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EVANS V. CROWN GASOLINE & OIL CO.

BLAIR et al. v. EVANS et al.

(Circuit Court of Appeals, Third Circuit. November 1, 1917. On Motion for

Reargument, December 10, 1917.)

No. 2283.
APPEAL AND ERROB Em 266(2)—NECESSITY OF EXCEPTION-DECREE ON AUDI-
TOB’s REPORT.

Where, after exceptions to the first report of the auditor making dis-
tribution of funds realized by a receiver appointed in a creditors' suit
were sustained, appellants filed no exceptions to the auditor's amended
report and schedule, either before him or when the schedule was filed in
court, and a final decree directing distribution according to such schedule
was entered, an appeal from such decree, taken after distribution and on
the same day an order discharging the receiver was entered, presents
nothing for review.
Appeal from the District Court of the United States for the West-
ern District of Pennsylvania; Charles P. Orr, Judge.

Bill in equity by George M. Evans against the Crown Gasoline & Oil Company, in which the Potter Trust Company was appointed re

From the decree for distribution of assets, S. S. Blair and others appeal. Appeal dismissed.

R. E. Anderson and John A. Blair, both of Pittsburgh, Pa., for appellants.

ceiver.

Leonard K. Guiler, of Pittsburgh, Pa., for appellees.
Before BUFFINGTON, McPHERSON, and WOOLLEY, Cir-

cuit Judges.

receiver.

MCPHERSON, Circuit Judge. In the court below, this was a creditors' bill, and the appeal before us is by S. S. Blair and other bondholders from the decree distributing a fund in the hands of the

The fund was raised by selling the company's real estate, upon which certain bonds had been secured by mortgage, and one matter before the auditor appointed to distribute was an attack by the appellants upon the claim of George Evans, another bondholder; the ground of attack being that while Evans was a director of the company he had accepted bonds as collateral security for an antecedent debt at a time when he knew the company to be insolvent. The auditor sustained the objection and excluded the bonds. Evans filed exceptions to the

report on December 7, 1916, and renewed the exceptions a week later when the report was filed

in the District Court. On March 2 the Evans

Court filed an opinion reversing the auditor and holding that

was entitled to share on an equal footing with the other bondholders, and on March 6 sent the report back to be corrected. Thereupon the auditor prepared an amended schedule, but to this the appellants filed no exceptions, either before him or afterwards when the schedule was filed in court. Accordingly on May 12, 1917, the following final decree was entered:

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“And now, May 12, 1917, it appearing to the court that on March 6, 1917, an order of this court was filed and entered referring the auditor's report in the above-entitled case back to the auditor for the purpose of making distribution in accordance with the opinion of this court, and that more than sixty (60) days have elapsed since said order of court was filed and entered, and no appeal has been taken therefrom; and it further appearing to the court that on May 1, 1917, the auditor's amended schedule of distribution was filed, and that ten (10) days have elapsed since said amended schedule of distribution was filed, and no exceptions have been filed thereto, by reason whereof said report has been confirmed absolutely in accordance with the rules of this court, the Potter Title & Trust Company, receiver of the Crown Gasoline & Oil Company, is hereby ordered and directed to make distribution to the parties entitled thereto in accordance with said amended schedule of distribution.”

In accordance with this decree the receiver proceeded to distribute, and on June 27 was discharged by a formal order. On the same day the present appeal was taken from the decree of May 12, and we are now asked to say that the decree was wrong, and to make "the necessary orders

directing the appellee to make restitution to the appellants in the sum of $19.28 for each bond held by them.”

In our opinion the correctness of the decree is not properly before us, for the reasons therein recited, and for other reasons that are not disputed. No exceptions were filed to the amended schedule; it was not questioned either before the auditor or the court below; a decree has been entered confirming it absolutely in accordance with the rules of the District Court; the money has been paid to the parties therein specified, and in the amounts named; and the receiver has been discharged. In obedience to the well-established rules of orderly procedure in a court of first instance and in a court of review, nothing is presented now except the formal correctness of a final decree that comes before us without having been objected to in the court below, and in our opinion the appeal should be dismissed. The fund is gone, and the receiver is protected by the court's decree of May 12, as well as by the order of discharge; and of course, as long as the decree stands unreversed, no order of restitution can be made.

The appeal is dismissed.

On Motion for Reargument. PER CURIAM. The merits of this appeal were not overlooked, but as they seem to be in favor of the appellee we took the opportunity to call attention to the loose practice disclosed by the record, especially as looseness of practice is a good deal more frequent now than it used to be, and often hampers us in the proper disposal of business.

The motion is refused.

of a farm wagon a few feet in the rear, called to the child to “look

FELL BREWING CO. V. ADAMO et ux.
(Circuit Court of Appeals, Third Circuit. November 28, 1917.)

No. 2306,
1. APPEAL AND ERROR 1002_REVIEW— VERDICT.

A verdict on conflicting evidence is conclusive on appeal. 2. APPEAL AND ERROR 909(1)-REVIEW-FINDING.

In an action against a brewing company for the death of a small child, run over by the rear wheel of its wagon when he fell from a step between the front and rear wheels, the question whether the driver's motion directing the child to get off was so threatening as to amount to negligence must, where the only witness as to the accident, save the driver, illustrated the same, be, on appeal, treated as a jury question; it having

been so treated below. In Error to the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge.

Action by Antonio Adamo and wife against the Fell Brewing Company.

From a judgment for plaintiffs, defendant brings error. Affirmed.

Robert W. Archbald, of Scranton, Pa., and J. E. Brennan, of Carbondale, Pa., for plaintiff in error.

John 'Memolo and David J. Reedy, both of Scranton, Pa., for defendants in error.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

MCPHERSON, Circuit Judge. In this action the plaintiffs, who are alien subjects of the king of Italy, recovered damages from a Pennsylvania corporation for the death of their son, a child four years old.

At the trial, testimony was offered that tended to prove the folAbout half past one o'clock on September 11, 1914, the wagon, a heavy vehicle loaded with 75 cases of bottled beer and driven by a man

named Corby, was proceeding slowly in a southerly direction along one of the streets in Carbondale, and the boy was on the sidewalk not far from the wagon; he may have been observed by Corby, but in any event he followed the wagon along the sidewalk for a short distance, and then ran out into the roadway; Nelson, the driver

but the child either did not hear or did not heed the warning, and continued to run toward the company's wagon, and finally mounted a step or bar between the front and the hind wheels; while

on the step, Nelson called to Corby, “Look out, there is a boy trying to get on your wagon," whereupon Corby turned and looked at the boy, making a gesture of some kind with his hand, but did not ştop; the boy immediately fell off the step and was run over by the hind wheel, sustaining injuries from which he died almost at omeles; the wagon went forward perhaps 50 feet after Corby received Nelson's warning and saw the child on the step.

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lowing facts:

out" ;

he was

[1] Nelson was the only witness to the accident, and every important item of his testimony was denied by Corby, who declared that he did not see the child until after the injury, and that he heard no warning and made no gesture. But the jury accepted Nelson's account, and the verdict, if supported by submissible evidence, is conclusive on appeal.

[2] Only one point is in dispute: Was the judge warranted in allowing the jury to find that Corby's gesture was so threatening in character as to amount to negligence, considering the age of the child and the other circumstances? Barre v. Reading, etc., Ry., 155 Pa. 170, 26 Atl. 99; Satinsky v. Brewing Co., 187 Pa. 57, 40 Atl. 821; Brennan v. Merchant & Co., 205 Pa. 258, 54 Atl. 891; Hyman v. Tilton, 208 Pa. 641, 57 Atl. 1124; McCabe v. Kain, 250 Pa. 444, 95 Atl. 574; Di Meglio v. Railway, 249 Pa. 319, 94 Atl. 1095; Bucci v. Waterman, 25 R. I. 125, 54 Atl. 1059. The case lies within a narrow compass and is undoubtedly close, but the company has not convinced us that the trial judge was mistaken. When Nelson testified concerning Corby's gesture, he illustrated by appropriate action; and this, of course, was seen by the jury, although it could not be reproduced on the notes. We cannot know, therefore, what degree of threat or violence may have been indicated, and in the absence of this essential information we cannot decide that the gesture was not negligent in character. In Pa. R. R. v. Glas, 239 Fed. 258 (152 C. C. A. 244) we considered a similar question. There it was important to determine the position of a break or crack in an arch bar on a railway truck, and the printed record left the fact in doubt. But a witness had pointed out the position to the jury, and in the court's opinion Judge Woolley said:

“It does not appear in the record whether the crack was on the outside or the inside of the arch bar when in position upon the truck, and therefore the record does not show whether, upon inspection, it could be seen. The arch bar, however, was described to the jury, and the position of the crack was indicated to them by the witness who discovered it. In the course of his testimiony, he said:

“ 'Right where it came up like this (indicating), and then it went out over the box; it was cracked right in the end there, in the short bend.'

“Just how much was before the jury that is not before us with respect to the exposed or hidden location of the break, the record leaves in doubt, but that there was something before the jury that is not before us, there is no doubt. We must therefore assume, that the matter indicated to the jury, though not disclosed by the record, was such as to support the verdict. Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310, 91 Atl. 353."

These remarks are relevant in the present case, and support the conclusion we have reached.

The judgment is affirmed.

The second is that the Belgian patent bears a sufficient relation to

FIRESTONE TIRE & RUBBER CO. V. SEIBERLING.
(Circuit Court of Appeals, Sixth Circuit. November 6, 1917.)

No. 2954.
1. PATENTS 321-INFRINGEMENT-PRO FORMA DECREES— PRACTICE.

Pro forma interlocutory decrees by the trial court are not favored. 2. PATENTS Om324(5)—INFRINGEMENT-REVIEW_DISMISSAL

In a suit for infringement of patent, defendant, after argument and submission of an appeal from an interlocutory decree for complainant, set up the recent discovery of a Belgian patent as important, as bearing on the validity and scope of one of the patents in suit, and asked that it be permitted in some method to bring the patent into the record before decision. It appeared that defendant was not guilty of laches in discovering the patent, and that it was of such superficial resemblance to one in suit that, if it were excluded and the decree below affirmed, further litigation would be probable. Held, that there was no available pro cedure, unless the parties stipulate otherwise, to bring the patent into the case, except to dismiss the appeal without prejudice and remand the

case, with directions that it be reopened for additional proofs. 3. PATENTS Om324(6)—INFRINGEMENT—DISMISSAL OF APPEAL.

In such case, directions that the suit be reopened for additional proofs, and that, in the light of the original record and such proofs, it again be heard and decided, is not beyond the power of the Circuit Court of Ap

peals. In Equity. Bill by Frank A. Seiberling against the Firestone Tire & Rubber Company. From an interlocutory decree for complainant, defendant appeals. After remand, but before decision, defendant set up the recent discovery of a Belgian patent, said to be important as bearing on the validity and scope of one of the patents in suit, and on motion to reopen prayed permission to bring the patent into the secord before decision. Appeal ordered dismissed, unless within 15 days parties

by stipulation dispose of the matter of the newly discovered patent.

See, also, 234 Fed. 370; 235 Fed. 891, 149 C. C. A. 203.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit

PER CURIAM. The court below made the usual interlocutory decree for complainant in a patent case.

After the appeal had been argued and submitted to this court, but remained undecided, the appellant alleged the recent discovery of a Belgian patent, said to be important as bearing on the validity and scope of one of the patents in suit, and asked that it be permitted in some method to bring this patent into the record before the case was decided. We have reached

The first is that the delay in the discovery of the patent is so far accounted for that reopening should not be denied on the ground

Judges.

three conclusions:

of laches.

the controversy, so that the interests, both of the parties and of the

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