Brown v. District of Columbia, 130 U.S. 87 (1889)
Case details
Bluebook Citation
Brown v. District of Columbia, 130 U.S. 87 (1889)
Full caption
BROWN v. DISTRICT OF COLUMBIA.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Mar. 11, 1889
Majority
Fuller (Chief Justice)
BROWN v. DISTRICT OF COLUMBIA.
appeal from the suprem e court of THE DISTRICT OF COLUMBIA.
No. 137. Argued January 8, 9, 1889. — Decided March 11, 1889. In view of the state of the art at the time of their issue, letters patent No.
101,590, granted to Turner Cowing, April 5,1870, for “ a wood pavement p. 88composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, substantially as set forth,” are void for want of novelty.
The substitution of blocks of wood of a given shape for blocks of stone of the same shape in the construction of a pavement neither involves a new mode of construction, nor develops anything substantially new in the resulting pavement, and is therefore not patentable as an invention. Letters patent No. 94,062 to William W. Ballard and Buren B. Waddell, dated April 24, 1869, for improvements in street pavements, were granted for novelty in the method of making the blocks, and not for novelty in the blocks themselves, or in a wooden pavement constructed of them; and it required no invention, but only mechanical skill to produce this method, so far as it varies from other methods for a like purpose previously known.
Letters patent No. 94,063 to William W. Ballard and Buren B. Waddell for “ an improved mode of cutting blocks for street pavements ” are void because the thing patented required only mechanical skill, and involved no invention, and was not patentable.
The case, as stated by the court in its opinion, was as follows:
Tallmadge E. Brown filed his bill in the Supreme Court of the District of Columbia on the 14th day of April, 1880, counting upon three patents alleged to have been infringed by the respondent, namely: Patent No. 101,590, issued to Turner Cowing, April 5, 1870, for “a new mode of constructing wood pavements for streets.” The specification and claim are as follows:
“ The nature' of my invention consists in providing and arranging blocks of a peculiar shape in manner to form wedge-shaped crevices for the reception of earth or gravel, and wherein such earth or gravel will be retained to act as a key to bind and confine the blocks in their place.
“ Figure 1 represents a section of road paved with the blocks, complete. Figure 2 represents the straight side of a block, with the inclined side at E. Fig. 3 represents the top of a block, and also the section of the base D. Fig. 4 represents the straight side of a block, which is set next to the inclined side of the adjoining block.
“In Fig. 1 letter A represents the top of the block, B the side, and E the crevice and gravel. The blocks should, of course, be placed so that the gravel spaces may extend lengthwise across the direction of the street or road, so that, besides wedging and holding the blocks securely, they may furnish a better foothold for animals drawing heavy loads.
“ In the drawing the front edge of the pavement, as shown, represents the side next the curb or a section parallel to the curb.
“ It is obvious that the wedge-shaped crevices may also be formed by setting the above-described blocks so that two vertical sides and two inclined sides come together alternately, as shown in Fig. 5; and it is equally obvious that two blocks having their vertical sides together may be replaced by a single block having two inclined faces, as shown in Fig. 6, without any material change of plan, and with a considerable saving of labor and expense in the construction.
To construct my pavement, prepare the roadway by grading it to the proper form and ramming solid; then set the blocks as shown in Fig. 1, confining them permanently between the curbs of walks; then 'fill and ram the crevices with earth and gravel.
“I do not claim a wood pavement composed of wedge-shaped blocks, when the blocks are laid alternately on larger and smaller ends, so as to form a continuous surface of wood, but what I do claim, and desire to secure by letters patent of the United States, is:
“A wood pavement composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, substantially as set forth.”
Patent No. 94,062, issued to William W. Ballard and Buren addell, August 24, 1869, for “improvements in street pavements, of which the following are the specification and
Figure 1 is a perspective view of a section of pavement eni racing our improvement. Fig. 2 is a perspective view of p. 90a piece of timber from which the block is cut and showing the cuts made by the saw; and Fig. 3 is a perspective view of two of the blocks laid alongside of each other.
“To more clearly illustrate our invention we will proceed to describe the construction, etc., referring by letters to the drawings.
“ A represents the bed of the street, 'which is made slightly arched, the ends of the arch resting against the curbs B B. Strips C are laid upon said arch at right angles to the curb and at convenient distances apart. Upon said strips is laid a flooring, composed of boards of any desired dimensions, and the blocks are then laid on this flooring in rows, and so as to break joints. These blocks are of a wedge shape, and are so laid as that their bases shall touch, forming a continuous arch across the street, and leaving V-shaped spaces between the rows. These spaces are filled with concrete or its equivalent, and the whole surface tarred over, if thought necessary. The gutters are formed by inclining the bed slightly upward at the curb and splitting the ends of the blocks off to fit against the curb and the last one of the street blocks.
“The peculiarity of the blocks used in this pavement is that they are wedge shaped and having both sides at acute angles with the base and the grain running parallel with one and oblique to the other of these sides.
“ A more perfect description of these blocks and the manner of producing them is given in another pending application, now on file in the United States Patent Office, entitled ‘A method of cutting blocks for street pavements,’ prepared and executed by us on the 29th day of September, 1868.
“ The advantages of blocks having both sides bevelled, with the grain running, as described, over the ordinary wedge-shaped block, are first and most important — that only one corner of the base is at all likely to become broken off by transportation and rough handling, whereas in the ordinary block both corners are liable to such accidents. Another advantage of the relation of grain to the sides of the block is that the V-shaped spaces have one perfectly smooth side, and consequently less opportunity is afforded to the gravel in the p. 91filling to jam and leave the lower portion of the space loosely or entirely unfilled. This is believed to be a difficulty in pavements constructed of wedge-shaped blocks having the grain running vertically, and thereby exposing the fibre on both the bevelled sides of the blocks.
“A pavement constructed of our improved blocks can be laid at a less cost than any other wedge-shaped pavement, owing to the cheapness of the blocks.
“ It has always been desirable to build pavements of wedge-shaped blocks, as they make a stronger and more durable pavement and are more easily laid, but so far it has been impracticable owing to the expense of producing the blocks caused by the waste in material and extra sawing.
“ Having described the construction and advantage of our improved pavement, what we claim as new and desire to secure by letters patent is —
“1. As an article of manufacture, wedge-shaped blocks having the grain running parallel to one and oblique to the other of their bevelled sides, and produced substantially in the manner referred to.
“ 2. A wooden street pavement constructed, substantially as hereinbefore described, of wedge-shaped blocks with the grain running and produced in the manner and for the purpose set forth.”
Patent No. 94,063, issued to said Ballard and Waddell, August 24, 1869, for “an improved mode of cutting blocks for street pavement,” of which the specification and claim are as follows:
“ Figure 1 represents the lumber as the blocks are being cut off in order to give the ends of the blocks the proper angle or bevel.
“ Fig. 2 represents the blocks after being cut off as above described before splitting. Fig. 3 represents the blocks in the act of being split on a saw-table, showing the rest or guide necessary to cut them in the proper direction. Fig. 4 represents the blocks finished and placed in the pavement.
“ Our invention consists in a novel method of cutting and splitting blocks for wood pavement in such a manner that two p. 92cuts, or rather one cut and one splitting, will produce two finished blocks with level top and bottom and two sides bevelled, one being with the grain and the other slightly oblique to the grain, without more waste of timber than is occasioned by the saws.
“We take a piece of lumber four and a half feet long, twelve inches wide and seven inches thick. This is placed under the saws, as shown in Fig. 1, in an inclined position, so that the first cut will produce blocks with two sides inclined, the top and bottom level or in parallel planes. The first cut produces nine blocks, such as shown in Fig. 2, out of a piece of lumber, as described above. Each such block will then be twelve inches long, six inches high with the fibre and seven inches wide across the fibre. These blocks are then split, as indicated in dotted lines, Fig. 2, slightly oblique to the fibre, as seen also in Fig. 3, being brought toward the splitting saw in an inclined position, inclined in contradistinction to a position level at top and bottom, in such a manner that the line of the cut will form the other two bevelled sides of two blocks, each of which has the top and bottom level, or in parallel planes, and the sides bevelled as shown in Fig. 4, and, moreover, has the grain running in the direction of one of the bevelled sides, as clearly shown in Figs. 2 and 3. These blocks will then be twelve inches long, six inches high, three inches wide at top and four inches wide at the base.
“ The figures of feet and inches we have, of course, used only as an illustration, as different dimensions of lumber may be used, but those given will do for an ordinary street block.
“ The two great advantages of this method are economy of lumber and of labor and time, the only loss of lumber being the small pieces cut off at each end to start the bevel. Each two cuts, or rather one cut and one splitting, produces two complete blocks ready for use.
“Having thus described our invention, what we desire to secure by letters patent is —
“ The herein-described method of cutting blocks for wooden pavement, so as to form by two cuts, or one cut and one splitting, two finished blocks with top and bottom level, or in p. 93parallel planes, and the sides bevelled, one side being inclined with the fibre, and without waste of material, substantially as set forth.”
The defendant pleaded the Statute of Limitations, whereupon the complainant amended, and the defendant subsequently demurred, and the demurrer being overruled, the defendant, after interposing another plea of want of notice, answered, denying that it had, in any way, violated the rights of the complainant, and, among other things, averring that all the substantial claims of complainant’s alleged patents were covered by previous patents granted to Nicholson, De Golyer, Miller and Mason, Stone, Cranford and others; and that wooden pavements, in all substantial particulars identical with those claimed by complainant, had been laid and used for more than two years before the patents were applied for, in Chicago, New York, Boston, etc., and that the alleged patents are null and void because the alleged invention is neither new nor useful.
Replication was filed and proofs taken. It appeared that patent No. 101,590 was originally granted to Cowing, whose first application was made in November, 1865, and rejected December 27 of that year, whereupon it was amended and renewed in 1869, but the decision was that the application had been abandoned. It was afterwards entertained, and was twice amended in 1870, and the patent was finally issued April 5,1870. In the original application Cowing said as in the patent as issued:
“The nature of my invention consists in providing and arranging blocks of a peculiar shape in manner to form wedge-shaped crevices for the reception of earth or gravel, and wherein such earth or gravel will be retained to act as a key to bind and confine the blocks in their place.”
The amended claim of May, 1869, was:
“ The above-described, wood pavement, constructed of rectangular blocks, having each a wedge-shaped piece cut from one of its four vertical sides to form a corresponding space for filling, and placed and filled in, substantially as set forth.”
The amended claims of February 22, 1870, were;
“ 1st. A wood pavement consisting of blocks having one or more inclined sides, forming between them wedge-shaped spaces or crevices, which are filled with earth, gravel, or other suitable material, substantially as herein described. 2d. In wood pavement, wedge-shaped spaces or crevices for the reception of earth, gravel or other filling to act as a key to bind and confine the blocks in their places, substantially as described. 3d. A wood-pavement block having one or more oblique or inclined sides, so as to form, when set, wedge-shaped spaces or crevices to receive earth, gravel or other filling, substantially as set forth. 4th. In wood pavement, in combination with wedge-shaped crevices above, formed by the peculiar shape of the blocks, for receiving gravel or other filling, a continuous base beneath, formed by the complete fitting together of the same blocks at the bottom, substantially as specified.”
On the 31st of March, 1868, a patent was issued to Miller and Mason, of Chicago, Illinois, for “ certain new and useful improvements in wood pavements,” in which the claim is:
“ A pavement constructed of wedge-shaped blocks A, when laid so as to break joints with those of the opposite rows, in combination with a concrete filling, and in further combination with a continuous wood foundation, and so laid as to form continuous rowTs across the street.”
It is said in the specification of that patent :
“The blocks A are to be cut from plank, and are of the usual size, having the fibre vertical. The blocks of our pavement, however, differ from all other blocks in use for pavements, in having both sides bevelled from top to bottom, as shown by the end view of the blocks in the drawings. The blocks thus prepared are placed in the board or plank foundation B in transverse rows. Each block may be secured to the foundation by a nail or spike, as shown at a. It will be observed that in consequence of the peculiar shape of the blocks those in the several rows touch each otheç at the bottom, but are some distance apart at the top, forming between the rows wedge-shaped channels. These channels are to be filled with concrete, or gravel and coal-tar, or other suitable substance, furnishinef the necessarv foot-hold for horses.
* * * * *
“ The blocks can be cut with less waste of material by cutting them from timber and splitting the timber blocks with the proper bevel. This makes a strong pavement, and as the blocks have a broad base they will not cut or break the foundation when very heavily loaded teams are driven over it.”
August 20, 1867, letters patent were reissued to Samuel Nicholson, of Boston, for “ a new and useful improved wooden pavement,” the original letters having been issued August 8, 1854, and new letters issued dated December 1, 1863. The claims of the second reissue are:
“1. Placing a continuous foundation or support, as above described, directly upon the roadway, then arranging thereon a series of blocks having parallel sides endwise in rows, so as to leave a continuous narrow groove or channel-way between each row, and then filling said grooves or channel-ways with broken stone, gravel and tar, or other like materials. 2. The formation of a pavement by laying a foundation directly upon the roadway, substantially as described, and then employing two sets of blocks; one, a principal set of blocks that shall form the wooden surface of the pavement when completed, and an auxiliary set of blocks or strips of board which shall form no part of the surface of the pavement, but determine the width of the groove between the principal blocks, and also the filling of said groove, when so formed, between the principal blocks, with broken stone, gravel and tar, or other like material. 3. Placing a continuous foundation or support, as above described, directly upon the roadway, and then arranging thereon a series of blocks having parallel sides endwise in a checkered manner, so as to leave a series of checkered spaces or cavities between said blocks, and then filling said checkered cavities with broken stone, gravel and tar, or other like mate-ria . 4. The formation of a pavement by laying a foundation irectly upon the roadway, substantially as above described, k th®11 employing two sets of blocks, viz., one a principal set o locks that shall form the wooden surface of the pavement, and an auxiliary set of blocks that shall form no part of the * wooden surface of the pavement, but determine the p. 96dimensions of the tessellated cavities between the principal blocks, and then filling said tessellated cavities with broken stone,
gravel and tar, or other light material.”
February 28, 1824, English letters patent were granted to A. H. Chambers for “ improvements in preparing and paving horse and carriage-ways,” in which the nature of the invention is said to
“Consist in an arrangement of conical-formed stones, or other hard mineral or silicious substances of the said form, placed on their natural bases, cemented together at their lower extremities, and having their remaining interstices filled with loose materials insoluble in water.”
He describes pyramidal stones, “ cut in the form represented in the drawing, and placed with their large end or natural base downward,” to be grouted at their bases by a good strong cement; the upper part of the interstices that will then be left vacant to be filled “ with finely broken flints, patent English pozzolana powdered, or any other similar substance, not soluble in water.”
“Fig. 3 represents the stones in that form which I consider the best calculated to effect the required resistance to downward pressure, the size of which should be eight inches square at the apex, twelve inches square at the base, and ten inches high.”
He explains that while stones of the shape described are the best adapted for the purpose of the pavement or carriage-way, yet to save expense use may be made for all ordinary pavements of stones as usually prepared for paviors, but taking care “ always to lay their natural bases or largest end downwards which is the exact reverse of the mode adopted by paviors; ” “ the upper part of the intermediate spaces or interstices aforesaid filled with powdered or finely broken matter not soluble in water, as aforesaid.”
June 14, 1825, English letters patent were granted to John Lindsay for “ certain improvements in the construction or formation of the horse and carriage-ways of streets, turnpike and other roads, and an improvement or addition to wheels to be used thereon.”
He says, referring to a pavement “with the common or I usual sized paving stones,” that
“ The method of arranging or laying them is as follows: | Instead of laying them with their broadest ends upwards, I lay them with the broadest ends downwards, and, as each [ stone is made of a wedge form, this leaves a considerable I space open between the stones. These I close with smaller stones of a wedge form, which, being carefully placed and | well rammed down, after a sufficient quantity of fine gravel or grout has been worked between them, will make a paveI ment nearly as substantial as a solid sheet of granite.”
In 1839, English letters patent were issued to Richard Hodgson for “ improvements in the forms or shapes of materials and substances used for building and paving and in their combinations for such purposes,” in which he describes an invention consisting in forming and shaping materials and substances according to a new section of the cube obtained by dividing the cube into eight equal prisms or parts, etc., the shapes and forms described, with their combinations, being “ applicable generally to materials and substances employed in building and paving, whether of stone, iron, bricks, or wood.” The shapes in the case of stone, marble, etc., are “ to be formed by sawing or cutting the same out of the full size of the cube and leaving them entire in their relative dimensions, so as to be ready to be placed together either horizontally, vertically, or obliquely, as the case may require,” while for “ wood paving a peculiar disposition of the materials or blocks thus shaped, and, if necessary, pegged or dowelled, will be required,” etc. The blocks may be packed up together in the workshop in masses, so as to be laid down more speedily on the ground, where they must be fastened together with pegs or with any bituminous compound usually employed for similar purposes. They must be placed nearly vertically, as the tree grows, and according to the traffic, the depth or substance of the wood pavement must be increased or diminished. They may in most cases be laid across the street from side to side, but, when necessary, in a diagonal line.
Defendant introduced various letters patent, to wit: For im-
VOL. CXXX—7 p. 98provement in “the machine for re-sawing boards and other timber,” (issued to Crosby, 1841;) for “ improvements in sawmills, for curved and bevel sawing, but which may also be used for rectilinear sawing,” (issued to Normand, 1854 ;) for “a new and improved mode of sawing stone or marble into tapering and other forms,” (issued to McBird, 1856;) for “ an adjustable table for reciprocating saws,” “ whereby the proper bevel may be imparted to the ribs of vessels and other objects with accuracy and facility,” (issued to Hinchman, 1863;) for “improvement in the manufacture of siding,” (issued to Millengar, 1864;) for “an improved sawmill,” “so as to cut ship-timbers and other irregular forms,” (issued to Wright & Molyneux, 1865;) and also extracts from a volume entitled “ Turning and Mechanical Manipulation,” by Charles Holtz&pffel, London, 1847.
These extracts treat of cutting, by means of guides, rectangular pieces from the end of a long bar, and rhomboidal pieces of any angle and magnitude; the sawing of small pieces into regular and irregular polygons of any particular angles and numbers of sides; the cutting of mitres, etc.; the sawing bevelled edges and oblique prisms or those in which the angular variations are in the vertical plane, rhomboids, or squares.
“ When the pieces are parallel in one direction and bevelled in the other, they may be cut out without any waste beyond that arising from the passage of the saw.”
Figure 743 shows a method of cutting blocks at one cut for each piece, into rhombuses, which are shown separately at a, which blocks can be afterwards divided into two, so as to make triangular-shaped blocks such as are shown at c.
At the hearing in special term the bill was dismissed, and the decree being affirmed in general term, the complainant has prosecuted his appeal to this court.
The opinion of Judge Cox at special term was adopted by the court in general term, (Cartter, C. J., Hagner and James, J J.,) and from it it appears that it was held that no case of actionable infringement was made out as to No. 94,063, and that Nos. 94,062 and 101,590 were void for want of patentable novelty. Brown v. District of Columbia, 3 Mackey, 502.
Jfr. C. C. Cole and Mr. A. 8. Worthington for appellant. Mr. Henry E. Davis for appellee. Me . Chief Justice Fuller delivered the opinion of the court:
Was a wood pavement “composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling,” patentable April 5, 1870, in view of the state of the art ?
Chambers had, in 1824, described a pavement of pyramidal stones, twelve inches square at the base, eight inches square at the apex, and ten inches high, placed with their larger end downward, and the interstices filled with loose materials insoluble in water.
Lindsay’s invention, in 1825, comprised stones made of a wedge-shaped form, laid with their broadest ends downwards, leaving a considerable space between them to be closed with smaller wedge-formed stones, with fine gravel or grout worked between them.
Nicholson’s pavement was composed of blocks of wood laid in rows across the street, with spaces obtained by interposing narrow wooden strips between the blocks, to be filled with concrete or other suitable filling.
Cowing disclaimed “ a wood pavement composed of wedge-shaped blocks when the blocks are laid alternately on larger and smaller ends, so as to form a continuous surface of wood,” but claimed the arrangement of the blocks so as to leave wedge-shaped spaces to receive filling to act as a key to bind the blocks together. But reference to these prior patents clearly shows that the formation of wedge-shaped spaces to receive concrete or other filling by laying blocks with one or more inclined sides with their larger ends downwards, the filling acting as a key, and the use of wooden blocks in that way, were well known at the time of the alleged invention under consideration.
The blocks of the Lindsay patent are of the same shape as t ose of Cowing, but are of stone, while the latter are of p. 100r
ç^vood^^î this was nothing more than thé substitution of one çy maiwl for4^other without involving a new mode of constructiqnT or d^eToping anything substantially new in the resulting
Kelsey, 18 Wall. 670 ; Smith v. Goodyear Dental Vulcanite S* Co., 93 U. S. 486 ; Phillips v. Detroit, 111 U. S. 604.
The filling under Lindsay’s patent was with small stones, fine gravel, or grout, while Cowing names a filling of earth, gravel, or some other similar substance, but Nicholson used broken stones, gravel and tar, or other like material, being the same filling- for the same purpose and with substantially the same result, while the material of the Nicholson block was the same as that of Cowing.
It is argued that gravel and similar substances cannot be forced into the stone blocks of the Chambers and Lindsay patents, and that in ramming gravel between wooden blocks it of necessity indents the blocks, and the filling must adhere much more firmly than would be the case if they were stone. There is nothing said about this by Cowing in his specification, but he is entitled, if this is an advantage directly following from the alleged invention as described, to the benefit of it, whether he perceived it or not. Stow v. Chicago, 104 IT. S. 547, 550. The same effect, however, would be obtained in ramming filling between the blocks of any wooden pavement, and the same liability of the filling “ to extend laterally into the fibre of the wood and seat itself therein ” is found in the Nicholson pavement.
In the Chambers patent the blocks had four inclined sides, which would make the filled space run lengthwise as well as crosswise. In the Cowing patent the crevices run lengthwise “ across the direction of the street or road.”
As Cowing’s combination simply embraces blocks of the same shape and material, and similar filling, applied in substantially the same way and producing substantially the same results as in the prior patents referred to, it cannot be regarded as possessing patentable novelty.
The first claim of patent No. 94,062 covers, as an article of manufacture, “ wedge-shaped blocks having the grain running p. 101parallel to one and oblique to the other of their bevelled sides, and produced substantially in the manner referred to.”
The second is “ a wooden street pavement constructed substantially as hereinbefore described, of wedged-shapqd blocks with the grain running and produced in the manner and for' the purposes set forth.”
The original application of Ballard was filed June 15, 1869, and rejected by Examiner Spear upon the ground that the claim was essentially the same as that in No. 94,063, which was for a mode of cutting blocks. It was then amended and again rejected, the examiner saying: “It is admitted that there is no difference between the blocks of applicant and those of Miller and Mason in configuration, nor is any difference claimed of functions. These blocks and those of the patent referred to, once laid, would be indistinguishable, serving, under the same conditions, precisely the same purposes and wearing equally as long. The difference lies in the mode of cutting, by which not a different block is produced, but the same block is cut with a minimum of waste of material.” From this decision an appeal was taken to the examiners in chief, who affirmed the ruling, holding that “the trouble with the present application appears to be that the specification and claim merely set forth and embrace a paving block and the use thereof, having a certain form and being so cut that the grain, will run in certain angles with the sides, or parallel thereto, and without any reference to the mode and manner of manufacturing. Blocks having all the peculiarities set forth may be manufactured without resorting to the method by which it seems the ones described in the application were made; and it does not follow, therefore, that the block described and claimed is the new article of manufacture produced by the new invention, nor is it at all material whether the grain runs as set forth or the blocks have the precise form described. Therefore these peculiarities are not the patentable features of the invention; they merely result from the invention.”
The application was then renewed by Ballard and Waddell with the result before us, but it is plain that the patent was granted for novelty in the method of making the block and p. 102not in the block itself, nor in a wooden street pavement so constructed. It is not denied that the Ballard block is identical in shape with those set forth in the Cowing, Chambers, Lindsay and Miller and Mason patents, but it is claimed that a difference exists between it and that of Miller and Mason in the arrangement of the grain, namely, running parallel with one and oblique to the other of its bevelled sides.
We can discover nothing materially different in the practical result of having the grain run in this way, and no material difference is disclosed by the evidence.
The specification asserts that the gravel in the filling is not so liable to jam and leave the lower portion of the space loosely or entirely unfilled, where the blocks have one perfectly smooth side, and that “ only one corner of the base is at all likely to become broken off by transportation and rough handling, whereas in the ordinary block both corners are liable to such accidents;” but, as appears from the evidence, “if the blocks are cut with the grain in the manner described in said patent, although one side is not so likely to break off as the other, yet the side that has the grain oblique to it is twice as likely to be broken off as the blocks made in the ordinary way, that is, with the grain vertical,” and “ the effect of the smooth side of one block, if there were such an alleged advantage in said side, would be fully recompensed by the additional roughness of the other side; ” and it would seem that the durability of the block is less where the grain is inclined than where it is vertical. It is fully shown in an elaborate report upon wood paving, quoted from in the evidence, and which, it is testified, agrees with general experience, that vertical fibre blocks have far greater power of resistance than blocks with fibres horizontal, and with fibres at various degrees of inclination.
The manner of laying the blocks is substantially ¿he same as in prior pavements.
The process of making the block is given in patent 94,063, the claim of which is “the herein-described method of cutting blocks for wooden pavement, so as to form by two cuts, or one cut and one splitting, two finished blocks with top and bottom level, or in parallel planes, and the sides bevelled, one side being p. 103inclined with the fibre, and without waste of material, substantially as set forth.”
From what we have said it will be perceived that this claim and the first claim of patent No. 94,062 must be considered together. The manner of producing these blocks is described as cutting them from lumber by means of guides so as to cut the blocks of certain bevels, by which a block is produced having two of its sides inclined and with the grain running parallel to one and oblique to the other of the bevelled sides; but the essential features of the apparatus described in this patent appear in many of the defendant’s exhibits. Instead of having a table parallel with the shaft of the saw or at right angles with the saw itself, the patent in question uses a rest or guide in presenting the material to the saws, but the use of such guides is shown in Holtzapffel’s “ Turning and Mechanical Manipulation,” and Crosby’s patent and others.
The prior existence of the method of cutting blocks without waste by severing a large block by a cross-cut from a long stick and then dividing that block into two similar blocks by a splitting cut is satisfactorily established, as also the same result reached in the same way in the treatment of stone. In the case of the Ballard block, the splitting cut is made in a direction parallel with the grain; but that is because the object of having the grain run in a particular way controls the action of the mechanic, who makes the cut as he desires the fibre to run.
Complainant’s expert admits that the patentee in the McBird patent, by the first cut he makes, produces a block of rhomboidal form, and, by a second oblique cut, divides his block into two equal wedge-shaped blocks, produced without waste of material; and the difference he points out between that and the Ballard and Waddell patent is, so far as the cutting operation is concerned, that in the former the cut which divides the rhomboid into two wedge-shaped blocks is made across the grain, while m the latter it is made in the general direction of the grain.
To cut the block so as to get the grain in a particular way, and so as to avoid waste, requires simple mechanical skill, without involving invention.
The result is that none of these claims can be sustained, and the decree of the court below is Affirmed.
RICHARDSON v. GREEN.
NELSON v. GREEN.
NELSON v. GREEN.
SICKLES v. GREEN.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOE
THE WESTERN DISTRICT OF MICHIGAN.
Argued February 1, 4, 1889. —Decided March 18, 1889.
It is a well settled rule that this court will not entertain an appeal where the transcript of the record is not filed in this court at the term next succeeding the taking of the appeal, unless a recognized satisfactory excuse for the laches is made.
It is not a sufficient excuse that the clerk of the court below was mistaken in his understanding as to the time when the transcript must be filed, and that it was prepared as soon as possible by him, having due regard to the other duties of his office, and the size of the record.
Where the transcript of the record was placed in the hands of the clerk of this court at the next term after the appeal was allowed and perfected by the filing of a bond, but no appearance was entered for the appellant, nor any deposit for costs made, at that term, but these things were done at the next following term, and the case was then docketed, and a motion to dismiss the appeal was made at the third term thereafter : Held, that the motion must be denied.
Where an appeal is allowed in open court at the same term the decree is made yet if the bond to perfect the appeal is not accepted at or during that term, a citation is necessary.
The issuing of a citation may be waived by the appellee, and a general appearance by him is a waiver of a citation.
Where this court has jurisdiction of an appeal, and a citation is necessary, it will issue one.
Reasons stated why the appeal in this case is not open to the objection that it does not involve more than $5000, or to the objection that the appellee is not named in the order allowing the appeal.
Where the appellee died after the argument of the motion to dismiss the appeal, thè order on the motion was entered nunc pro tunc as of the day of the argument.
In equity . On the 21st January, 1889, a motion to dismiss these cases was submitted, and a further motion was made to p. 105postpone the hearing when the cases should be reached, until the motion to dismiss should be decided. The motion to postpone was denied on the 22d January, and the motion to dismiss was ordered to be heard at the argument on the merits. The case is stated in the opinion of the court.
Mr. J. Hubley Ashton and Mr. Henry T. Dechert appearing specially for John Bower & Co. and John F. Betz, appellees, in support of the motions to dismiss, cited: Castro v. United States, 3 Wall. 46; Edmonson v. Bloomshire, 7 Wall. 306; Grigsby v. Purcell, 99 U. S. 505; The Tornado, 109 U. S. 110; Killian v. Clark, 111 U. S. 784; Caillot v. Deetken, 113 U. S. 215; Fayolle v. Texas &c. Bailroad Co., 124 U. S. 519; United States v. Burchard, 125 U. S. 176; Hewitt v. Filbert, 116 U. S. 142; Badford v. Folsom, 123 U. S. 726; Sage v. Bailroad Co., 96 U. S. 712; Vansant v. Gas-Light Co., 99 U. S. 213; Bailroad Co. v. Blair, 100 U. S. 661.
Mr. D. A. McKnight appeared for Thomas W. Ferry, Hiram Hodgden, John A. Elwell, Frederick A. Kims and Edward P. Ferry, appellees, and, in support of the motions to dismiss, cited: Hamilton v. Moore, 3 Dall. 371; Blair v. Miller, 4 Dall. 21; Veitch v. Farmers' Bank, 6 Pet. 777; Villabolos n . United States, 6 How. 81; United States v. Curry, 6 How. 106, 112; The Virginia n . West, 19 How. 182; Carroll v. Dorsey, 20 How. 204; Castro v. United States, 3 Wall. 46; United States v. Gomez, 3 Wall. 752; Mussina v. Cavazos, 6 Wall. 355; Washington v. Dennison, 6 Wall. 495 ; Edmonson v. Bloomshire, 7 Wall. 306; The Lucy, 8 Wall. 307; Gillette v. Bullard, 20 Wall. 571, 574; Caillot v. Deetken, 113 U. S. 215; Edwards v. United States, 102 U. S. 575; Grigsby v. Purcell, 99 U. S. 505; Hilton v. Dickinson, 108 U. S. 165; The Tornado, 109 U. S. 110,117; State v. Demarest, 110 U. S. 400j Killian v. Clark, 111 U. S. 784; Fayolle v. Texas &c. Bailroad Co., 124 U. S. 519; Deneale v. Archer, 8 Pet. 526; Miller v. McKenzie, 10 Wall. 582.
Mr. Lyman D. Norris, for appellants in Ko. 181, opposing, cited: Woodv. Lide, 4 Cranch, 180; Bingham v. Morris, 1 p. 106Cranch, 99; Pickett v. Legerwood, 1 Pet. 144; Owings v. Tiernan, 10 Pet. 24; Van Rensselaer v. Watts, 7 How. 784; Sparrow v. Strong, 3 Wall. 97; Edwards v. United States, 102 U. 8. 575; Grant v. Phoenix Ins. Co., 106 U. S. 429; Butterfield v. Usher, 91 U. S. 246; Hilton v. Dickinson, 108 U. S. 165; Wheeler v. Harris, 13 Wall. 51.
Mr. Willard Kingsley, (with whom was Mr. James Blair on the brief,) for intervening defendants Nelson and Soule in Nos. 947 and 1027, appellants, opposing, cited: Fosdick v. Schall, 99 U. S. 235; Edwards v. United States, 102 U. S. 575; Hewitt v. Filbert, 116 U. S. 142; Radford v. Folsom, 123 U. S. 725.
Mr. Daniel E. Sickles in person, for himself and Stevens, appellants in No. 1074, (with whom were Mr. T. J. O' Brien and Mr. Daniel P. Hays on the brief,) opposing, cited: Grigsby v. Purcell, 99 U. S. 505; Fayolle n . Texas Railroad, 124 U. S. 519, 523; Fosdick v. Schall, 99 U. S. 235; Barton v. Barbour, 104 U. S. 126, 134.
Mr . Just ice B latchfor d delivered the opinion of the court.
These are five appeals taken in a suit in equity brought by Ashbel Green and William Bond, trustees, against the Chicago, Saginaw and Canada Railroad Company, in the Circuit Court of the United States for the Western District of Michigan, for the foreclosure of a mortgage executed to the plaintiffs upon the railroad of that company. The mortgage was given to the plaintiffs, as trustees, to secure 5500 bonds, of $1000 each, issued by the company, and payable to the plaintiffs or bearer.
A decree was made, on June 30,1882, directing a foreclosure and sale, and referring it to a master to determine the priority of those who claimed to be creditors of the company. On the 6th of November, 1882, the master filed his report, in which he divided the debts and bonds proved before him into four classes. In class A he placed the debts which had a priority over the bonds. The creditors in class A were Thomas M. p. 107Nelson and James B. Soule, for a debt of $25,284.17, of which $12,497.48 had a priority, and was to be paid in full; and Thomas M. Nelson for a debt of $7749.42, of which $3845.20 had a priority, and was to be paid in full. In class B he placed the bona fide holders of the bonds as purchasers of them, among whom were Daniel E. Sickles for 163 bonds, amounting to $269,541.26; and Benjamin F. Stevens, for 32 bonds, amounting to $51,247.20. In class C he placed persons who held the bonds as collateral security, and the amount of security so held. Among these was Benjamin Richardson, with a debt of $273,282.87, and collateral security in 200 bonds, amounting to $374,904.
After a hearing on the report of the master, and exceptions thereto, the court, on the 3d of May, 1883, made a decree providing for the distribution of the proceeds of the sale of the mortgaged property which had taken place. After directing the payment of certain expenses and of receiver’s certificates, it directed the payment pro rata, from the fund remaining, of certain specified bonds as a third class, no greater sum to be paid, where the same were held as security, than sufficient to satisfy the indebtedness for which they were held. In this class the decree named Sickles and Stevens,, as owners, for the number of bonds and the amounts severally before mentioned ; and Richardson and his assignee, Henry Day, for the debt before mentioned, with the lien on 200 bonds, amounting to the sum before mentioned. The decree then put into a fourth class the debts, above mentioned,, to Nelson and Soule, and to Nelson, to be paid pro rata from any surplus which should then remain.
On the 12th of July, 1883, Sickles and Stevens were permitted, by an order of the court, to prosecute in their own names an appeal to this court from the decree of May 3,1883; and by a like order, made on the same day, Richardson and Day were allowed to appeal to this court from the same decree. The appeal bond of Sickles and Stevens was filed in the Circuit Court on September 6, 1883, and that of Richardson and Day on August 14, 1883.
On the 6th of August, 1883, Sickles and Stevens filed in the. p. 108Circuit Court a petition alleging that the master, in computing the amount due to various claimants of the bonds other than the petitioners, and who held the bonds as collateral security and not as purchasers, had allowed to them interest to which they were not entitled. The petitioners set forth that they desired a rehearing on the point thus stated, and prayed that, where the error had occurred, there might be a recomputation of the interest, and a return of the overpayment, where distribution had already been made; and that, in the meantime, the master be directed to make no further distribution of the fund; and for such other and further relief as should be equi-table and proper.
On a hearing of the matter, the court made an order, on the 1st of September, 1883, adjudging that the master had made an erroneous computation of the interest in the case of bonds held by divers claimants as collateral security, in that he had allowed such claimants all coupons appearing with and attached to the bonds, without regard to the date when they w’ere delivered to the holders, instead of computing interest upon them only from the date of their delivery; and referring it to the clerk of the court to make a computation of the interest on the bonds, from the date of their delivery to the several persons who held them as collateral security. The clerk reported such computation, and stated the amount of the 200 bonds held by Benjamin Richardson, as collateral security, to be $330,725, instead of, as before, $374,904. It also appeared that Richardson and Day had been overpaid $2173.91; and that the Wrought Iron Bridge Company had been overpaid $183.60.
On September 11, 1883, Nelson and Soule were allowed an appeal from the decree of May 3, 1883; and on that day Thomas M. Nelson was also allowed an appeal from the same decree. An appeal bond on each of these two appeals was filed in the Circuit Court on October 15, 1883.
On the 8th of October, 1883, the court, on a further hearing, entered a decree which recited that the cause “came on to be reheard; ” and also recited the filing of the petition by Sickles and Stevens for a rehearing, and the making of the reference to the clerk and his report, and stated that it appeared “to p. 109this court that a, rehearing should be had, and a correction made in the decree ” of May. 3, 1883, and, after reciting the provisions of that decree in regard to paying the creditors in the third class, then proceeded to give a new list of the third class, putting down Sickles and Stevens as the owners respectively of the same number of bonds, for the same amounts, as in the decree of May 3, 1883, and the debt of Richardson and Day at the same amount as in that decree, with a lien on 200 bonds, amounting to $330,725, instead of $374,904, as in that decree. It also adjudged that the Wrought Iron Bridge Company had been overpaid $183.60, and Henry Day, assignee of Benjamin Richardson, $2173.91, and that they should severally pay into the court those sums, which should be distributed among the remaining several claimants, in proportions and amounts specified in the decree; among others, to Benjamin F. Stevens, $113.25; to Daniel E. Sickles, $595.66; to J. Bower & Co., $373.93; to John F. Betz, $357.41; to Thomas W. Ferry, $205.02; to Hiram Hodgden, $37.49; to John A. Elwell, $16.93; to Frederick A. Nims, $40.53; and to Edward P. Ferry, $64.32. The decree further provided “that all persons having claims against the fund created by the sale of the mortgaged property herein, whether evidenced by bonds, coupons, or otherwise, shall present the same to this court within live days from the date of this decree, and in default thereof the clerk of this court shall distribute to the parties, respectively, all moneys to which they are entitled hereunder.” It further provided “that the decree of May 3, 1883, entered herein, shall stand ratified and confirmed, except as the same is changed and modified by this decree.”
On the 17th of November, 1883, Richardson and Day were allowed an appeal from the decree of October 8, 1883. The
appeal bond on that appeal was filed in the Circuit Court, November 28, 1883. 9 The appeal of Richardson and Day from the decree of May 3’1883, and their appeal from the decree of October 8, 1883, are together known as No. 181. There is no other appeal but theirs, from the decree of October 8, 1883. The appeal of kelson and Soule from the decree of May 3, 1883, is No. 947; p. 110the appeal of Nelson from that decree is No. 1027; and the appeal of Sickles and Stevens from that decree is No. 1074.
Motions are now made, in the four cases, by John Bower & Co., and John F. Betz, to dismiss the twTo appeals in No. 181, and the other three appeals, on the grounds, that the transcript of the record was not filed, and the cause was not docketed, in this court at the term thereof next after the time when the appeals respectively were prayed and allowed; and that no citations were issued on any of the appeals. A motion is also made by T. W. Ferry, Hodgden, Elwell, Nims, and E. P. Ferry, to dismiss the four appeals from the decree of May 3, 1883, for Avant of jurisdiction, and also for want of due prosecution, because they were not lodged, or filed, or docketed, in this court during the term next succeeding the date of their allowance; and to dismiss the appeal, in No. 181, from the decree of October 8, 1883, for want of jurisdiction, because the amount involved is less than $5000; and to dismiss the appeals in Nos. 947 and 1027, for want of citations; and to dismiss all five of the appeals, because the appellees are not described in them with certainty.
As to Nos. 947, 1027 and 1074, the appeal in each is from the decree of May 3, 1883. In Nos. 947 and 1027, the appeals were allowed by an order of court, made in open court, on the 11th of September, 1883; and in No. 1074, by an order of court, made in open court, on the 12th of July, 1883. In No. 947, the transcript of the record was filed, and the case docketed, in this court, January 26, 1888; in No. 1027, June 26,1888; and in No. 1074, August 30, 1888. The term of this court next ensuing the allowance of the several appeals in Nos. 947, 1027 and 1074, from the decree of May 3, 1883, was the October Term, 1883. That term commenced on the 8th of October, 1883, and ended on the 5th of May, 1884. The transcript of the record filed in all five of the appeals is certified by the clerk of the Circuit Court by a certificate bearing date October 4, 1884. The same transcript of the record is filed in all of the appeals. The transcript left the office of the clerk of the Circuit Court on October 6, 1884, and was sent by express, and reached the clerk of this court on October 10,1884; p. 111but no step was taken by any^of the parties appellant, in No. 947, No. 1027, or No. 1074, to furnish security to the clerk for the payment of his fees, under § 1 of Rule 10 of this court, or to have the transcript filed, or the case docketed, or an appearance entered, at the term of this court next after the allowances of the appeals, to wit, the October Term, 1883.
The rule being well settled that this court will not entertain an appeal where the transcript of the record is not filed in this court at the term next succeeding the taking of the appeal, Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258, 259, and cases there cited, unless a recognized satisfactory excuse for the laches is made, it is sought in these cases to show-such excuse by the following facts: In October, 1883, the appellants Richardson and Day as one party, Sickles and Stevens as one party, and Nelson and Soule and Thomas M. Nelson as one party, gave to the clerk of the Circuit Court a joint verbal order to make a transcript of the record without unnecessary delay, and forward it to the clerk of this court, the three parties to pay to the former clerk the fees therefor pro rata, according to the amounts of their respective claims. After such order to the clerk, the appeal of Richardson and Day from the decree of October 8, 1883, was taken. The clerk did not know that each appeal was a separate matter, but believed that all the appeals made but one case, and that, if the record should reach this court in time for any one appeal, it would bring up the case as a whole, with all the appeals; and he understood and believed, while he was copying the record, that if the transcript should arrive at the office of the clerk of this court on or before October 15, 1884, it would be in ample time to make all of the appeals valid, on the filing and docketing of the transcript. The clerk prepared the transcript as soon as he could, having regard to the other duties of his office and to the size of the record, (which makes 1235 printed pages, as printed here). He did not complete the making of the transcript until about June 24, 1884, and forwarded it by express to the clerk of this court on October 6, 1884. These facts are supported by an affidavit of the clerk, and by one of the solicitor for Nelson and Soule, to the same effect.
We cannot admit the validity of this excuse, in regard to the three appeals in question. All suitors in this court are bound by its written rules, and its practice and decisions are established and known. The same ruling must apply to the appeal in No. 181, from the decree of May 3, 1883. That appeal was allowed July 12, 1883. The transcript of the record was not certified until October 4, 1884, and did not reach the hands of the clerk of this court until October 10, 1884, all of which occurred after the expiration of the October Term, 1883, of this court. That appeal therefore fails, with the other three.
But the appeal in No. 181, of Richardson and Day, from the decree of October 8, 1883, was allowed on November 17, 1883, after the commencement of the October Term, 1883, of this court. It was, therefore, returnable to the October Term, 1884, of this court. The transcript, as before stated, was put into the hands of the clerk of this court, in his office, on the 10th of October, 1884. The counsel for Day and Richardson took no further step in the matter until September 25, 1885, when he wrote to the clerk of this court, desiring his appearance to be entered for them. After some further correspondence, the counsel was informed by the clerk that, although the latter had received the record in October, 1884, the appeals had not been docketed, because the rule as to a deposit for costs (Rule 10) and that as to the entry of appearance (Rule 9) had not been complied with. On a compliance with such rules, and on the 26th of October, 1885, the case was docketed, and an appearance for Richardson and Day was entered.
The principle applicable to such a state of facts is that established by the decision in Edwards v. United States, 102 IT. S. 575. In that case, a writ of error was issued, returnable at October Term, 1877. A transcript of the record was lodged in the office of the clerk of this court in September, 1877, but by an oversight of the counsel for the plaintiff in error no fee bond was given, and the cause was not docketed during October Term, 1877. In September, 1878, an acceptable fee bond was given, and the cause was formally docketed. A motion was made, at October Term, 1880, to dismiss the writ of error. This p. 113court denied the motion, and said (p. 576): “We are aware that in some of the cases it has been said that a writ of error or an appeal becomes inoperative if a transcript is not filed and the cause docketed during the term to which it is made returnable, but this has always been in cases where a return had not been made and a transcript had not been filed within the time. The language-should therefore be construed in connection with those facts. In Owings v. Tiernan's Lessee, 10 Pet. 447, and Van Rensselaer v. Walls, 7 How. 784, leave was given to docket the cause after the term, when the transcript had been filed in time, but through inadvertence a fee bond had not been given and there had not been in the meantime a motion to docket and dismiss. That is this case. . . . If a return is made and the transcript deposited in the clerk’s office in time, our jurisdiction is kept alive. The docketing of the cause after that is mere procedure, and if unreasonably delayed, the parties may be subjected to the consequences of a failure to prosecute a suit, which rest largely in the discretion of the court, when not provided for by rules. Rule 9 is of that
class.”
In the present case, although the transcript of the record in No. 181 was filed and the case was docketed on October 26, 1885, no motion to dismiss was made until the present term; and, under the foregoing views, we are of opinion that the appeal of Richardson and Day from the decree of October 8, 1883, cannot be dismissed on the ground that the case was not actually docketed during October term, 1884.
One ground urged for dismissing the appeal of Richardson and Day from the decree of October 8, 1883, is that, although that appeal was allowed by an order of court, made in open court on the 17th of November, 1883, at the same term at which the decree of October 8, 1883, was entered, yet the bond given to perfect such appeal was approved by the district judge on November 28,1883, apparently out of court, although led in the court on that day; and that, under these circumstances, a citation to the appellees was necessary, and none appears ever to have been issued.
As the appeal in question was allowed in open court, during
VOL. CXXX—8 p. 114the term at which the decree appealed from was rendered, and that appeal was perfected by the filing in due time of a bond duly approved, and the transcript of the record was, as we have held, duly lodged in this court at the next ensuing term thereof, namely, October Term, 1884, in such manner as to give this court jurisdiction of the case, no citation'was necessary, unless the bond was accepted after the term at which the appeal was allowed. In the present case, it does not appear that the appeal bond was accepted in open court, or at or during the term at which the appeal was allowed; and a citation would seem to have been necessary. Sage n . Hailroad Co., 96 IT. S. 712, 715; Hewitt v. Filbert, 116 IT. S. 142, 144 ; Brown v. McConnell, 124 U. S. 489, 491.
But, as to a citation, this case falls within the ruling in Dodger. Knowles, 114 U. S. 430, 438, where it is said: “The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for the due prosecution of the appeal. The citation, if security is taken out of court, or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal allowed in open court, and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished; and this, whether the motion was made after the expiration of two years from the rendition of the decree or before.”
In Hewitt v. Filbert, (supra,) it is said (p. 144): “The allowance by the court in session before the end of the term at which the decree was rendered, and wThen both parties are either actually or constructively present, is in the nature of an adjudication of appeal, which, if docketed here in time, gives this court jurisdiction of the subject matter of the appeal, with power to make all such orders, consistent with the practice of courts of equity, as may be appropriate and necessary for the furtherance of justice.”
But the issuing of a citation may be waived by the appeh p. 115lees; and a general appearance by them is a waiver of a citation. Alviso v. United States, 5 Wall. 824; Sage v. Railroad Co., 96 U. S. 712, 715. In No. 181 a general appearance for the appellees, T. W. Ferry, Hodgden, Elwell, Nims and E. P. Ferry, was entered in this court on January 11, 1889. As to John Bower & Co. and John F. Betz no general appearance for them has been entered in No. 181, but only, on January 14,1889, an appearance specially for the making of the motion by them. This is not a waiver of a citation.
Under these circumstances, a citation will be issued by this court, on the appeal in No. 181 by Richardson and Day from the decree of October 8, 1883, to the appellees in that appeal who have not entered here a general appearance in No. 181, returnable at the next term of this court, unless the issuing of such citation shall be duly waived on the part of such appellees.
It is also urged, in the motion made by Thomas W. Ferry and others to dismiss the appeal in No. 181 from the decree of October 8, 1883, that this court has no jurisdiction of it, because the amount involved is not more than $5000. The ground urged is, that the amount involved, so far as that appeal by Richardson and Day is concerned, is only $2173.91, which is the amount that Day, as assignee of Richardson, was directed to pay into court as having been overpaid on his claim.
It appears by the master’s report that he disallowed the claim of Richardson as pledgee or purchaser of 400 bonds other than the 200 bonds the claim to which was allowed to Richardson. The amount of money involved in the claim of Richardson and Day to these 400 bonds largely exceeds the sum of $5000. This claim is fairly brought up by their appeal rom the decree of October 8, 1883, because that decree contains an express provision “ that the decree of May 3, 1883, entered herein, shall stand ratified and confirmed, except as e same is changed and modified by this decree.” Moreover, the Circuit Court, by reason of the petition of io les and Stevens for a rehearing, and by reason of the re earing which was had, did not lose its hold upon the fund 0 e distributed, nor part with its control of the cause, until p. 116the decree of October 8, 1883, was made, so far as claims against the fund created by the sale of the mortgaged property were concerned. That decree contained a provision that persons having Claims against such fund, whether evidenced by bonds, coupons, or otherwise, should present the same to the court w’ithin five days from the date of that decree, and that, in default thereof, the clerk should distribute to the parties the moneys in his hands.
These provisions save the appeal of Richardson and Day from the decree of October 8, 1883, as to amount, and enable them to have adjudicated by this court, on the hearing of that appeal, at least their claim in respect of the 400 bonds not allowed to them.
It is also objected, on the motion to dismiss made by Thomas W. Ferry and others, that, in the order of November 17,1883, allowing an appeal to Richardson and Day from the decree of October 8, 1883, the appellees are not named, but it is stated only that “ the other parties of said cause, original and intervening, (as appearing in the said final decree,) ” are “ appellees.” But the bond on such appeal, filed November 28, 1883, is given to the clerk of the Circuit Court for the use and benefit of twenty-five appellees, naming them, and among them are by name the five appellees by whom the motion on that ground is made. We think the objection is not a good one.
It results from, these vieivs that the appeals in No. 947, No.
1027 and No. 1074 must be dismissed j that the appeal in No. Vblfrom the decree of Hay 3,1883, must be dismissed', ana that the motion to dismiss the appeal of Richardson and Day, in No. 181, from the decree of October 8, 1883, must be granted, unless the appellants therein shall procure to be issued and served on the appellees therein a citation from this court, in the terms before set forth, returnable at the next term thereof, provided the issuing and service of such citation shall not be duly waived; and it is ordered that such citation shall issue, if a reguest therefor shall be filed with the clerk.
As Richardson has died since the day these motions were argued, the order to be made will be entered nunc pro tunc, as of that day, February 4, 1889.