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10 F.(2d) 653

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(this course would have preserved her right to have the action of the court in sustaining the demurrer reviewed on appeal); or she could have elected to file an amended pleading. This course she pursued, and filed a general traverse to defendant's plea by joining issue thereon. By adopting this course she waived any error which the trial court may have committed in sustaining the demurrer.

In United States v. Boyd, 5 How. 29, 12 L. Ed. 36, the court had under consideration a case where a demurrer to a rejoinder had been sustained by the court below, and the party, on leave, had filed an amended rejoinder. The court held that it was not called upon to rule upon the demurrer, since the right to have that question determined. was waived by filing the amended rejoinder.

Action by Lula Virginia Poling against Tracy L. Jeffords, executor of the estate of John S. Case, deceased, and another. Judgment for defendants, and plaintiff appeals. Affirmed. 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 on a writ of error, they should have refused to amend the pleadings, and have permitted the judgment on the demurrer to stand."

E. C. Dutton, of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice. This is an action in replevin, brought by appellant, plaintiff below, to recover certain jewelry and bonds held by defendant Jeffords, as executor, and deposited with the Lincoln National Bank. But one of the defendants, Jeffords, executor, is brought here by this

appeal.

To plaintiff's declaration, defendant interposed the pleas of not guilty and the statute of limitations. Plaintiff joined issue on defendant's pleas, but subsequently withdrew her joinder, and to the second plea filed a replication. Defendant demurred to the replication, and the demurrer was sustained.

Plaintiff amended her replication, and again a demurrer thereto was sustained. Plaintiff then pleaded over, by joining issue on the plea of the statute of limitations, and trial was had on the merits. No bill of exceptions appears in the record. The only error assigned is in sustaining the demurrer to plaintiff's replication.

The appeal can be disposed of on a single question of practice, namely, can defendant now avail herself of the ruling of the court below in sustaining the demurrer to the replication? When the demurrer to the amended replication was sustained, two courses were open to plaintiff: One, she could have elected to stand upon her replication and suffer judgment to go against her

This rule was followed in Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604, where the court had under consideration a question identical to the one before us. The court have the decision of the court below on the said: "But the plaintiff claims the right to sufficiency of his previous replications reviewed here. This he cannot do. Each replication in this cause is complete in itself, does not refer to and is not a part of what precedes it, and is new pleading. When the plaintiff replied de novo, after a demurrer was sustained to his original replication, he waived any right he might have had to question the correctness of the decision of the court on the demurrer. In like manner he abandoned his second replication, when he availed himself of the leave of the Court, and filed a third and last one."

In Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439, where the court had under review the application of section 1533 of the District Code, Mr. Justice Pitney, speaking for the court, said: "Section 1533 of the District Code provides that in all cases where a demurrer to a declaration or other pleading shall be overruled, the party demurring shall have the right to plead over, without waiving his demurrer. This is obviously designed to modify the former rule that where, after demurrer overruled, leave was given to plead, and the demurring party pleaded to the pleading demurred to, he waived the demurrer, and took it out of the record so that it did not appear in the judg

ment roll. The section has no bearing upon the case where a demurrer is sustained."

In the case at bar, the demurrer was sustained, and plaintiff, by joining issue on the plea of limitations, abandoned her amended replication, and is not now in position to ask this court to rule upon the demurrer. This disposes of the appeal.

The judgment is affirmed, with costs.

In re KLAUSMEYER.

(Court of Appeals of District of Columbia. Submitted November 11, 1925. Decided December 7, 1925.)

No. 1770.

Patents 17-Elevating mechanism, having

nut formed to present a transverse section of its threaded bore to permit examination to determine wear, held to involve invention.

Elevating mechanism, consisting of member adapted to be moved against opposition and a nut secured to said member, and formed to present to view a transverse section of its threaded bore to permit examination to determine extent of wear on threads, held to involve invention rather than mere exercise of mechanical skill.

Appeal from Decision of Commissioner of Patents.

cooperate with said nut to shift said member."

In a modern radial drill, the drill spindle is mounted on a heavy arm projecting horizontally from the vertical post. The functioning of the drill is accomplished by moving this heavy arm up and down on the post, through the agency of the large screw-engaging nut which is affixed to the arm, so 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 arm is very heavy, sometimes weighing as much as a ton, when the threads of the nut become sufficiently worn, there is danger that they will be stripped and permit the arm to fall. The nut being embedded, there was no way in which its threads might be inspected, except by dismantling the lifting screw. This danger and difficulty applicant sought to overcome. He solved the problem by drilling a hole through the arm and wall of the nut, so that the hole approximately centers on threads of the nut, thus exposing them to view. This is quite well illustrated in Figure No. 3, here reproduced: Fig.3.

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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.

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:

"5. A safety construction for elevating mechanism consisting of a member adapted to be moved against opposition; a nut secured to said member and formed to present to view a transverse section of a portion of its threaded bore; and a screw adapted to

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This hole enables the operator to determine at a glance the extent of the wear on the threads of the nut.

The Patent Office rejected the claims on the patent to Metzger, No. 509,178, issued November 21, 1893, or over 30 years ago. Metzger's device, as stated in his specifica

10 F.(2d) 655

tion, was intended "to provide automatic lubrication without the employment of wicking or other material." The hole he provided was for that purpose, and that alone. In our judgment, it entirely fails to solve the problem with which applicant was confronted. A hole drilled toward the center of the screw would permit lubrication, but not inspection of threads of the nut. Had the Metzger patent been at all suggestive of appellant's device, it is strange that skilled mechanics should have overlooked it for more than 30 years. Applicant has done more than merely drill a hole in the nut. He conceived the idea of drilling such a hole as to permit inspection of threads of the nut, and this, in our view, involved more than the exercise of mere mechanical skill. As an alternative, applicant suggests the cutting away of a portion of one end of the nut, so that its threads may be visible and certain of the claims cover this alternative structure. The decision is reversed, and claims 1, 2, 5, and 7 are awarded the appli

cant.

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E. T. Brandenburg, J. F. Brandenburg, and Lee B. Kemon, all of Washington, D. C., for appellant.

G. W. Saywell, of Cleveland, Ohio, for appellee.

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

a

Appeal from

ROBB, Associate Justice. decision of an Assistant Commissioner of Patents in a trade-mark opposition proceeding, in which the decision of the Examiner of Interferences was reversed and the opposition dismissed.

The opposer, appellant here, and its predecessor, long prior to the adoption in 1921 by the applicant, appellee here, of the trade-mark "Pappoose" for use on salt, had built up a very extensive business under the

same mark in connection with the sale of various condiments, including pepper sauce, table sauce, mustard, tomato catsup, cayenne pepper, whole and ground pepper, and the like.

The Examiner of Interferences found that salt belongs to that class known generally as condiments; that "it is merely one of a group including pepper, mustard, and spices, which are used for seasoning food." With that postulate, his decision, of course, was against the right of registration by the newcomer. The decisions of this court, upon which he relied, fully sustain his ruling. See Walter Baker & Co. v. Harrison, 32 App. D. C. 272; Simplex Elec. H. Co. v. Gold Car H. & L. Co., 43 App. D. C. 28; AngloAmerican I. L. Co. v. Gen. Elec. Co., 43 App. D. C. 385; Fishbeck Soap Co. v. Kleeno Mfg. Co., 44 App. D. C. 6; Canton Culvert & Silo Co. v. Consol. Car-Heat. Co., 44 App. D. C. 491; Gutta-Percha & Rubber Mfg. Co. v. Ajax Mfg. Co., 48 App. D. C. 230; Macy & Co. v. N. Y. Grocery Co., 50 App. D. C. 105, 267 F. 749; Cal. Pkg. Corp. v. Price-Booker Mfg. Co., 52 App. D. C. 259, 285 F. 993; Cal. Pkg. Corp. v. Halferty, 54 App. D. C. 88, 295 F. 229.

The wide reputation established by the opposer furnishes the only apparent excuse for the adoption of this mark by the applicant. Decision reversed.

Reversed.

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C. S. Grindle and J. A. Watson, both of Washington, D. C., for appellant.

the substitution of wooden spokes, in view of the teachings of the prior art, did not involve invention. The decision is affirmed. Affirmed.

LOOSE-WILES BISCUIT CO. v.,JOHNSON EDUCATOR FOOD CO.

(Court of Appeals of District of Columbia, submitted November 13, 1925. Decided December 7, 1925. Motion for Rehearing Denied December 19, 1925.)

No. 1773.

Trade-marks and trade-names and unfair competition 43-"Cookieland" held not descriptive, within meaning of Trade-mark Act.

"Cookieland" held not descriptive, within meaning of Trade-mark Act (Comp. St. 9485 et seq.), so as to prevent its registration as

trade-mark for cookies and biscuits.

Appeal from Commissioner of Patents. Proceeding by the Johnson Educator

T. A. Hostetler, of Washington, D. C., Food Company for registration of trade

for Commissioner of Patents.

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

ROBB, Associate Justice. Appeal from a decision of the Patent Office refusing claims for a patent on an automobile steering wheel. Claim 1, of the several claims, is sufficiently illustrative, and is here reproduced:

"1. A steering wheel for motor vehicles comprising a metal hub having a plurality of sockets arranged in substantially the same plane, a wooden rim rounded in cross-section throughout and adapted to be gripped at any point transversely by the hand of the operator, and wooden spokes having their inner ends mounted in said sockets of the hub and their outer ends rigidly secured to said rim."

Appellant has substituted for the spokes of the prior art wooden spokes, and, while his wheel undoubtedly is superior in some respects to the wheels of the prior art, we are constrained to agree with the Assistant Commissioner that the advantages claimed for this wheel are inherent and universally known to reside in the material employed, and that

mark, opposed by the Loose-Wiles Biscuit Company. From a decision of the Commissioner of Patents, granting registration, opposer appeals. Affirmed.

I. U. Townsend, Jr., of Boston, Mass., A. D. Adams, of Washington, D. C., and F. L. Emery, of Boston, Mass., for appellant. Henry Calver, of Washington, D. C., for appellee.

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

ROBB, Associate Justice. Appeal from concurrent decisions of the Patent Office dismissing appellant's opposition to the registration by appellee of the word "Cookieland" as a trade-mark for cookies, crackers, cakes, and biscuits.

Appellant does not use this mark as a trade-mark, but bases its opposition upon the contention that the word is descriptive. We agree with the Patent Office that "Cookieland" is not descriptive, within the meaning of the Trade-mark Act (33 Stat. 724 [Comp. St. § 9485 et seq.]), and hence that it is registrable to the appellee. Decision affirmed.

Affirmed.

10 F.(2d) 657

UNITED STATES v. MOTLOW et al.

(Before Mr. Justice Butler, of the Supreme Court, Sitting as Circuit Justice in the Circuit Court of Appeals for the Seventh Circuit. February, 1926.)

I. Bail 47-Where writ has been issued and citation served in criminal case, Circuit Justice, who is member of Circuit Court of Appeals reviewing case, is authorized to fix and allow bail.

Where the writ has been issued and citation has been served in a criminal case, the Circuit Justice, who is a member of the Circuit Court of Appeals to which the case is taken for review, is authorized to fix and allow bail.

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Power to grant bail is attended by duty to hear applications therefor.

3. Bail 52 - Eighth Amendment, providing that excessive bail shall not be required, safeguards right to bail, at least before trial, and is intended to prevent dénial of bail by fixing amount thereof unreasonably high.

The provision of the Eighth Amendment that "excessive bail shall not be required" safeguards the right to give bail, at least before trial. The purpose is to prevent the practical denial of bail, by fixing the amount so unreasonably high that it cannot be given.

4. Bail 44-Persons convicted of conspiracy

to violate National Prohibition Act held en

titled to bail pending review (Circuit Court of Appeals rule 32; National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101384 et seq.]; Judicial Code, §§ 119-122 [Comp. St. §§ 1111-1114]; Rev. St. §§ 1007, 1014, 1015, 1016 [Comp. St. §§ 1666, 1674, 1679, 1680]; Const. Amend. 8; Act Feb. 13, 1925, § 8, subd. "c" [Comp. St. Supp. 1925, § 1126b]; Ordinance July 13, 1787, art. 2 [Comp. St. 1918, p. 6]).

Persons convicted of conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). who petitioned for

writs of error on very day that sentences were

imposed, though, under Act Feb. 13, 1925, § 8, subd. "c" (Comp. St. Supp. 1925, § 1126b), they had three months therefor, and in application for bail stated that their assignments of error were made in good faith on assurance of coun

sel that they were well founded, held entitled to bail pending determination of Circuit Court of Appeals, in view of Circuit Court of Appeals rule 32, Judicial Code, 88 119-122 (Comp. St. § 1111-1114), Rev. St. $8 1007, 1014, 1015, 1016 (Comp. St. §§ 1666, 1674, 1679, 1680), Const. Amend, 8, and Ordinance July 13, 1787, art. 2 (Comp. St. 1918, p. 6). 5. Bail 42-Appeals may be discouraged by right exercise of discretion as to bail, and proper exercise of discretion is never arbitrary, fanciful, or capricious, but is governed by reason and law applicable to cases under consideration.

Judges may do much to discourage appeals taken on frivolous grounds, merely for delay, by appropriate exercise of their discretion within established lines in granting or withholding 10 F. (2d)-42

bail, as suggested by the Conference of Senior Circuit Judges held in June, 1925. But the proper exercise of judicial discretion is never arbitrary, fanciful, or capricious; it is deliberate, and governed by reason and the law applicable to the cases under consideration. 6. Bail 44.

Applicants for bail pending review of conviction are not required to show that they are entitled to a reversal.

7. Bail 49-Refusal of bail, after conviction by trial judge and two circuit judges, should be considered but not allowed to control on subsequent application.

Refusal of bail, after conviction by trial judge and by two circuit judges, on further application should be thoughtfully considered but not allowed to control a just exercise of discretion in determining application.

One Motlow and thirty-eight others were charged with conspiracy to violate the NaAfter conviction, tional Prohibition Act. Harry Levin and nine others petition for bail pending review of said conviction. Writs of error to take the case to the Circuit Court of Appeals for the Seventh Circuit have been allowed. Bail granted.

T. J. Rowe, Henry Rowe, William Baer, and Charles A. Houts, all of St. Louis, Mo., Thomas Pogue, of Cincinnati, Ohio, Moses B. Lairy, of Indianapolis, Ind., A. Julius Frieberg, of Cincinnati, Ohio, and Levi Cooke, of Washington, D. C., for petition

ers.

Albert Ward, U. S. Atty., of Peru, Ind., and Howard T. Jones and Mahlon D. Kiefer, Sp. Asst. Attys. Gen., for the United States.

BUTLER, Circuit Justice. In the matter of the petitions of Harry Levin and nine other defendants to be admitted to bail.

February 3, 1926, there was presented to me, as Circuit Justice of the Seventh circuit, the petitions for Harry Levin, Morris Multin, Michael Whalen, Daniel O'Neil, Robert E. Walker, John Connors, Anthony Foley, Edward J. O'Hare, George R. Landon, and William Lucking, to be admitted to bail. Their respective attorneys, T. J. Rowe, Esq., Henry Rowe, Esq., William Baer, Esq., Charles A. Houts, Esq., Thomas Pogue, Esq., Moses B. Lairy, Esq., A. Julius Frieberg, Esq., and Levi Cooke, Esq., appeared in support of the petition. Notice having been given, Albert Ward, Esq., United States attorney for the district of Indiana, and Howard T. Jones, and Mahlon D. Kiefer, Esq., special assistants to the Attorney General, appeared in opposition.

October 31, 1925, in the United States

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