poration not subsequently ratified the action taken at the special board meeting.

In Smith v. Sinaloa Land & Fruit Co., 42 Utah, 445, 449, 132 P, 556, 557, the stockholders at a regularly held meeting on October 31, 1911, directed the board of directors to make an assessment on the stockholders of $4 per share. Four of the seven directors of the company attended a special board meeting held on November 1st, and made the assessment as directed. Two of the absent members of the board had advance notice of the board meeting, and the remaining member of the board was out of the state and could not be found, although the court held that reasonable diligence was employed in an effort to locate him. The opinion reads in part:

"These absent directors, on their return to Salt Lake, acquiesced in and ratified the action taken by the four members, and signed the defendant's record approving all that they had done in the premises. It is not claimed that the four members did not constitute a quorum, or could not legally transact business on behalf of the board. All in that respect claimed is that all the members were not legally notified' of the meeting, and for that reason the action of the board or dering the assessment, which had theretofore been specifically directed by the stockholders, was void. We think the contention without merit."

Whether the action of the absent directors was taken at a subsequent regularly held board meeting, or otherwise, does not appear; but the conclusion of the court was clearly right, without regard to the action of the absent directors. The majority of the board merely performed a ministerial duty, obeying a direction given by the stockholders in a matter as to which the directors had no discretion, and it is difficult to believe that the court would not have upheld the action of the majority of the board, if the absent directors had on their return made no effort of any sort to ratify the act of the majority.

The foregoing are the only reported cases that I have found in which there was, or may have been, a waiver of notice executed by a director in pais after a special meeting has been held. Doubtless there are other cases, but I have not found them. I see no way to avoid the conclusion that the resolution of March 11th was unauthorized. It was not only never validly ratified, but was, as has been said, at a legal board meeting on March 20th, expressly rescinded. Unless the defendant is estopped to rely upon the invalid

ity of the resolution of acceptance, the government cannot prevail.

[4] I can see no force at all in the government's contention that the defendant is estopped to assert the invalidity of the act done in its name on March 11th. The burden of proof rests on the government. 21 Corpus Juris, p. 1250, § 267. In the same volume (page 1133, § 134) it is said: "It is essential to an equitable estoppel that the person asserting the estoppel shall have done or omitted some act or changed his position in reliance upon the representations or conduct of the person sought to be estopped." And again (pages 1135-1137) it is said: "In order to create an estoppel in pais, the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect. As otherwise expressed, where no available right is parted with, and no injury suffered, there can be no estoppel in pais."

[5] The appropriation of funds necessary to make good the guaranty of the government was made in the Transportation Act. See section 209, subsec. (g), 41 Stat. 466. And in the same section it is provided that the Interstate Commerce Commission will, after the expiration of the guaranty period, ascertain and certify to the Secretary of the Treasury the amounts necessary. In other words, the appropriation was made on February 28, 1920, and no calculation of the sums necessary to make good any guaranty could be made until after September 1, 1920. How the Interstate Commerce Commission could, between March 13 (Plaintiff's Exhibit 3), and March 24, 1920 (Defendant's Exhibit C), have changed the government's position in reliance upon the resolution of March 11th is difficult to conceive. But, if there was any change, there is no proof of it.

It is, of course, true that, as the resolution of March 11th was unauthorized, and was never given validity by subsequent ratification, it never created any valid obligation on the government. At the utmost there was, between March 13th and March 23d, an appearance only of a possible obligation on the part of the government; and if in fact a deficit of income of the defendant during the guaranty period had occurred, the presumption of official right doing affords strong reason for saying that the government was never for a moment in danger of being held liable. Presumably the Interstate Commerce Commission would not certify that any carrier had a right to money under section

of deceased, as party plaintiff. In due course this application was heard by the court, and on April 20, 1925, an order was entered denying the application and dismissing the suit, On October 5, 1925, a motion by said applicant to vacate said order of dismissal was submitted to the court and denied. The judgment of dismissal has not been reversed or vacated. On November 30, 1925, the present applicants, 21 in number, filed their motion to be substituted as parties plaintiff, and asking leave to file their amended declaration in ejectment. This motion is now before the court for determination.

[1] It is apparent that, unless the judgment of dismissal entered herein on April 20, 1925,

CO. et al.

(District Court, N. D. Illinois, E. D.
August 9, 1926.)

1. Dismissal and nonsuit 81(3).

Power of court to vacate or modify order dismissing suit ceases on expiration of term.

2. Judgment 12, 486(2)-Under law of Illinois, judgment dismissing action after death of plaintiff held not void, or subject to collateral attack, but voidable only.

By the weight of authority and under the law of Illinois, as established by decision of its Supreme Court, where a court has acquired jurisdiction of the subject-matter and the person during the lifetime of a party, a judgment rendered for or against him after his death, though erroneous and liable to be set aside, is

not void or subject to collateral attack, and the rule applies to a judgment dismissing an action

after death of the plaintiff.

At Law.

Action by George W. Streeter against the Chicago Title & Trust Company and others. On motion for substitution of applicants as plaintiffs, after death of original plaintiff and dismissal of the action, and for leave to file amended declaration. Denied.

Arthur H. Jones, of Robinson, Ill., and Everett G. Ballard, of Chicago, Ill., for applicants.

Sherman C. Spitzer and Thomas J. Hoban, both of Chicago, Ill., for defendants.

LINDLEY, District Judge. Plaintiff, George W. Streeter, filed a suit in ejectment and trespass, and for the recovery of mesne profits, on September 4, 1920. Approximately 60 of some 600 defendants were served with process, appeared, and demurred to the declaration. Plaintiff died intestate January 21, 1921. On December 31, 1924, Elma Lockwood Streeter appeared by her attorneys, suggesting the death of the plaintiff and applying for substitution of herself, as widow

cause pending before the court, for under numerous and uniform holdings in all jurisdictions the power of the court to vacate or modify this dismissal order ceased upon expiration of the April, 1925, term; that is, on May 2, 1925. This proposition is so well settled as to be elementary. See Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 372, 65 N. E. 636; Meyer v. I. L. Lumber Co., 203 Ill. App. 301; Bronson v. Schulten, 104 U. S. 410, 415, 416, 26 L. Ed. 797; United States v. Mayer, 235 U. S. 55, 56, 57, 35 S. Ct. 16, 59 L. Ed. 129.

[2] It is most material, therefore, at the outset, to determine the character of the previous judgment, for, remaining in full force, unless void, it has disposed of all pending litigation. A judgment rendered for or against a party after his death, according to numerous decisions, is utterly void, and as such subject to collateral attack. But the great preponderance of authority is to the effect that, where the court has acquired jurisdiction of the subject-matter and the person during the lifetime of a party, a judgment rendered for or against him after his death, although erroneous and liable to be set aside, is not void or open to collateral attack. See Freeman on Judgments (5th Ed. 1925) vol. 1, § 406; 33 C. J. 1107; Black on Judgments, vol. 1, § 200. The rule in Illinois is settled in the case of Claflin v. Dunne, 129 Ill. 241, 21 N. E. 834, 16 Am. St. Rep. 263. There, after the death of one of the defendants, judgment was entered. After the expiration of the term the executor of the deceased defendant moved to vacate the judgment. The court held the judgment voidable, but not void, saying:

"The action was commenced while Claflin was alive. He appeared in court and pleaded to the action. The court thus had jurisdiction of the subject-matter and of the person, and the question arises whether, after the fil

ing of the plea, the death of Claflin, without notice of the death being brought to the attention of the court, deprived the court of jurisdiction to render a judgment in the cause. The question is one not free from difficulty, and one, too, upon which the authorities are not harmonious. Freeman on Judgments, § 140, says: 'If jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequently to his death is not void.' In section 153 the author says: 'Judgments for or against deceased persons are not generally regarded as void on that account, and while the

court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upon the record, or by writ of error coram nobis, if the fact must be shown aliunde.' The same doctrine has been announced by the Supreme Court of Pennsylvania. Warder v. Tainter, 4 Watts, 278; Yople [Yaple] v. Titus, 41 Pa. 203, [80 Am. Dec. 604]. In the last case it is said: 'Now it would seem to be well established that, in civil proceedings against a person, his death does not so completely take away the jurisdiction of a court which has once attached as to render void a judgment subsequently given against him. The judgment is reversible on error, if the fact and time of death appear in the record, or in coram nobis, if the fact must be shown aliunde; but it is not void.' See, also, Coleman v. McAnulty, 16 Mo. 173 [57 Am. Dec. 229]; Spalding v. Wathen, 7 Bush [Ky.] 662; Reed v. Holmes, 127 Mass. 326; Swasey v. Autram [Antram] 24 Ohio St. 87."

See, to the same effect, cases of Stoetzell v. Fullerton, 44 Ill. 108; Danforth v. Danforth, 111 Ill. 236; Bushnell v. Cooper, 212 Ill. App. 503; Schaeffer v. Potzel, 238 Ill. App. 335; Larimer v. Snell, 181 Ill. App. 50; Gage v. Chicago Title & Trust Co., 303 Ill. 569, 136 N. E. 483.

contrary rule announced in the case of Life Association v. Fassett, 102 Ill. 315. There the court announced that, in the absence of any statutory provision on the subject, a judgment against a dead person, either natural or artificial, is absolutely void, and the fact that service may have been obtained, or the suit commenced before the death of the party, makes no difference. The effect of this decision, however, is completely nullified by the decision of the court in the later case of Claflin v. Dunne, supra. There the court, in discussing the earlier case, said:

"Reference has, however, been made to Life Association of America v. Fassett, 102 Ill. 315, as a case holding that a judgment against a deceased person is void. It is said in that case, in plain language, that a judgment rendered against a deceased person is void; but, upon an examination of the facts there involved, it will be found that no such question was presented in that record. Whether a judgment against a deceased person was void or voidable did not arise in that case, and whatever may have been said upon that branch of the case is obiter dictum, and binding upon no one. As said before, there are authorities holding that a judgment rendered against a deceased person is void, but we think the weight of authority and the reason of the rule is that such a judgment is not void, but voidable."

The doctrine of the later case is expressly approved in a number of Illinois cases above cited, and notably in Mitchell v. King, 187 Ill. 452, at page 462, 55 N. E. 637, 58 N. E. 310, and in Pyatt v. Riley, 252 Ill. 36, at page 41, 96 N. E. 570. The court is mandatorily impelled to the conclusion that, notwithstanding the death of Streeter, this court on April 20, 1925, had the right to dispose of the pending case; that its action in so doing, even though it may have been erroneous, was not void; and that the judgment entered can be avoided only by direct attack in a proper proceeding brought for that purpose.

Whether the applicants may have a review of said judgment of April 20, 1925, by writ of error, by motion in the nature of writ of error coram nobis, or otherwise, is a question not now decided, as no such proceeding is now submitted to the court.

v.

TUTTLE, District Judge. The Walker patent, No. 1,234,984, in suit, has to do with the final operation in concrete road building. The patent has nothing to do with the machines used, or the methods used, in preparing the concrete for the road, has nothing to do with dumping the concrete in its position along the roadway, and has nothing to do, speaking in a large and general way, with shaping the particular form of the surface of the concrete. That is all done prior to the use of this patented device.

With the old manner of mixing concrete, dumping it in the road, leveling off, and then tamping, they used various means and methods of getting it into the shape they wanted, crowning it as they wanted it crowned, and tilting it in the way they wanted it tilted, so that an automobile, in going on it in a tangent, would hold on the curve of the road.

This patented device was designed, and was useful, for finally finishing the surface of the road before the cement had set and got hard, and has really to do with very small elevations and unevennesses of the surface, and not with the shape, generally speaking, of the surface. Previously this had been done most successfully probably with the hand trowel, and various things had been tried, hoping to

333

save time and do a better job than the trowel would do in the hand of the workman. Nothing had been discovered that would do a better job than the trowel, until Walker produced the patented invention in suit, and brought in use the flexible belt or strap to be dragged across the surface of the road. It had never been used by any one so far as this record shows; no one had ever thought of such a thing, or heard of such a thing, as a flexible strap or belt, to drag back and forth in a reciprocating movement across the surface of the road, as the very last step in the finishing of the road. The road-making art is one of the great arts of the age in which we live. The Romans built enduring roads, but we had not been building enduring and good roads until we got automobiles. It is one of the essentials of the age, and it is one of the great things of the age in which we live—the building of good roads all over this country.

Now this patent goes away beyond what can be called the work of a skilled mechanic. We have had a lot of skillful mechanics building roads, and we have had a lot of engineers, and skillful engineers, building roads, and we were fussing around with labor to do the last work by hand; and by hand I mean the trowel finishing of the surface, and using other things that did not leave the work in as good shape as this simple device of the patent in suit. It is simple as one thinks of it; but that is just what defines an invention, in my judgment. It is not these great, complex machines that necessarily disclose patentability and ingenuity. The draftsman, familiar with the strength of materials, and mechanics, can build very large machines, and put a lot of mechanical elements and movements into them, making them expensive; but what we really intend by the patent law is to reward by the grant of a monopoly the bringing forth of something that can be used to our advantage, which had not been thought of before. It makes the world a better place in which to live, as the result of what they have done. Here is a thing, simple, not difficult to make, but nobody thought about it; they had not done it before.

[1] Of course, the material had been in existence; if that is to defeat a patent, then there would not be any more patents, because all materials are old. This belt itself was old. I saw them on the old threshing machines, connecting the engine with the separator, half a century ago. We could have cut a piece out of one of those belts, and made one of these belts; but we did not think about it. These belts were in common use. There would have been no difficulty in getting one of these

straps, no difficulty in dragging it in a reciprocating movement across the roadbed, which was to be finished off, but nobody thought of it. Hobbs v. Beach, 180 U. S. 383, 21 S. Ct. 409, 45 L. Ed. 586. It was absolutely new with this art; nothing anticipates it, and the results accomplished by it measure up fully and easily to the standard required for a patent. Because one could go out and find materials existing before, because one could find that straps had been used with belts, and had been used for different purposes, does not spell the defeat of this patent. You may say for Kelly's strap that it scrapes off the surface of a painted article; but the use is not at all like this. It does not anticipate this patent, any more than the belt of the threshing machine for transmitting power. No one, in the prior uses of a belt, had thought of its application to road building, and built one that was designed for, adapted to, or intended for road surfacing. Topliff v. Topliff, 145 U. S. 156, 12 S. Ct. 825, 36 L. Ed. 658. Such uses of straps for nonanalogous purposes are not anticipations. Application of Eiermann, 287 F. 1016, 53 App. D. C. 39; Fitchburg Duck Mills v. Barrell, 214 F. 778, 131 C. C. A. 189; Barry v. Harpoon Castor Mfg. Co., 209 F. 207, 126 C. C. A. 301.

So, as to the validity of this patent, it seems to me very plain that we have a good patent, and I hold both claims valid.

[2] Now we come to the question of infringe ment. The patent is not limited to the use by hand. The patentee describes it in that way because, at the time he took out his patent, the road machinery art had not advanced as far as it has today. We come to the defendant's structure. There are three instrumentalities and three operations: (1) The strike-off board, which levels off the concrete that has been placed upon the surface of the road, this strike-off giving the surface of the road the form which they want it to have; work which previously had been done by hand, now done by machinery. (2) A tamping operation, not only to get the road solid, but undoubtedly to work out of it the excess of water. (3) The belt operation, the final finishing stroke. The operator, with defendants' very efficient machine, does not have as hard a job to do as in earlier days, but every bit of the work of the belt of the defendants' machine was done by the patented hand belt.

There is nothing that the defendants' belt does that was not done by the hand belt. Defendants' belt on the machine does not do so much, because it is not necessary to do so much, and, of course, not being necessary to

do so much, it is not necessary to make it so heavy. They naturally change the tool to fit the work. That is the work of a skilled mechanic. No one has pointed out anything done by this belt of the defendants that was not done by the patent in suit. Defendants use this belt of the patent in suit, and they get results from it, or they would not use it; and those results are results accomplished by the patent in suit, and that is infringement. Defendants do not need all the things that the plaintiffs' belt was designed to do, and would do, and they do not build it so that it will do all the things, simply because they do not need all the things. That does not escapeinfringement. If a person has a patent to do certain things and accomplish certain results, and if I do not need to accomplish those results fully, but only partially, and I take his machine to accomplish a part of the results, I infringe. Milner Seating Co. v. Yesbrea, 133 F. 916, 67 C. C. A. 210 (C. C. A. 6); Jay v. Ireland & Matthews Mfg. Co. (D. C.) 280 F. 166; Kawneer Mfg. Co. v. Detroit Showcase Co. (D. C.) 240 F. 737; Penfield v. Chambers Bros. Co. (C. C. A. 6) 92 F. 630, 34 C. C. A. 579; King Ax Co. v. Hubbard (C. C. A. 6) 97 F. 795, 38 C. C. A. 423; Murray v. Detroit Wire Spring Co. (C. C. A. 6) 206 F. 465, 124 C. C. A. 371.

[3] Take the first claim of the patent in suit: It reads directly on the defendants' structure, "a road-surfacing strap"; there is no question that it is a "strap," and there is no question that it is a "road-surfacing strap, having provision at the ends thereof, so that said strap may be manipulated upon the surface of the road." They not only have a strap for manipulating, but they do manipulate. In the patent the "provision at the ends thereof" is arranged for manipulation by hand, while in defendants' structure the provision is for manipulation by machinery.

We pass to claim 2: "A road-surfacing device comprising a flat, pliable strap." There is no question that it is a "strap"; it is "pliable," and it is "flat." The fact that the front edge is upturned does not relieve it from being flat, within the meaning of this patent. It is the natural thing to do to turn up the front edge of the belt. It has a slow forward movement, and at the same time a reciprocating movement laterally of the general direction of the road. Even as to that feature, the defendants' device is not original. Walker, in the patent in suit, recognized that very feature, and disclosed in his Figure 4the upturned forward edge of the strap. The real merit in the patent was in the belt, which could be manipulated and reciprocated across