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MARTIN, Chief Justice. The appellants prayed accordingly for a decree quieting their

a are husband and wife, and were plaintiffs title against each and all of said parties. below. They sought a decree in the lower The defendants filed a motion to dismiss court against the present appellees as de- the bill upon the claim, in part, that the issue fendants, to quiet title to certain real estate sought to be raised therein was manifestly situate within the District of Columbia. In res judicata. The motion was sustained, the their bill of complaint they alleged that in bill was dismissed, and the present appeal January, 1922, they purchased the property was taken. in question, each contributing a part of the We think the lower court was right. It purchase price, and that a conveyance there appeared that the appellants were defendof was duly made to them “in fee simple, as ants in the partition case brought in the Sujoint tenants.” They claimed that under this preme Court of the District by the purchaser, conveyance they held the property as tenants Henry T. Law, who claimed in the bill filed by the entirety, and accordingly that the es- by him therein to be a tenant in common with tate of neither was subject to sale upon ex- said Ruth R. Smith in the premises, and who ecution nor to partition. They alleged that demanded partition thereof, and that partinevertheless in February, 1923, the United tion was decreed accordingly and a sale of States marshal of the District of Columbia, the premises made thereunder. The court acting under the supposed authority of a possessed full jurisdiction to hear and dewrit of fieri facias issued under seal of the termine the issue thus presented, and the deSupreme Court of the District, based upon fendants in the case then had their day in a judgment rendered by that court against court to present whatever defenses they might said Claude R. Smith alone, undertook to and have against the cause set out by the plaintiff did sell his undivided interest in said lands; in his bill. It is plain that the plaintiff's that appellee Henry T. Law was the pur- claim to title was chief among these, and the chaser at said sale, and received a deed of decree in favor of the plaintiff upon that isconveyance from the marshal purporting to sue is conclusive upon all matters directly inconvey to him the undivided interest of volved therein, or such as could have been Claude R. Smith in said realty, to all of which then adjudicated, and that the decree is not proceedings the plaintiffs then and there duly open to collateral attack by the parties. Disobjected. They alleged, further, that in trict of Columbia v. Brewer, 32 App. D. C. March, 1923, the purchaser, Henry T. Law, 388; Nalle v. Oyster, 36 App. D. C. 36, "acting on the erroneous supposition that he aff'd 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. was a tenant in common" with said Ruth R. 1439; Carmody v. Simpson-Sullivan Co., , Smith in the realty, under the attempted 44 App. D. C. 39; Great Bear Spring Co., sale and conveyance thereof to him, filed his v. Bear Lithia Springs Co., 47 App. D. C. bill in equity in the Supreme Court of the 434; Southern Pacific Railroad Co. v. United District against them for a partition of the States, 168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. property, "and in due course of time obtained 355. a decree of this court for partition of said The contention of the appellants properly real estate," under which decree a sale there- amounts to no more than that the former of was made to the appellee Thomas A. Jame- decree upon the present issue was erroneous. son Company, and a deed of conveyance was Their remedy in that event was an appeal, . delivered to it. The plaintiffs contended that which was not taken. They cannot now in these proceedings were all absolutely void, a collateral case treat the former decree as and conveyed no title adverse to them, since absolutely null and void, while it still stands they had held their title to said realty as ten- of record unappealed and unreversed. ants by the entirety, as aforesaid, and the The decree of the lower court is affirmed, same was not subject to partition. They with costs.



10 F.(20) 653 POLING Y. JEFFORDS et al.

(this course would have preserved her right (Court of Appeals of District of Columbia. to have the action of the court in sustaining Submitted November 4, 1925. Decided the demurrer reviewed on appeal); or she December 7, 1925.)

could have elected to file an amended pleadNo. 4235.

ing. This course she pursued, and filed a

general traverse to defendant's plea by joinPleading 418(3)-Error in sustaining de- ing issue thereon. By adopting this course murrer to replication is waived by pleading she waived any error which the trial court Error, if any, in sustaining demurrer to rep

may have committed in sustaining the delication, is waived by pleading over and joining murrer. issue.

In United States v. Boyd, 5 How. 29, 12

L. Ed. 36, the court had under consideration Appeal from Supreme Court of the Dis

a case where a demurrer to a rejoinder had trict of Columbia.

been sustained by the court below, and the Action by Lula Virginia Poling against party, on leave, had filed an amended reTracy L. Jeffords, executor of the estate of joinder. The court held that it was not John S. Case, deceased, and another. Judg- called upon to rule upon the demurrer, since ment for defendants, and plaintiff appeals. the right to have that question determined Affirmed.

was waived by filing the amended rejoinder. I. Q. H. Alward and H. E. Davis, both The court said: “If the defendants had inof Washington, D. C., for appellant.

tended to have a review of that judgment E. C. Dutton, of Washington, D. C., for

on a writ of error, they should have refused appellees.

to amend the pleadings, and have permit

ted the judgment on the demurrer to stand.” Before MARTIN, Chief Justice, and

This rule was followed in Clearwater v. ROBB and VAN ORSDEL, Associate Jus- Meredith, 1 Wall

. 25, 17 L. Ed. 604, where tices.

the court had under consideration a question

identical to the one before us. The court VAN ORSDEL, Associate Justice. This is an action in replevin, brought by appel- have the decision of the court below on the

said: “But the plaintiff claims the right to lant, plaintiff below, to recover certain jew- sufficiency of his previous replications reelry and bonds held by defendant Jeffords, viewed here. This he cannot do. Each repas executor, and deposited with the Lincoln lication in this cause is complete in itself, National Bank. But one of the defendants, does not refer to and is not a part of what Jeffords, executor, is brought here by this

precedes it, and is new pleading. When the appeal.

To plaintiff's declaration, defendant in- plaintiff replied de novo, after a demurrer terposed the pleas of not guilty and the was sustained to his original replication, he statute of limitations. Plaintiff joined issue

waived any right he might have had to on defendant's pleas, but subsequently with question the correctness of the decision of drew her joinder, and to the second plea the court on the demurrer. In like manner filed a replication. Defendant demurred to he abandoned his second replication, when

he availed himself of the leave of the Court, the replication, and the demurrer was sus

and filed a third and last one." tained. Plaintiff amended her replication, and again a demurrer thereto was sustained.

In Nalle v. Oyster, 230 U. S. 165, 33 S. Plaintiff then pleaded over, by joining is- ct. 1043, 57 L. Ed. 1439, where the court sue on the plea of the statute of limitations, had under review the application of section and trial was had on the merits. No bill of 1533 of the District Code, Mr. Justice Pitexceptions appears in the record. The only ney, speaking for the court, said: “Section error assigned is in sustaining the demurrer 1533 of the District Code provides that in to plaintiff's replication.

all cases where a demurrer to a declaration The appeal can be disposed of on

or other pleading shall be overruled, the single question of practice, namely, can de- party demurring shall have the right to plead fendant now avail herself of the ruling of over, without waiving his demurrer. This is the court below in sustaining the demurrer obviously designed to modify the former rule to the replication? When the demurrer to that where, after demurrer overruled, leave the amended replication was sustained, two was given to plead, and the demurring parcourses were open to plaintiff: One, she ty pleaded to the pleading demurred to, he could have elected to stand upon her replica- waived the demurrer, and took it out of the tion and suffer judgment to go against her record so that it did not appear in the judg


ment roll.

The section has no cooperate with said nut to shift said membearing upon the case where a demurrer is ber.” sustained."

In a modern radial drill, the drill spindle In the case at bar, the demurrer was sus- is mounted on a heavy arm projecting horitained, and plaintiff, by joining issue on the zontally from the vertical post. The funcplea of limitations, abandoned her amended tioning of the drill is accomplished by movreplication, and is not now in position to ing this heavy arm up and down on the post, ask this court to rule upon the demurrer. through the agency of the large screw-enThis disposes of the appeal.

gaging nut which is affixed to the arm, so The judgment is affirmed, with costs. that the rotation causes the nut to travel

up and down through the full length of the screw. It is apparent that the wear on the threads of this nut is much greater than the

wear on the threads of the post. As this in re KLAUSMEYER.

arm is very heavy, sometimes weighing as (Court of Appeals of District of Columbia. much as a ton, when the threads of the nut Submitted November 11, 1925. Decided become sufficiently worn, there is danger December 7, 1925.)

that they will be stripped and permit the No. 1770.

arm to fall. The nut being embedded, there

was no way in which its threads might be inPatents Om 17-Elevating mechanism, having

nut formed to present a transverse section spected, except by dismantling the lifting of its threaded bore to permit examination to

screw. This danger and difficulty applidetermine wear, held to involve invention. cant sought to overcome. He solved the

Elevating mechanism, consisting of member problem by drilling a hole through the arm adapted be moved against opposition and wall of the nut, so that the hole apand a

secured said member, and formed to present to a transverse sec- proximately centers on threads of the nut, tion of its threaded bore to permit examina- thus exposing them to view. This is quite tion to determine extent of wear on threads, well illustrated in Figure No. 3, here reheld to involve invention rather than mere ex

produced: ercise of mechanical skill,

Fig. 3. Appeal from Decision of Commissioner of Patents.

Application by David C. Klausmeyer for patent. From a decision of the Commissioner of Patents, denying application, applicant appeals. Reversed, and claims awarded.

A. F. Nathan, of New York City, for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

to nut


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ROBB, Associate Justice. Appeal from a decision of the Patent Office, refusing the claims, 15 in number, of an application for patent. There is needless multiplication of claims. Claims 1, 2, 5, and 7 fully cover the device, and of those we here reproduce claim 5:

This hole enables the operator to deter5. A safety construction for elevating mine at a glance the extent of the wear on mechanism consisting of a member adapted the threads of the nut. to be moved against opposition; a nut se- The Patent Office rejected the claims on cured to said member and formed to present the patent to Metzger, No. 509,178, issued to view a transverse section of a portion of November 21, 1893, or over 30 years ago. its threaded bore; and a screw adapted to Metzger's device, as stated in his specifica

10 F.(20) 655 tion, was intended “to provide automatic E. T. Brandenburg, J. F. Brandenburg, lubrication without the employment of wick- and Lee B. Kemon, all of Washington, D. C., ing or other material.” The hole he pro- for appellant. vided was for that purpose, and that alone. G. W. Saywell, of Cleveland, Ohio, for In our judgment, it entirely fails to solve appellee. the problem with which applicant was con- Before MARTIN, Chief Justice, ROBB, fronted. A hole drilled toward the center of Associate Justice, and SMITH, Judge of the the screw would permit lubrication, but not United States Court of Customs Appeals. inspection of threads of the nut. Had the Metzger patent been at all suggestive of ap

ROBB, Associate Justice. Appeal from pellant's device, it is strange that skilled

a decision of an Assistant Commissioner of mechanics should have overlooked it for Patents in a trade-mark opposition promore than 30 years. Applicant has done ceeding, in which the decision of the Exammore than merely drill a hole in the nut. iner of Interferences was reversed and the He conceived the idea of drilling such a hole

opposition dismissed. as to permit inspection of threads of the

The opposer, appellant here, and its nut, and this, in our view, involved more predecessor, long prior to the adoption in than the exercise of mere mechanical skill. 1921 by the applicant, appellee here, of the

As an alternative, applicant suggests the trade mark “Pappoose” for use on salt, had cutting away of a portion of one end of the built up a very extensive business under the nut, so that its threads may be visible and

same mark in connection with the sale of varicertain of the claims cover this alternative

ous condiments, including pepper sauce, table structure. The decision is reversed, and

sauce, mustard, tomato catsup, cayenne pepclaims 1, 2, 5, and 7 are awarded the appli

per, whole and ground pepper, and the like. cant.

The Examiner of Interferences found that Reversed.

salt belongs to that class known generally as condiments; that "it is merely one of a

group including pepper, mustard, and spices, E. A. ZATARAIN & SONS, Inc., V. OHIO which are used for seasoning food." With SALT CO.

that postulate, his decision, of course, was (Court of Appeals of District of Columbia. against the right of registration by the newSubmitted November 11, 1925. Decided De

The decisions of this court, upon cember 7, 1925. Motion for Rehearing De- which he relied, fully sustain his ruling. See nied December 24, 1925.)

Walter Baker & Co. v. Harrison, 32 App. D. No. 1769.

C. 272; Simplex Elec. H. Co. v. Gold Car

H. & L. Co., 43 App. D. C. 28; AngloTrade-marks and trade-names and unfair com American I. L. Co. v. Gen. Elec. Co., 43

petition 45-Registration of trade-mark for use on various condiments held to pre- App. D. C. 385; Fishbeck Soap Co. v. clude registration of same mark for use on Kleeno Mfg. Co., 44 App. D. C. 6; Canton salt,

Culvert & Silo Co. v. Consol. Car-Heat. Co., Registration of trade-mark “Pappoose” for 44 App. D. C. 491; Gutta-Percha & Rubber

on condiments, including pepper sauce. Mfg. Co. v. Ajax Mfg. Co., 48 App. D. C. table sauce, mustard, catsup, cayenne pepper, and the like, held to preclude another's regis: 230; Macy & Co. v. N. Y. Grocery Co., 50 tration of same mark for use on salt.

App. D. C. 105, 267 F. 749; Cal. Pkg. Corp.

v. Price-Booker Mfg. Co., 52 App. D. C. 259, Appeal from Commissioner of Patents. 285 F. 993; Cal. Pkg. Corp. v. Halferty, 54

Proceeding for registration of trade-mark App. D. C. 88, 295 F. 229. by the Ohio Salt Company, opposed by E. The wide reputation established by the A. Zatarain & Sons, Inc. From a decision of opposer furnishes the only apparent excuse Commissioner of Patents, dismissing opposi- for the adoption of this mark by the applition and granting registration, opposer ap- cant. Decision reversed. peals. Reversed.




in re LOBDELL.

the substitution of wooden spokes, in view (Court of Appeals of District of Columbia.

of the teachings of the prior art, did not inSubmitted November 13, 1925. Decided De- volve invention. The decision is affirmed. cember 7, 1925. Petition for Rehearing De- Affirmed. nied December 24, 1925.)


No. 1771.

LOOSE-WILES BISCUIT CO. V., JOHNSON Patents Omo 21-Substitution of wooden spokes

EDUCATOR FOOD CO. for those of other material in steering wheel not patentable invention.

(Court of Appeals of District of Columbia,

submitted November 13, 1925. Decided DeSubstitution of wooden spokes for those

cember 7, 1925. Motion for Rehearing Deof other material in steering wheel for motor

nied December 19, 1925.) vehicles held not to involve invention.

No. 1773. Appeal from Commissioner of Patents.

Trade-marks and trade-names and unfair com

petition @m43—"Cookieland" held not descrip. In the matter of the application of Ed

tive, within meaning of Trade-mark Act. ward J. Lobdell for a patent. From a de

"Cookieland" held descriptive, within cision of the Commissioner of Patents, deny-' meaning of Trade-mark Act (Comp. St. 9485 et ing application, applicant appeals. Af- seq.), so to prevent its registration as firmed.

trade-mark for cookies and biscuits. C. S. Grindle and J. A. Watson, both Appeal from Commissioner of Patents. of Washington, D. C., for appellant. T. A. Hostetler, of Washington, D. C., Food Company for registration of trade

Proceeding by the Johnson Educator for Commissioner of Patents.

mark, opposed by the Loose-Wiles Biscuit Before MARTIN, Chief Justice, ROBB, Company. From a decision of the ComAssociate Justice, and SMITH, Judge of the missioner of Patents, granting registration, United States. Court of Customs Appeals. opposer appeals. Affirmed.

I. U. Townsend, Jr., of Boston, Mass., ROBB, Associate Justice. Appeal from A. D. Adams, of Washington, D. C., and a decision of the Patent Office refusing claims F. L. Emery, of Boston, Mass., for appellant. for a patent on an automobile steering Henry Calver, of Washington, D. C., for wheel. Claim 1, of the several claims, is appellee. sufficiently illustrative, and is here repro- Before MARTIN, Chief Justice, ROBB, duced :

Associate Justice, and SMITH, Judge of the “1. A steering wheel for motor vehicles United States Court of Customs Appeals. comprising a metal hub having a plurality of sockets arranged in substantially the same ROBB, Associate Justice. Appeal from plane, a wooden rim rounded in cross-section concurrent decisions of the Patent Office disthroughout and adapted to be gripped at any missing appellant's opposition to the registrapoint transversely by the hand of the op- tion by appellee of the word "Cookieland" erator, and wooden spokes having their in- as a trade-mark for cookies, crackers, cakes, ner ends mounted in said sockets of the hub and biscuits. and their outer ends rigidly secured to said Appellant does not use this mark as a rim."

trade-mark, but bases its opposition upon the Appellant has substituted for the spokes contention that the word is descriptive. We of the prior art wooden spokes, and, while agree with the Patent Office that "Cookiehis wheel undoubtedly is superior in some re- land” is not descriptive, within the meaning spects to the wheels of the prior art, we are of the Trade-mark Act (33 Stat. 724 [Comp. constrained to agree with the Assistant Com- St. § 9485 et seq.]), and hence that it is missioner that the advantages claimed for registrable to the appellee. Decision afthis wheel are inherent and universally known firmed. to reside in the material employed, and that Affirmed.

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