept, and did accept, this amendment, for it received and put in circulation the bonds issued under its authority.

There is no ground for the theory that the act of March 27, 1869, is inoperative. We are bound, if possible, to give it effect, ut res magis valeat quam pereat. So far from its binding force being a matter of doubt, we see no difficulty, based on the reasons advanced by the plaintiff in error, in the way of giving it full and complete effect.

It is next said by the plaintiff in error that the act is unconstitutional, and, therefore, void and of no force.

The ground of its unconstitutionality is alleged to be that it does not conform to sect. 23 of art. 3 of the Constitution of Illinois of 1848, which provides that 'no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.'

Assuming the act in question to be a local law, is it open to the objection urged against it? It legalizes two elections held by the people of Macon County; the first to decide whether the county should issue its bonds to the amount of $60,000 to aid in building the Indiana and Illinois Central Railway, and the second to decide whether the county should subscribe $40,000 to the stock of said railway company and issue its bonds for that amount in payment thereof, and declares valid and binding any bonds of the county issued or to be issued in pursuance of said elections, and it authorized certain townships on conditions prescribed to subscribe to the stock of said railway company, and issue their bonds in payment thereof.

This act is entitled an act 'supplementary to and amending' the act conferring corporate powers on the Indiana and Illinois Central Railroad Company.

The question whether such an act is obnoxious to the provision of the Illinois Constitution in relation to the subject and title of local acts, has been substantially decided in the negative by this court in the case of San Antonio v. Mehaffy, 96 U.S. 312.

The Constitution of Texas declares that 'every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.' The act of the legislature of Texas, said to be in violation of this provision, was entitled 'An Act to incorporate the San Antonio Railroad Company.' Among other provisions, it authorized the city of San Antonio to take stock in that company, and issue bonds to pay for the same. The act was decided to have but one object, and that was expressed in the title.

The Supreme Court of Illinois, in the case of ''The Belleville &c. Railroad Company v. Gregory'' (15 Ill. 20) has decided that an act whose title was 'An Act to incorporate the Belleville and Illinois Railroad Company,' and which contained a section which authorized the city of Belleville and the county of St. Clair to subscribe for stock in the company, was not in violation of the section of the State Constitution under consideration. Fireman's Benevolent Association v. Lounsbury, 21 Ill. 511; Supervisors of Schuyler County v. People, 25 id. 181; O'Leary v. County of Cook, 28 id. 534; Erlinger v. Boneau, 51 id. 94; People v. Brislin, 80 id. 423; Binz v. Weber, 81 id. 288. The act cannot, therefore, be held to be open to the constitutional objection under consideration.

But it is insisted that the second election ratified by the act under consideration, not only had reference to subscriptions of stock and the issue of bonds in aid of the Indiana and Illinois Railway Company, but also of three other railroad companies, and the act, therefore, contained more than one subject, and the latter subject was not expressed in the title.

In such a case the provisions of the law touching the subject, which is expressed in the title, must stand. Those relating to the other subjects, not expressed in the title, alone fall. By such a construction the purpose of the constitutional provision is fully accomplished.

All the provisions of the law under consideration which have reference to the Indiana and Illinois Central Railway Company constitute but one subject; this, as we have seen, is expressed in the title; the other matters constituting other subjects, not expressed in the title, are so entirely disconnected with that which is expressed, that they can be eliminated and leave the remainder of the act in full force. Packet Company v. Keokuk, 95 U.S. 80.

We are of opinion, therefore, that so much of the act of March 27, 1869, as authorizes the issue of the bonds sued on, is fairly expressed in the title, and is constitutional and valid.

It is next alleged by the plaintiff in error that the Decatur and Indianapolis Railroad Company was incorporated under the general law of Illinois 'to provide for a general system of railroad incorporations,' and not under the special act to incorporate the Decatur and Indianapolis Railroad, of Feb. 8, 1853. And it is insisted that the act of March 27, 1869, under authority of which the bonds in suit were issued, was an attempt by special act to add to the powers conferred upon the company by a general law.

Conceding the premises, we do not think the conclusion follows. There is nothing in the Constitution of Illinois or the unwritten restraints upon legislative power which forbids such an enactment. We can see no reason, either in the Constitution of the State or in public policy, to restrain the legislature from declaring that certain townships may subscribe to the stock of a particular railroad company, organized under a general law, and issue their bonds to pay for the same.

But the premises which we have conceded are not true. The Decatur and Indianapolis Railroad Company was organized under the special authority of the act to incorporate that company upon compliance with the requirements of the general law.

The Indiana and Illinois Central Railway Company, in whose behalf the act of March 27, 1869, was passed, derived its corporate existence and power from a consolidation between a company of that name and the Decatur and Indianapolis Railroad Company, made by authority of the law under which the latter company was organized, and of the act of Feb. 20, 1854, which recognized the consolidation and confirmed to the new company 'all the property, rights, franchises, and powers held and enjoyed by either of said original corporations.'

The Indiana and Illinois Central Railroad Company derived its existence from special laws and not from the act to provide for a general system of railroad incorporations. There is, therefore, no ground for the objection under consideration to stand on.

The case is a clear one, and it is unnecessary to devote further space to its discussion. There was in existence, by virtue of the legislation of the State of Illinois, a corporation known as the Indiana and Illinois Central Railway Company. By a perfectly valid and constitutional act certain townships, among them the plaintiff in error, were authorized, upon a vote of a majority of their legal voters, to subscribe stock in the railway company mentioned and issue their bonds to pay for it. The election was held under this law in the township of Unity. A majority of its legal voters at that election decided in favor of subscribing to the stock of the railroad company, and issuing the bonds of the township in payment thereof. The stock was accordingly subscribed, and the bonds were issued by authority of law and sold. The railroad has been built and is in full use as one of the post-roads of the United States. The holders of the bonds are entitled to their money, and there is no legal obstacle in the way of a judgment therefor in their favor.

Judgment affirmed.

title: Unity v. Burrage/Opinion of the Court


text: Talk:Unity v. Burrage/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Wicke v. Ostrum

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This is a suit by William Wicke against Henry P. Ostrum to restrain the alleged infringement by the latter of letters-patent No. 38,924, granted June 16, 1863, to George Wicke, for an improvement in machines for nailing boxes, of which letters the complainant is the owner. The defendant denied the infringement, and alleged that the machines made, used, and sold by him were manufactured substantially as specified and claimed in letters-patent No. 172,579, granted to him Jan. 25, 1876, for an improvement in machines for nailing boxes.

The specification and drawings of Wicke's machine are as follows:--

'To all whom it may concern:

'Be it known that I, George Wicke, of the city, county, and State of New York, have invented a new and improved machine for nailing boxes; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawing forming a part of the specification, in which—

'Fig. 1 represents a sectional side elevation of my invention.

'Fig. 2 is a front elevation of the same.

'Similar letters of reference in both views indicate corresponding parts. The object of this invention is to drive the nails which hold together the several boards constituting a box for cigars or for other articles. The nails are generally driven by a hammer, each nail for itself, which obviously is a very tedious operation. This invention consists in the employment of grooved spring jaws for the purpose of holding the nails and to guide them to the proper place, and it consists further in combining with said spring jaws a corresponding number of rising and falling plungers for the purpose of driving each nail singly and all at the same time; and also in arranging said plungers with globe or disk shaped collars in such a manner that they spread the grooved spring jaws at the proper moment and allow the heads of the nails to pass; also in arranging the cam that serves to depress the plungers with a circular portion in such a manner that the plungers cannot be depressed any further than necessary to drive the nails; finally, in the general arrangement and combination of all the parts, so that the plungers and jaws as well as the table which supports the boards can be adjusted according to the different sizes of boxes to be made.

'To enable others skilled in the art to make and use my invention, I will proceed to describe it.

'A represents a frame of cast-iron or of any other suitable material. Secured to the upper part of this frame by means of angular guide-pieces, a, is the rising and falling gate B, which is operated by means of a cam, C, on the end of a shaft, D, which connects by an arm b and rod c with a treadle, d.

'The cam C, on being turned in the direction of the arrow marked on it in Figure 2, depresses the gate B, until the circular portion ef bears upon the gate. This portion of the cam is made to form part of a circle described from the centre of shaft D, so that the cam may be turned more or less without depressing the gate B any further than desirable.

'The gate B acts on one or more plungers, E, each of which moves up and down in a carriage, F, and a spring, g, has the tendency to raise the plunger after the same has been depressed, or to keep it up when not exposed to the action of any power. The carriage F slides in a lateral direction on ways G, and it is adjusted at the proper point where the nail is to be driven by set screws h. A series of plungers to correspond to the number of nails to be driven simultaneously may be so arranged that, by depressing the treadle, all the plungers are depressed and consequently all the nails inserted at the same time.

'The lower end of the plunger E is turned down, as clearly shown in the drawing, leaving them just large enough to cover the heads of the nails to be driven, and a disk-shaped collar, i, is formed at a short distance above the lower ends.

'When depressed, the plunger enters the spring jaws H, which are secured to the sides of the carriage F. These jaws are provided with grooves, j, to receive the nails (see Figure 1), and they are so formed that when the plunger descends, the disk-shaped collar i spreads the same, allowing the head of the nail to pass freely through the grooves j.

'The nails are fed through an inclined tubualr channel, I, one after the other, and if several plungers are used, the whole series are depressed by one motion of the cam C.

'A table, J, on the lower portion of the frame A, serves to support the boards to be nailed, and this table is adjustable by means of screw spindle K; said boards are adjusted in the correct position by a slide, L, which is adjustable in a groove l. A small recess in the frame A allows the horizontal boards to project very little beyond the edge of the vertioal board, so that the rough edges of the boards can be removed by the aid of a plane after the nailing has been accomplished.

'The table J, the slide L, and the plunger or plungers can thus be adjusted to suit boxes of different size, and the nails are driven simultaneously by one motion of the foot.

'What I claim as new, and desire to secure by letters-patent, is—

'1st, The employment of the grooved spring jaws, H, substantially as described for the purpose of receiving the nails, and to guide them to their proper places.

'2d, The combination with the sping jaws, H, of the rising and falling plunger, E, constructed and operated substantially as and for the purpose described.

'3d, Arranging the plunger, E, with a disk-shaped collar, i, or its equivalent, to operate in combination with the spring jaws, H, substantially as and for the purpose described.

'4th, The arrangement of the circular portion, e, f, on the cam, C, to operate in combination with the gate, B, and treadle, d, substantially as and for the purpose set forth.

'5th, The arrangement and combination of one or more adjustable carriages F, table J, and slide L, constructed and operating in the manner and for the purpose substantially as specified.'

Ostrum's specification and drawings are as follows:--

'To all whom it may concern:

'Be it known that I, Henry P. Ostrum, of the city and county of New Haven, State of Connecticut, have invented an improvement in machines for nailing boxes, and I do hereby declare the following to be a full, clear, and exact description of the invention, such as will enable others skilled in the art to which it appertains to make and use it, reference being had to the accompanying drawing, forming a part of this specification, in which—

'Figure 1 is a direct end view or elevation of the end of the machine. Figure 2 is a perspective view of the machine.

'My invention relates to that class of machines which are used for nailing together the sides and ends of boxes, in which any required number of nails may be simultaneously driven by a treadle or other means, and consists in a novel construction and arrangement of parts hereinafter more fully set forth and claimed.

'The letter A, Fig. 2, indicates a platform of cast-iron, having projections on its under side in which the rod y, screws p, and rock shaft G, turn, and on which the ratchets o o'' move back and forth. This platform, with the legs attached, constitutes the frame of the machine. The rest B is a straight bar of metal extending across and beyond the platform A, and has pins x x passing through holes in the same, which are forced down upon the ratchets o o by springs attached to the rest. It is also provided with the guides i i, which slide between the side edges of the platform and the ratchets o o. The ratchets o o are straight bars of iron with notches on their upper sides, and are movable back and forth, on the projections from the under sides of the platform, and extending beyond it. Each of these ratchets has a nut attached to it, in which the screws p p turn and by which the ratchets are moved. Only one of these screws is shown in the drawing. In the front projection from the under side of the platform are two screws or threaded bolts p p, Fig. 2, which turn in the projection and in the nuts attached to the ratchets, and have a bevel-gear wheel attached, by which they are turned. The shaft y is also made to turn in the projections from the under side of the platform, and is furnished with two bevel-gear wheels, which mesh in the bevel-gear wheels on the screws p p, and is also furnished with a crank on one of its ends. The elevated straight bar r, supported on two posts attached to the platform, is arranged so that its front side and the front ends of the dies m m m are in the same plane, and serves to hold one of the pieces to be nailed at right angles to the other piece resting on the platform. The dies m m m vary in number with the nails to be driven; are made with slots on their upper sides, which are enlarged at their ends nearest the hammers, to correspond with the size of the heads of the nails placed in them; and to allow the nails to lie parallel with the platform, or nearly so, and are fitted into the dovetailed slot in the platform. They are loosely held in their places by the hammers, and may be, when desired, securely held by a wedge in the dovetailed slot, moved by a screw on its outer end.''

'The head a is a bar of cast metal, extends across the platform, and has on its ends enlargements or cross-pieces, which slide on the platform. It is held in its place by the pieces, f f, screwed to the platform, and has a slot in which the hammers are held, and a pin, e, in each of the enlargements or cross-pieces which fit in the slots in the short arms d d of the rock shaft G, by which the head is moved back and forth. The hammers n n n vary also in number with the nails to be driven, and are in the form of a threaded bolt with a head, from the front ends of which small road, a little larger than the nails to be driven, project into the enlarged end of the slots in the dies. They are provided with nuts, by which they are held in the head a, and by which they may be adjusted at any distance apart. The rock shaft G, arranged under the platform, is made to turn in projections from the platform, and with a long arm E extending nearly to the front side of the machine; also with two short upright arms, d d, having slots in their ends. A spiral spring extends from the long arm, and is attached to the under side of the platform, and draws the arm upwards, while the short arms move the head a backward.

'The treadle D is a part of, or is attached to, a bar, extending to a shaft pivoted to two of the legs of the frame, or is otherwise suitably constructed; it is also suitably connected to the long arm of the rock shaft.

'With the above description of the parts of my machine, its operation will be readily understood. As the pieces to be nailed together are placed, the one perpendicularly against the front ends of the dies m m m, and against the elevated bar a, and the other on the platform against the first, and as the rest B is adjusted against it by the pins x x, operating on the ratchets o o, as pawls, the pieces are then screwed together between the dies m m m, and the rest B, by turning the rod y, geared to the screws p p, moving the ratchets o o, and the rest B. The frame A, the dies m m m, and the rest B, adjusted by the pins x x, acting on the ratchets o o, and moved by the screws p p, co-operate to tightly hold the pieces to be nailed. The pieces being thus held, as the treadle D is forced downward, the head a, with the hammers n n n, is forced forward, driving the nails placed in the slots in the dies m m m, to their places, nailing the two pieces together.

'I am aware of the patent granted to M. Blaser, No. 155,284, Sept. 22, 1874, and hereby disclaim the same.

'I claim as my invention—

'The combination of frame A, treadle D, rock shaft G, head a, provided with one or more adjustable hammers, n n, one or more adjustable dies, m m, and the rest B, all the said parts constructed and combined substantially as set forth.'

The court, on final hearing, dismissed the bill, and the complainant appealed.

Mr. Arthur v. Briesen for the appellant.

Mr. William T. Birdsall and Mr. N. A. Calkins, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Wicke v. Ostrum


text: Talk:Wicke v. Ostrum

title: Talk:Wicke v. Ostrum


text:
Wicke v. Ostrum/Opinion of the Court

The patent sued on in this case is for a machine for nailing boxes, invented by George Wicke. Before this invention nails were driven singly, and by hand. By the machine more than one could be driven at the same time.

In the description of the invention which accompanied the application for the patent, the inventor said, in effect, that it consisted in the employment of grooved spring jaws for the purpose of holding the nails and guiding them to their places, combined with a corresponding number of rising and falling plungers for driving each nail singly and at the same time. The plungers were made with globe or disk shaped collars, so adjusted or arranged that they would spread the spring jaws at the proper moment to allow the heads of the nails to pass. To depress the plungers, he arranged a cam, so formed and fitted as to have spent its force when the nail was driven to its place. 'Finally,' he said his invention consisted 'in the general arrangement and combination of all its parts, so that the plungers and jaws, as well as the table which supports the boards, can be adjusted according to the different sizes of the boxes to be made.' He then described the construction of the different parts of the machine and the manner of its operation, from which, and the drawings and models, it appears that the machine was an upright one, by means of which the nails were to be driven vertically.

With such a machine the nails must necessarily be held in place by some mechanical device until they were guided to and fastened in the board. A nail implies a head larger than its point, and, if it is to be driven vertically, some provision must be made for directing the point carefully to its proper place, and then letting the head pass without obstruction as it is driven. Such clearly was the office of the 'grooved spring jaws' and the 'globe or disk shaped collars' of the plungers in this machine.

To make the claims of his letters-patent intelligible, they must be read in connection with the specifications to which they relate, and in this way it becomes apparent that the object of the inventor was to secure a patent for a new combination of old elements. Grooved spring jaws were confessedly very old. So were rods of iron with curvilinear projections, like those called plungers, and cams, of almost any shape, and treadles, and levers, and adjustable carriages, tables, and slides. The use of these things separately could not be patented. But the combinantion of them so as to produce a machine useful for driving nails was new. This the inventor might claim, and, so far as anything appears, he was entitled to a patent for the employment of spring jaws in the combination and for the purpose described in his specifications; for the combination of his peculiarly shaped plungers with spring jaws for the purposes of such a machine; for the use of the cam he described in combination with the gate and treadle to drive his machine; and for the adjustable carriage, table, and slide when used on such a machine as his. He was entitled also to the benefit of all the mechanical equivalents of his several elements, known at the time of his invention, if used in the same combination.

As has already been seen, Wicke made an upright machine. For such a machine the combination of all his several elements was necessary. If any one, or its mechanical equivalent, was left out, an upright machine like his could not be operated successfully. A combination of other elements, not the equivalents of has, would be a different machine, and consequently not an infringement. From the evidence it is clear he was the first to put into practical use the idea of driving more than one nail at the same time in the manufacture of boxes by the use of machinery. The idea he could not patent, but his contrivance to make it practically useful he could. By his patent he appropriated to himself only so much of the field of invention which his idea embraced as was covered by the machine described in his specification and claimed in his application.

The defendant conceived the idea of driving nails horizontally instead of vertically, and made a machine for that purpose, which he patented. He does not use the spring jaws or the peculiar shaped plungers of the Wicke machine, because he does not need them. As his object is to drive the nails horizontally, they can be laid in a groove and held there by gravity until forced into the board. Having no spring jaws to be opened, he need not shape his plunger or driver so as to effect that object. He thus has been enabled to dispense with two elements of Wicke's combination, in the absence of which that machine could not be successfully worked. Neither has he substituted any mechanical equivalent for what he has thus put aside. By changing the form of the machine and the manner of its operation, he has no need of any such contrivances. He may use the equivalent of one half of the spring jaw of Wicke's machine, but he does not want the other half, or anything, else in its place, as the nail will lie where it is put until driven into the board. He accomplishes by natural causes what Wicke required a mechanical contrivance to do. His machine will not do the work of Wicke's, that is to say, drive a nail vertically, nor will Wicke's do that of his, and drive horizontally. The truth is, the two machines are entirely unlike, and while they both drive more nails than one at the same time, they do it in different ways. That of Wicke, operating vertically, requires all the elements of his combination, while that of the defendant, doing its work in another way, is made by leaving out two elements which are indispensable to Wicke.

The fair construction of the fourth and fifth claims is that they are for the combination of the cam, gate, and treadle, or the adjustable carriage, table, and slide, with the elements of the other claims. It is possible that if there had been nothing more done by the defendant than to put into the machine of Wicke his rock shaft and attachments in the place of the cam, the shaft would be considered as the equivalent of that element in Wicke's device. So, too, the bed, slides, and gauges of the defendant's machine, if used in that of Wicke, might be considered the same in effect as the adjustable carriage, table, and slide which he contrived. But these contrivances of the defendant are not used in combination with any of the other devices of Wicke, and, therefore, they do not infringe his claims.

On the whole, we are clearly of the opinion that the court below was right in holding, as it did, that no infringement had been proven.

Decree affirmed.

title: Wicke v. Ostrum/Opinion of the Court


text: Talk:Wicke v. Ostrum/Opinion of the Court


text:
Thompson v. United States (103 U.S. 480)

ERROR to the Circuit Court of the United States for the Western District of Michigan.

The facts are stated in the

ERROR to the Circuit Court

Mr. H. F. Severens for the plaintiff in error.

Mr. M. J. Smiley, contra.

Mr. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Thompson v. United States (103 U.S. 480)


text:
Thompson v. United States (103 U.S. 480)/Opinion of the Court

This case arises upon a petition fof a mandamus to compel Thompson, the township clerk of the township of Lincoln, in the county of Berrien, State of Michigan, to make and deliver to the supervisor of the township a certified copy of a judgment recovered against it by the Cambria Iron Company, the petitioner, in order to its being placed upon the tax-roll for collection and payment. The questions arising are much the same as those disposed of in the case of Edwards v. United States, supra, p. 471. The petition states that the Cambria Iron Company recovered judgment against the township of Lincoln, in the Circuit Court of the United States, on the 29th of May, 1876, for the sum of $6,273.32, besides costs, and caused to be delivered a certified copy thereof to Thompson, the township clerk, with a request to certify it to the supervisor, to be raised by tax on the township; but that Thompson declared that he would not do it, and pretended that there was no supervisor; that one Mitchell Spillman, who had been supervisor, had resigned; and that if there were any supervisor, still he would not do it; that he himself had resigned, and was not clerk of the township; that the supervisor and himself had both resigned for the express purpose of defeating the collection of the petitioner's judgment, and other similar claims. The petition charges that the said supervisor and clerk have fraudulently combined to cheat and defraud the petitioner by falsely pretending to resign, whereas they actually continue to discharge the duties of their offices,-setting forth various facts corroborative of the charge.

The court below having granted a rule to show cause why a mandamus as prayed for should not issue, the defendant filed an answer to the petition, admitting that a judgment had been entered against the township, as stated in the petition, but averring that it was not a valid judgment, because, as the answer alleged, the court never obtained jurisdiction; that no service was ever had of process in the cause upon the supervisor of the township; that Alonzo D. Brown, upon whom service was made, was not at the time supervisor; and that, although one Clapp, an attorney, appeared for the township, he was never employed by the township; that the defendant was, it is true, duly elected clerk of the township in April, 1876, but that he resigned his office before the certified copy of the judgment was served upon him, by filing in the office of the clerk (that is, his own office) and depositing with the files of the township a written resignation addressed to the township board; and that he has not acted as clerk since. He admits that he refused to certify the judgment, but did so because he was not clerk, and because there was no supervisor, Spillman, who had been supervisor, having resigned. This answer was demurred to, but the demurrer was overruled and the cause came on for trial. The jury rendered a special verdict, as follows:--

'First, That on the twenty-third day of November, 1875, Alonzo Brown, upon whom the declaration was served in the original case of The Cambria Iron Company v. The Township of Lincoln, was supervisor of said township of Lincoln, and was such supervisor at the time the declaration in said cause was served upon him as such supervisor by the marshal.

'Second, That George S.C.lapp, who entered his appearance as attorney for the defendant in said cause, and appeared and pleaded therein for said township of Lincoln, was duly authorized by said defendant to appear and plead for it in said cause.

'Third, That the respondent, John F. B. Thompson, was, at the time of the service of the order to show cause why a mandamus should not issue against him, clerk of the said township of Lincoln, and still is such clerk, and has not resigned the said office.

'Fourth, That Mitchell Spillman was, at the time the said order to show cause was served, the supervisor of said township, and still holds the said office, and held the said office on October 1, A.D. 1876.'

The questions raised on the trial were, as in the previous case of Edwards, whether the tender of a resignation by the supervisor or the clerk of a township, by filing the same with the clerk, was valid and effectual as a resignation, so as to discharge the officer of his official character, without an acceptance by the township board, or an appointment to fill the vacancy. Such a resignation was relied on to show that Brown, on whom process in the original action was served, was not supervisor, and that Spillman was not supervisor, and the defendant was not clerk when the present proceedings were commenced. As we have fully discussed this question in the previous case, it is not necessary to say anything further on the subject. The ruling of the court below was in conformity with our decision in that case. This also disposes of the question of the appearance of Clapp, the attorney in the original action, he having been employed by Brown, the supervisor.

Another question raised at the trial was, whether the petitioner might show the motive and intent with which the supervisor and clerk attempted to resign, with a view to show that it was done for the purpose of defranding the petitioner, and avoiding to do those acts which were necessary to the collection of the judgment. The court allowed evidence to be given on the subject, and to this the defendant excepted. We do not see why the evidence was not admissible for the purpose of showing that the attempted resignation was simulated and fraudulent. But it is not necessary to decide this point, since the admission of the testimony did not injure the defendant, because the attempted resignations were not completed by the acceptance of the township committee.

Another point raised was, that it appeared by the township book, offered in evidence, that the township board did appoint a successor to the defendant as township clerk on the fourth day of November, 1876, after the cause was at issue. On motion of the petitioner's counsel this evidence was stricken out for the reason that such fact having arisen since the return was made, it was not competent under the issue framed thereon. It does not appear that this matter was in any way brought to the notice of the court, or sought to be put in issue, until the evidence was offered during the trial. In addition to this, the evidence was not conclusive. It did not show that the attempted appointment was effectual. Had the point been properly put at issue, the whole matter could have been known. We think the court was justified in striking out the evidence. As a matter of defence, whether in abatement or in bar, it should have been set up by a plea puis darrein continuance, or its equivalent. It could not be given in evidence under any of the issues in the cause. Jackson v. Rich, 7 Johns. (N. Y.) 194; Jackson v. McCall, 3 Cow. (N. Y.) 79.

But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of the term of office of the defendant where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held by very high authority. People v. Champion, 16 Johns. (N. Y.) 60; People v. Collins, 19 Wend. (N. Y.) 56; High, Extr. Rem. sect. 38. We have had before us many cases in which the writ has, without objection, been directed to the corporation itself, instead of the officers individually; and yet, in case of disobedience to the peremptory mandamus, there is no doubt that the officers by whose delinquency it was incurred, would have been liable to attachment for contempt. The proceedings may be commenced with one set of officers and terminate with another, the latter being bound by the judgment. Board of Commissioners of Knox County v. Aspinwall, 24 How. 376; Supervisors v. United States, 4 Wall. 435; Von Hoffman v. City of Quincy, id. 535; Benbow v. Iowa City, 7 id. 313; Butz v. City of Muscatine, 8 id. 575; Mayor v. Lord, 9 id. 409; Commissioners v. Sellew, 99 U.S. 624; and many others.

And so, if we regard the substance and not the more form of things, a proceeding like the present, instituted against a township clerk, as a step in the enforcement of a township duty to levy the amount of a judgment against it, ought not to abate by the expiration of the particular clerk's term of office, but ought to proceed to final judgment, so as to compel his successor in office to do the duty required of him in order to obtain satisfaction from the township. The whole proceeding is really and in substance a proceeding against the township, as much as if it were named, and is in the nature and place of an execution. If the resignation of the officer should involve an abatement, we would always have the unseemly spectacle of constant resignations and reappointments to avoid the effect of the suit. Where the proceeding is in substance, as it is here, a proceeding against the corporation itself, there is no sense or reason in allowing it to abate by the change of individuals in the office. The writ might be directed to the township clerk by his official designation, and will not be deprived of its efficacy by inserting his individual name. The remarks of Mr. Justice Cowen, in People v. Collins (19 Wend. (N. Y.) 56), are very pertinent to the case, and seem to us sound. That was a mandamus to commissioners of highways who were elected annually; and it was objected that their term would expire before the proceedings could be brought to a conclusion. He said: 'The obligation sought to be enforced devolves on no particular set of commissioners, and no right is in question which will expire with the year. The duty is perpetual upon the present commissioners and their successors; and the peremptory writ may be directed to and enforced upon the commissioners of the town generally. To say otherwise would be a sacrifice of substance to form.' In this connection we may also refer to the recent case of Commissioners v. Sellew, supra.

The cases in which it has been held by this court that an abatement takes place by the expiration of the term of office have been those of officers of the government, whose alleged delinquency was personal, and did not involve any charge against the government whose officers they were. A proceeding against the government would not lie. The Secretary v. McGarrahan, 9 Wall. 298; United States v. Boutwell, 17 id. 604.

We think that the proceedings have not abated either by the resignation of the clerk and the appointment of a successor, or by the expiration of his term of office, even if it sufficiently appeared that either of these contingencies had occurred.

Judgment affirmed.


text: Talk:Thompson v. United States (103 U.S. 480)/Opinion of the Court


text:
Kern v. Huidekoper

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Edwin Walker for the plaintiff in error.

Mr. Henry Crawford, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Kern v. Huidekoper


text: Talk:Kern v. Huidekoper

title: Talk:Kern v. Huidekoper


text:
Kern v. Huidekoper/Opinion of the Court

This was an action of replevin brought by Frederick W. Huidekoper, John N. Dennison, and Thomas W. Shannon, in the Circuit Court of Cook County, Illinois, at its May Term, 1877, to wit, on May 22, 1877, against Charles Kern, to recover the possession of one thousand tons of old railroad iron, which as they claimed he wrongfully detained from them.

The writ of replevin, issued May 23, 1877, was on the same day served by the coroner of the county, who received from the plaintiffs a statutory bond, and delivered to them the possession of the iron. The summons was made returnable at the next term of the court, which began on the third Monday of June.

The declaration, which was filed June 30, alleged that plaintiffs were the owners and lawfully entitled to the possession of certain goods and chattels, to wit, the iron in controversy, which formerly had been in the track of the Chicago, Danville, and Vincennes Railroad, but that it was then lying along the Mud Lake track, near Twenty-fourth Street, in the city of Chicago; that it was of the value of $18,000; that on May 9, 1877, Kern had wrongfully taken possession of it, and still detained the same from them.

Kern, July 6, 1877, pleaded that he was the sheriff of Cook County, and that as such, May 1, 1877, he had levied on and still held the iron, by virtue of two certain executions against the Chicago, Danville, and Vincennes Railroad Company, both issued upon judgments in the Superior Court of Cook County,-one in favor of the Bank of North America, and the other in favor of John McCaffrey, for the aggregate sum of about $11,000; and that at the time of the levy the iron was the property of that company.

On May 31, 1877, the plaintiffs filed in the court their petition to remove said cause to the Circuit Court of the United States for the Northern District of Illinois. The petition alleged that Kern was a citizen of the State of Illinois, and that the plaintiffs at the institution of the action were, and still continued to be, citizens of States other than Illinois; that the amount in controversy in the suit exceeded $500; that there had been no trial of the suit, and the same could not have been tried before the term at which said petition was filed; and that the suit involved a controversy between citizens of different States, which could be wholly determined as between them.

The petition was accompanied by the bond required by the statute of the United States.

On June 2, the court denied the petition for removal, on the ground that it was prematurely presented and filed; that at that date no declaration had been filed, the defendant was not in court, and was not required to appear until the third Monday of June.

On June 30, the petition of the plaintiffs and their bond for the removal of the cause being still on file, and the time for the appearance of the defendant having passed, the plaintiffs filed their declaration, and immediately moved the court for an order transferring the cause, in accordance with their petition, to the Circuit Court of the United States. This motion was denied.

On July 6, the date upon which the defendant filed his plea, and after said plea had been filed, the plaintiffs caused an order to be entered dismissing their petition for the removal of the cause filed May 31, and immediately filed another for the same purpose, containing the same averments, together with a bond, as required by the statute.

This petition was also denied by the State court.

Nevertheless, on July 27, 1877, the plaintiffs filed a transcript of the record of the cause in the clerk's office of the Circuit Court of the United States for the Northern District of Illinois. The term of that court, as prescribed by law, began on the first Monday of that month.

On Nov. 14, 1877, the said term still continuing, that court made an order approving the filing of the said record on July 27 preceding.

On June 5, 1878, the counsel of the plaintiffs moved that court that an order be entered declaring that the cause had been removed from the Circuit Court of Cook County, and that the Circuit Court of the United States had exclusive jurisdiction thereof by reason of such removal, and that the cause be placed on the trial calendar of the court. The court sustained the motion, and directed an order to be made in accordance therewith.

On June 26, 1878, the defendant, by his attorney, entering special appearance for that purpose, filed a written motion in the United States Circuit Court for the dismissal of said action. This motion was overruled.

At the July Term, 1878, of the Circuit Court of Cook County, that court still claiming jurisdiction of the cause, notwithstanding the proceedings for its removal above recited, the plaintiffs filed in that court a replication to the plea of the defendant, in which they alleged that said reilroad iron at the time of the levy was the property of the plaintiffs, and not of the railroad company, as alleged in defendant's plea.

On Nov. 12, 1878, the defendant moved in the Circuit Court of the United States for leave to file a plea to the jurisdiction, which, after argument of counsel, was granted. Thereupon, on the same day, he filed the following plea:--

'The defendant, by E. Walker, his attorney, comes and prays judgment of the said record herein filed, because he says that the plaintiffs first instituted their said action of replevin in the Circuit Court of Cook County, in the State of Illinois, which said court has exclusive original jurisdiction of said action, and caused the clerk of said State court to issue a summons against the said defendant and a writ of replevin, under which said last-named writ the property described in said writ and declaration was seized by the officer of said court and delivered to the said plaintiffs.

'That said writs were made returnable to the June Term of said court, A.D. 1877, at which said term the said defendant appeared and filed his plea to said declaration.

'The said defendant further shows that long after the filing of the said transcript of record in this court the said plaintiffs, to wit, at the May Term, A.D. 1878, filed in the said Circuit Court of Cook County their replication to the said defendant's plea, and at said term of said State court prosecuted their said action to a final hearing; and such proceedings were thereupon had in said action that afterwards, to wit, at said May Term, to wit, on the fifth day of June, A.D. 1878, the said defendant, by the consideration and judgment of the said Circuit Court of Cook County, recovered a judgment against the said plaintiffs for the return to him of the property described in said declaration and writ of replevin, being the same identical property described in the aforesaid transcript of record, and for his costs in said action, as by the record and proceedings thereof still remaining in said Circuit Court of Cook County more fully appear, which said judgment is in full force, unreversed and unsatisfied, and this the defendant is ready to verify by the record. Wherefore the said defendant prays judgment if the court here will take jurisdiction and cognizance of the action aforesaid.'

The plaintiffs filed a demurrer to this plea, and afterwards, on Nov. 21, 1878, the demurrer was argued. The minutes of the court state its judgment upon the demurrer as follows:--

'Now come the plaintiffs by Henry Crawford, Esq., their attorney, and the defendant by Edwin Walker, Esq., his attorney, and now comes on to be heard the demurrer of the plaintiffs to the plea to the jurisdiction herein, and after hearing the arguments of counsel the court sustains the demurrer, to which ruling of the court the defendant by his counsel excepts, and the defendant failing to make further answer herein, and electing to abide by his said plea, it is thereupon considered by the court that the plaintiffs have and retain possession of the goods and chattels described in the writ issued in this court,' &c.

This judgment Kern seeks to reverse in this court.

The following are his assignments of error:--

That the Circuit Court erred—

1. In overruling the motion made by the plaintiff in error on June 26, 1878, to dismiss the said cause.

2. In sustaining the demurrer to the special plea filed by the plaintiff in error on Nov. 12, 1878.

3. In rendering judgment against the plaintiff in error upon the demurrer.

4. The court had no jurisdiction over the subject-matter of the action.

The Circuit Court of Cook County and the Circuit Court of the United States both claimed jurisdiction of the case, and each rendered a final judgment,-the State court in favor of the plaintiff in error, and the United States court in favor of the defendants in error.

Most of the points raised upon the record will be solved by a settlement of the question, which court had jurisdiction of the case when said final judgments were rendered.

The jurisdiction was, of course, originally in the State court. It is unnecessary to decide whether the State court rightfully or wrongfully denied the first two petitions of the defendants in error for the removal of the cause. The petition for its removal, filed July 6, 1877, contained every averment required by law. It was filed at the proper time, and it was accompanied by a bond with good and sufficient surety, conditioned according to the statute.

According to the terms of the act of Congress it was the duty of the State court 'to accept said petition and bond and proceed no further in such suit.' Act of March 3, 1875, c. 137, sect. 3; 18 Stat., pt. 3, p. 470.

Notwithstanding the refusal of the State court to make an order for the removal of the cause, the defendants in error, within the time prescribed by the statute, filed a transcript of the record of the State court in the Circuit Court of the United States. This invested the latter court with full and complete jurisdiction of the case, for, in the language of the section just referred to, 'the said copy being entered as aforesaid in said Circuit Court of the United States, the cause should then proceed in the same manner as if it had been originally commenced in said Circuit Court.'

If the cause is removable and the statute for its removal has been complied with, no order of the State court for its removal is necessary to confer jurisdiction on the court of the United States, and no refusal of such an order can prevent that jurisdiction from attaching. Insurance Company v. Dunn, 19 Wall. 214.

It is, therefore, clear that when the defendants in error filed, July 27, 1877, in the Circuit Court of the United States a transcript of the record of the State court, the former acquired and the latter lost jurisdiction of the case.

The contention of the plaintiff in error seems to be, that an action of replevin, where the sheriff of a State court is the defendant, is not removable, because the sheriff, an officer of the State court, being in possession of the property, the subject-matter of the controversy, the Federal court is without legal authority or power by writs, process, or orders to wrest its possession from him.

There is no support either in the act of Congress for the removal of causes, nor in any case adjudged by this court, for this position.

The act of Congress makes no exception of causes where the subject-matter of the controversy is in possession of the State court. Under the Constitution and laws of the United States a citizen of the United States, party in a State court to a suit which falls within the terms of the statute for the removal of causes, has the right to have it removed to and heard by a United States court.

Taylor v. Carryl (20 How. 583), Freeman v. Howe (24 id. 450), and Buck v. Colbath (3 Wall. 334), relied on by the plaintiff in error, are not in point.

Those cases decide that property held by an officer of one court by virtue of process issued in a cause pending therein, cannot be taken from his possession by the officer of another court of concurrent jurisdiction, upon process issued in another case pending in the latter court.

But here there is but one case. It is brought in the State court. It falls within the terms of the act of Congress for the removal of causes. When the prerequisites for removal have been performed, the paramount law of the land says that the case shall be removed, and the case and the res both go to the Federal court. The fact that the State court, while the case was pending in it, had possession of the subject-matter of the controversy, cannot prevent the removal, and when the removal is accomplished, the State court is left without any case, authority, or process by which it can retain possession of the res. The suit and the subject-matter of the suit are both transferred to the Federal court by the same act of removal, or when a bond for the delivery of the property has been taken, as in this case, the bond as the representative of the property is transferred with the suit. There is no interference with the rightful jurisdiction of the State court, and no wresting from its possession of property which it has the right to retain.

If the contention of the plaintiff in error is that the State court, having seized property by virtue of a fieri facias issued on a judgment rendered by it, the Federal court cannot take such property from its possession by writ of replevin, or, in other words, that the replevin suit which was sought to be removed in this case, could not have been originally brought in the Federal court, the answer is that, upon the question of removal, it is entirely immaterial whether or not the suit, as an original action, could have been maintained in the Federal court. In short, no provision of the State law, no peculiarity in the nature of the litigation which would forbid the United States court from entertaining original jurisdiction, could prevent the removal, provided the case fell within the terms of the statute for the removal of casuses. Railway Company v. Whitton, 13 Wall. 270; Insurance Company v. Morse, 20 id. 445; Gaines v. Fuentes, 92 U.S. 10; Boom Company v. Patterson, 98 id. 403.

The United States court having acquired jurisdiction, and that State court lost it by the proper removal of the cause, has that State court been reinvested with jurisdiction by the facts stated in the plea to the jurisdiction filed by the defendant below, namely, that long after the removal of the cause to the United States court, the plaintiffs below filed their replication in the State court, and prosecuted their action therein to a final hearing? In other words, is the plea to the jurisdiction of the United States court, filed by the defendant below on Nov. 12, 1878, a good plea?

It has been expressly held by this court that when a case has been properly removed from a State into a United States court, and the State court still goes on to adjudicate the case, against the resistance of the party at whose instance the removal was made, such action on its part is a usurpation, and the fact that such a party has, after the removal, contested the suit, does not, after judgment against him, constitute a waiver on his part of the question of the jurisdiction of the State court to try the case. Insurance Company v. Dunn, 19 Wall. 214; Removal Cases, 100 U.S. 457; Railroad Company v. Mississippi, 102 id. 135.

These cases are directly in point. In the action of replevin the defendant, if he succeeds, recovers in effect the same judgment against the plaintiff as the plaintiff, in case he succeeds, recovers against the defendant. So that the plaintiffs, in contesting the suit in the State court after its removal, were seeking to protect themselves against a judgment in favor of the defendant for the return of the property in controversy, a judgment which was in fact entered against them.

Our conclusion, therefore, is that by the proceedings for the removal of this case jurisdiction over it was transferred to the United States Circuit Court, and the filing by the plaintiffs below of a replication in the State court, after such removal, and the prosecution of the action to a final hearing in that court, did not reinvest the State court with jurisdiction of the cause, nor amount to a waiver of any rights resulting to the plaintiffs from the removal.

This conclusion is strengthened by the fact that the plaintiffs constantly insisted, as the record shows, upon the jurisdiction of the United States court over the case, and even while the case was on final trial in the State court, procured the entry of an order in the United States court to the effect that, upon the filing of the transcript of the record of the State court in the United States court, the latter court acquired exclusive jurisdiction over the case.

After the filing in the United States Circuit Court, on July 27, 1877, of the record of the proceedings in the State court, the latter lost all jurisdiction over the case, and, being without jurisdiction, its subsequent proceedings and judgment were not, as some of the State courts have ruled, simply erroneous, but absolutely void. Gordon v. Longest, 16 Pet. 97; Insurance Company v. Dunn, 19 Wall. 214; Virginia v. Rives, 100 U.S. 313.

It only remains to consider the contention of the plaintiff in error that the court below should not have entered judgment against him after sustaining the demurrer to his plea to the jurisdiction filed Nov. 12, 1878, because there was still remaining his plea to the merits filed July 6, 1877, before the case was removed from the State court.

The facts disclosed by the record make it clear that there is no solid ground for this assignment to stand on.

The plea of Nov. 12, 1878, was a plea to the jurisdiction. The defendant was allowed to file it on special leave asked by him and given by the court.

The asking of leave to plead to the jurisdiction was in effect a withdrawal of the plea to the merits, for after a plea in bar the defendant cannot plead to the jurisdiction of the court; for by pleading in bar he submits to the jurisdiction. 1 Chitty, Pleading, 440, 441; Co. Lit. 303; Com. Dig., Abatement, C. ; Bacon, Abr., Abatement (A.).

The plea in bar being in effect withdrawn by the plea to the jurisdiction, when the demurrer to the latter was sustained the defendant was left without plea.

If the defendant had so desired, the judgment of the court would have been respondeat ouster. But he elected, as the record shows, to stand by his demurrer and declined to make any further answer. There was nothing then left for the court to do but to pronounce judgment against him, which was done.

There was no error in this. The suggestion that there should have been a trial upon the plea in bar appears to have been an afterthought.

There is no error in the record.

Judgment affirmed.

title: Kern v. Huidekoper/Opinion of the Court


text: Talk:Kern v. Huidekoper/Opinion of the Court


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Dietzsch v. Huidekoper

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Edwin Walker for the appellants.

Mr. Henry Crawford, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Dietzsch v. Huidekoper


text: Talk:Dietzsch v. Huidekoper

title: Talk:Dietzsch v. Huidekoper


text:
Dietzsch v. Huidekoper/Opinion of the Court

After the recovery of the judgment at law, on June 5, 1878, by Charles Kern, one of the appellants, in the Circuit Court for the County of Cook, in the action of replevin mentioned in Kern v. Huidekoper, supra, p. 485, notwithstanding the removal of the said cause to the Circuit Court of the United States for the Northern District of Illinois, the writ of retorno habendo was issued thereon, which the plaintiffs in the replevin suit refused to obey. Thereupon, on June 7, 1878, an action of debt upon the replevin bond given by them was begun in the Circuit Court of Cook County against Frederick W. Huidekoper, Thomas W. Shannon, and John Dennison, the principals, and A. B. Meeker and John B. Drake, the sureties on said bond.

The action was brought in the name of Emil Dietzsch, the coroner, for the use of Charles Kern, the sheriff, who was nominally interested only, the real interest in the litigation being in the judgment and execution creditors, the Bank of North America and John McCaffrey.

Thereupon Huidekoper, Shannon, and Dennison, on June 10, 1878, filed the bill in this case in the United States Circuit Court for the Northern District of Illinois, against Dietzsch and Kern, in which they prayed an injunction to restrain them, their attorneys, agents, &c., and the execution creditors represented by them, from prosecuting any suit upon said replevin bond against the principals or sureties therein, 'or in any manner whatever taking any action to enforce any liability or right upon said pretended judgment of return entered in said Circuit Court of Cook County or upon the said replevin bond.'

On July 1, 1878, a preliminary injunction was allowed restraining the defendants below from in any manner prosecuting said action upon the replevin bond, or in any manner enforcing said judgment of return.

After the filing of this bill the action on the replevin bond in the State court was dismissed as to all the defendants except John B. Drake.

On Oct. 20, 1879, the complainants below filed their supplemental bill, in which they alleged that on Oct. 1, 1879, on motion of William J. Hynes, an order was entered in the Circuit Court for Cook County in the said suit, brought in the name of Emil Dietzsch on said replevin bond, against complainants and their sureties, by which the Bank of North America and John McCaffrey were substituted for Dietzsch as parties plaintiff in said action, and an amended declaration was filed by them as such plaintiffs, and a rule was entered against Drake requiring him to plead to such amended declaration within twenty days.

The supplemental bill charged that the Bank of North America and John McCaffrey, and Edwin Walker, their attorney, had personal knowledge of the allowance and issue of said injunction, and that the judgment in favor of the Bank of North America was the property of Walker, and that the proceedings in said action of debt were in violation of the injunction of the court and taken for the purpose of evading its orders, and prayed that the Bank of North America, McCaffrey, Walker, and Hynes might be made parties defendant to the bill, and that the injunction allowed upon the original bill might be so enlarged as to include the said new defendants.

Thereupon the Bank of North America, McCaffrey, Walker, and Hynes appeared and filed their demurrer to the original and supplemental bills, alleging as grounds of demurrer that the court had no jurisdiction to enjoin proceedings in the Circuit Court of Cook County, Illinois, as prayed for in said original and supplemental bills.

The demurrer was overruled. The defendants who demurred, electing to stand by their demurrer, declined to plead or answer. Thereupon a decree pro confesso was taken against them, and a final decree was made against all the defendants, by which the preliminary injunction allowed in the case was made absolute and perpetual.

That decree is brought here by appeal.

We have already decided in Kern v. Huidekoper, supra, that the suit in replevin, instituted by Huidekoper and others against Kern in the Circuit Court for Cook County, was removable to the United States Circuit Court; that by the proceedings for that purpose it was effectually removed on July 27, 1877, to the Federal court, which after that date alone had jurisdiction thereof, and that all the subsequent proceedings in the cause in the State court were absolutely null and void.

Upon this state of facts, the only question for decision is, Could the court below enjoin the appellants from proceeding in the action at law, brought by them on the replevin bond in the Circuit Court for Cook County?

The action on the bond in that court was simply an attempt to enforce the judgment of that court in the replevin suit, rendered after its removal to the United States Circuit Court, and after the State court had lost all jurisdiction over the case. If no judgment had been rendered in the State court against the plaintiffs in the suit, no action could have been maintained upon the bond. The bond took the place of the property seized in replevin, and a judgment upon it was equivalent to an actual return of the replevied property. The suit upon the bond was, therefore, bout an attempt to enforce a pretended judgment of the State court, rendered in a case over which it had no jurisdiction, but which had been transferred to and decided by the United States Circuit Court, by a judgment in favor of the plaintiffs in replevin.

The bill in this case was, therefore, ancillary to the replevin suit, and was in substance a proceeding in the Federal court to enforce its own judgment by preventing the defeated party from wresting the replevied property from the plaintiffs in replevin, who, by the judgment of the court, were entitled to it, or what was in effect the same thing, preventing them from enforcing a bond for the return of the property to them.

A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a State court. Dietzsch, the original plaintiff in the action on the replevin bond, represented the real parties in interest, and he was a party to the action of replevin, which had been pending, and was finally determined in the United States Circuit Court. That court had jurisdiction of his person, and could enforce its judgment in the replevin suit against him, or those whom he represented, their agents and attorneys. The bill in this case was filed for that purpose and that only.

If the bill is not maintainable, the appellees would find themselves in precisely the same plight as if the judgment of the United States Circuit Court in the replevin suit had been against them, instead of for them. The judgment in their favor would settle nothing. Instead of terminating the strife between them and their adversaries, it would leave them under the necessity of engaging in a new conflict elsewhere. This would be contrary to the plainest principles of reason and justice.

As the bill in this case is filed for the purpose of giving to litigants on the law side of the court the substantial fruits of a judgment rendered in their favor, it is merely auxiliary to the suit at law, and the court has the right to enforce the judgment against the party defendant and those whom he represents, no matter how or when they may attempt to evade it or escape its effect, unless by a direct proceeding. These views are sustained by the case of French, Trustee, v. May (22 Wall. 250), between which and this case there is no substantial difference.

We think, therefore, that the demurrer to the bill was properly overruled.

Decree affirmed.


text: Talk:Dietzsch v. Huidekoper/Opinion of the Court


text:
County of Morgan v. Allen

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

The County Court of Morgan County, in the State of Illinois, at its December Term, 1856, in pursuance of authority conferred by statute (Private Laws Illinois, 1853, p. 53; id., 1854, p. 207), and in accordance with a vote of the people at an election previously held, entered upon its records a subscription, unconditional in form, of the sum of $50,000, payable in bonds of the county, to the capital stock of the Illinois River Railroad Company, a corporation created by the laws of Illinois, with power to construct a railroad from Jacksonville, in Morgan County, via the towns or cities of Virginia, Bath, Pekin, and Lacon, to La Salle, in La Salle County. At the same time, by an order of record, authority was given the county judge to act in regard to such subscription as might be necessary, according to the charter, rules, or by-laws of the company, to perfect the same, to represent the county in voting upon the stock, and to provide for the issuing and delivery of the bonds as they might be required.

By an act passed Jan. 29, 1857, the vote taken was declared to have been legally taken, and the county court was required to subscribe the stock and to issue bonds therefor. Shortly thereafter a subscription, unconditional in form, was made by the proper county officers on the books of the company. The bonds were not issued immediately, and application therefor was made by R. S. Thomas, the president of the company. In order to meet some objections urged against their immediate issue, that officer (upon his own responsibility, so far as the evidence discloses) filed with the county clerk a certificate stating that the part of the railroad north of the town of Virginia was then in process of construction and that the part between Jacksonville and Virginia was 'under contract to be completed by the 1st of December, 1858, and that it is provided in the contract for the construction of said road that the Morgan County bonds are to be expended for work done in Morgan County, and not elsewhere.' The county court, at its September Term, 1857, thereupon entered of record an order, which, after reciting, among other things, the execution of that certificate, and that the interest and advantage of the county would be promoted by the delivery of the bonds theretofore subscribed, directed 'that there be delivered to the Illinois River Railroad Company the amount of $50,000 of the bonds of this county of this date,' &c.; also, that the certificate of stock 'be deposited with the treasurer of the county for safe keeping,' &c.

The bonds were thereupon issued, and deposited by the county judge with Elliott & Brown, bankers, for the railroad company. The evidence is conflicting as to whether the bankers were instructed to hold them until the further order of the county court, or to deliver them to the company upon receiving the certificate of stock for the county. The records of the court indicate an absolute unconditional delivery; and the weight of the evidence supports such a delivery.

In 1859, the bonds still being in the custody of Elliott & Brown, the company gave Allen & McGrady, contractors, two orders for $2,000 each for work done by them outside of Morgan County, but payable on their face in Morgan County bonds. These were subsequently transferred for value to William Thomas.

Vail & Ladd, creditors of the Illinois River Railroad Company, having obtained against it judgments amounting in principal and interest to $7,008.10, and sued out executions which were returned nulla bona, instituted garnishee proceedings to obtain satisfaction of the judgments out of the bonds in the hands of Elliott & Brown. The latter thereupon filed a bill of interpleader in the Circuit Court of Morgan County, against Vail & Ladd, the Illinois River Railroad Company, the county of Morgan, Studwell, Hopkins, and Cobb (trustees in a mortgage executed Nov. 1, 1858, by the company to secure its bonds amounting to $1,020,000), R. S. Thomas (who held an acknowledged debt against the company of $16,502.24, payable out of any funds belonging to the company), and William Thomas, the holder of the two orders issued to Allen & McGrady.

By an interlocutory decree entered in that case, the bonds, after deducting $200 interest coupons for charges and solicitors' fees, were placed in the custody of Ayres & Co., to await the further order of the court. In that suit the county denied its liability upon the ground that no work had been done in Morgan County, and that by agreement between it and the company the latter was not entitled to the bonds except for work done by it in that county. The trustees named in the trust deed of 1858, in their answer, claimed that they were entitled to hold the bonds for the use and benefit of the Peoria, Pekin, and Jacksonville Railroad Company as the successor of the Illinois River Railroad Company, to be used by the former in the construction of the road in the county of Morgan, in accordance with the alleged agreement that they should be so used. Upon final hearing, the bills of all the parties interpleading were dismissed, but the court directed that the bonds remain in the custody of Ayres & Co. All the parties except the county of Morgan took an appeal to the Supreme Court, which held: First, That whether the bankers had notice or not of the certificate executed by R.S.Thomas, as president of the company, it showed an understanding, at least between the county and him, as to the use of the bonds for work to be done in Morgan County, and his claim, as a creditor, should not be allowed in violation of that understanding. Second, As to the claim of William Thomas, he was affected by the notice disclosed in the contract between Allen & McGrady, which provided for the payment of their claims by these bonds only for work done in Morgan County. Third, That the claims of Vail & Ladd stood upon an entirely different footing; that they were creditors of the company for ties furnished, and had no notice of the condition upon which the bonds were issued; that they only knew that the county had subscribed to the stock and issued them; that any agreement or understanding between the company and the county, of which they had no knowledge, and the effect of which would be to place the bonds beyond their reach as creditors, would be fraudulent as to them; that the county subscription and the absolute order of the county court directing the issue and delivery of the bonds may have induced them to give credit to the company; that while, as against the president and Allen & McGrady, who had notice of the specific purpose for which the bonds were to be used, the county might insist that the delivery was qualified, it could not do so as to those creditors; that, 'as to them, it cannot prove that the delivery was not as absolute as its records indicated; they had a right to regard the bonds as assets in the hands of the company.' Fourth, The trustees, Studwell, Hopkins, and Cobb, having failed to assign errors, the court did not consider the propriety of the decree as to them. Thomas et al. v. County of Morgan, 39 Ill. 496.

Upon the return of that cause to the inferior State court a decree was entered (by consent of the creditors, Vail & Ladd, and the county) by which the county obtained possession of its bonds of the nominal value of $17,832.18, with coupons attached, in consideration of its paying off the judgments of Vail & Ladd, amounting to the sum already stated. The coupons alone exceeded in amount and value the debts of those creditors.

A suit in equity subsequently instituted by William Thomas, as the assignee of the orders issued in favor of Allen & McGrady, raised the question as to whether he was not entitled to be paid out of the county bonds, inasmuch as the road had then been finally constructed in the county by the successors of the first company. It proceeded upon the ground that such construction, for all the purposes for which the stock was subscribed, was equivalent to a construction by the original company. He alleged in his bill that certain judgment creditors of the railroad company who had filed a bill in chancery in the Morgan Circuit Court, made as defendants thereto only the Illinois River Railroad Company, the county of Morgan, and Ayres & Co., for the purpose of subjecting to those judgments the county bonds left in the custody of Ayres & Co. Although the complainants knew he was interested in the disposition of the bonds; that by an agreement between those creditors and the county, which was carried into decree by a collusive arrangement, the county, by paying only $6,000 in cash and about $6,000 in bonds in full satisfaction of the claims of those creditors, had received from Ayres & Co. $32,500 in nominal value of its bonds, with coupons attached (the latter alone exceeding the amount of the debts thus paid off), and had cancelled the same. To the bill a demurrer was interposed by the county, which being sustained, the bill was dismissed. Thomas appealed to the Supreme Court of Illinois. The ease is reported as Thomas v. County of Morgan, 59 Ill. 479. The court in that case, speaking by Chief Justice Breese, said:--

title: County of Morgan v. Allen


text: Talk:County of Morgan v. Allen

title: Talk:County of Morgan v. Allen