« ForrigeFortsett »
know exactly what the product is which
I would call attention particularly to
broad as the ones now in suit, and a third claim for "a semisolid hydrogenized oil" was added by amendment. All of the claims were rejected, the examiner saying:
"The composition of lard and of cottonseed oil as to the glycerides olein and stearin that they contain is well known. To make a product from cottonseed oil that shall simulate lard, the content of stearin should be increased. [Referring to patents.] It is thought, therefore, that if the problem of simulating lard from cottonseed oil were  presented to an oil chemist, an incom
Q. 63. Does Normann specify any-plete hydrogenization of the cottonwhere in his patent any of the purposes for which his patents are intended?
A. He does not. He says nothing in the patent as to what these products should be used for. The presumption is that they might be used for any purpose for which fats of that general character could be utilized. They might be  used for making candles; they might be used for soaps; they might be used for edible purposes.
By the passages I have read he has very carefully specified what the product is, so that any chemist would know for what particular purposes it might be use
Q. 64. In the process of hydrogenation as described in the Normann patent from which you made citations, that is, the British patent No. 1515 of 1903,-what would your conclusion be as to the edibility of the resultant product when the material hydrogenated was among those suggested by him, olive oil?
A. If an edible olive oil was started with, one would certainly obtain an edible hydrogenated product.
It is in evidence that this method, shown by Normann, is a practicable one, and may be used for the making of edible food products of the kind here involved.
With the knowledge disclosed in the Normann patent conclusively presumed to be known by the patentee, was it invention to apply the known process to vegetable oils? In this connection the history of the application for the patent in suit in the Patent Office is interesting and instructive. It is true that claims 1 and 2 were finally allowed, and the patentee is entitled to the presumption which arises from the granting of them But it appears in the history of the application for the Burchenal patent, found in the record, that, as originally presented, it contained two claims not so
seed oil would at once suggest itself
Replying to the communication of the
It is true, as the circuit court of appeals states in its opinion, that the applicant never did acquiesce in the examiner's action rejecting his claims, and finally obtained what he had in the first place asked for.
This record establishes that it was known before Burchenal took up the subject that a vegetable oil could be changed into a semisolid, homogeneous substance by a process of hydrogenation arrested before completion, and that it might be
edible. This much of the art was public,
HENRY S. DE REES, Appt.,
DAVID COSTAGUTA, Marcos A. Algiers, Alejandro Sassoli, Eugenio Ottolenghi, Individually and as Copartners in Business Composing the Copartnership of David Costaguta & Company, Renado Taffell, and the American-European Trading Corporation, Appellees.
(See S. C. Reporter's ed. 166-174.)
Appeal - from district court-jurisdiction below.
1. A judgment of a Federal district court can be reviewed by direct appeal to the Federal Supreme Court in a case in which there is a contention that no valid service of process has been made upon the defendant, and that the judgment was rendered without jurisdiction over the person.
[For other cases, see Appeal and Error, 895-
2. The jurisdiction of a Federal district court as a Federal court is not presented in such a way as to authorize an appeal directly to the Federal Supreme Court, where the question of jurisdiction presented and decided turns upon questions of general law applicable to actions brought in other jurisdictions.
PPEAL from the District Court of the United States for the Southern District of New York to review a decree which set aside service by publication upon nonresident defendants, and dismissed the bill, in a suit to enforce an alleged lien upon property within the district. Dismissed for want of jurisdiction.
The facts are stated in the opinion. Messrs. Marion Erwin and Frederick M. Czaki submitted the cause for appellant.
Mr. Walter H. Merritt submitted the cause for appellees. Mr. A. Delafield Smith was on the brief.
Mr. Justice Day delivered the opinion of the court:
The appellant, plaintiff below, a resident and citizen of the state of New Jersey, filed a bill of complaint against David Costaguta, Marcos A. Algiers, Alejandro Sassoli, Eugenio Ottolenghi, individually and as copartners composing the firm of David Costaguta & Company, asserting that they, and each of them, were aliens, and residents of the Republic of Argentine, South America. The bill joined as defendants Renado Taffell, a British subject, resident of New York and the southern district thereof, and the American-European Trading Corporation, or
[For other cases, see Appeal and Error, 895-ganized under the laws of New York. 914, in Digest Sup. Ct. 1908.] Appeal from district court - jurisdiction below.
3. A decree of a Federal district court
Note. On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741; B. Altman & Co. v. United States, 56 L. ed. U. S. 894; and Berkman v. United States, 63 L. ed. U. S. 877.
The bill sets forth at length a contract whereby it is alleged that a copartnership was formed between the plaintiff and David Costaguta & Company for the buying and selling of hosiery. The bill alleges that to carry the contract into effect a place of business was established in New York city; that disagreements arose between the parties; that plaintiff elected to terminate the contract and demanded a liquidation of the merchandise and an ac
The district judge, after entering the decrees of dismissal, made a certificate as follows:
"I hereby certify that said decrees were entered solely because the case as made by the bill did not set forth a legal or equitable claim to or lien on the property in the district, of which this court would have jurisdiction within the meaning of § 57 of the Judicial Code, or in which this court could render a judgment otherwise than a judgment in personam, against the nonresident aliens who appeared specially and objected to the jurisdiction of the court."
counting; that the firm of David Costa- | This resulted in the dismissal of the guta & Company caused the American- plaintiff's bill by final decree, and the European Corporation to be organized case was brought here by the plaintiff under the laws of New York, and that under § 238 of the Judicial Code, upon said firm caused certain assets of the co- the question of jurisdiction of the partnership to be transferred to the cor- court. poration in fraud of the plaintiff, and which assets, it was alleged, were within the territorial jurisdiction of  the southern district of New York. Plaintiff prayed a dissolution of the alleged copartnership; the liquidation of the property thereof; that the nonresident defendants account for their acts and transactions, and that it be established what sum, if any, remained due to the plaintiff; that the plaintiff be decreed to have a lien upon all of the property of the defendants and on the property and assets of the AmericanEuropean Trading Corporation; that a receiver pendente lite be named. An order was prayed for the delivery of the property to the receiver, and an injunction to restrain its transfer or disposition. A temporary restraining order was asked, pending the hearing and the return of the rule nisi, prohibiting in any manner or form interference with the property, or removing the same from the jurisdiction of the court. An order was issued requiring the defendants to show cause why such receiver pendente lite should not be appointed, and the defendants required to transfer the property to such receiver, and enjoining them from otherwise transferring the same. The subpoena and order for the rule were served on the resident defendants American-European. Trading Corporation and Taffell. Plaintiff then procured an order for service upon the nonresident defendants by publication under § 57 of the Judicial Code [36 Stat. at L. 1102, chap. 231, Comp. Stat. § 1039, 5 Fed. Stat. Anno. 2d ed. p. 525]. The nonresident defendants filed a special appearance for the purpose of asking the court to quash and set aside the order for service by publication, and for an order requiring the plaintiff to show cause why an order should not be made, vacating and setting aside the service by an inhabitant of or found within the said publication, and also to vacate, quash, and district, or shall not voluntarily appear set aside certain alleged service on an thereto, it shall be lawful for the court to agent of the firm in the southern district make an order directing such absent deof New York. A motion was also made fendant or defendants, to appear, plead, anby the American-European Trading Cor-swer, or demur by a day certain to be desporation and Taffell by special appear- such absent defendant or defendants, if ignated, which order shall be served on ance, for the purpose of opposing the jurisdiction. The district court denied the the person or persons in possession or practicable, wherever found, and also upon plaintiff's motion for an injunction and charge of said property, if any there be; receiver, and granted the nonresident or where such personal service upon such  defendants' motion to vacate absent defendant or defendants is not practhe order for service by publication. ticable, such order shall be published in
The judge also delivered an opinion, which is in the record, holding that, under the terms of the contract, the plaintiff had no right in the assets as such, and no partner's lien upon the property, but was confined to his rights in personam against the firm, and that, therefore, there could be no service by publication under § 57 of the Judicial Code. That section is a re-enactment of § 8 of the Act of March 3, 1875 (18 Stat. at L. 472, chap. 137). It provides for service by publication when, in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon the title to real or personal suit is brought, one or more of the deproperty within the district where such fendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto.1
1 Section 57. "When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be
Section 238 of the Judicial Code pro- | 228 U. S. 137, 57 L. ed. 768, 33 Sup. vides that, the case  being one Ct. Rep. 197. in which the jurisdiction of the court is in issue, that question shall be certified to this court.
The appellees challenge the jurisdiction of this court to entertain this appeal on the ground that the case does not present a jurisdictional issue properly reviewable by this court.
That the question of the adequacy of the allegations of the bill to justify the relief sought does not present a jurisdictional question was held in Smith v. MeKay, 161 U. S. 355, 40 L. ed. 731, 16 Sup. Ct. Rep. 490; Illinois C. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Rep. 251; Louisville & N. R. Co. v. Western U. Teleg. Co. 234 U. S. 369, 372, 58 L. ed. 1356, 1358, 34 Sup. Ct. Rep. 810; R. J. Darnell v. Illinois C. R. Co. 225 U. S. 243, 56 L. ed. 1072, 32 Sup. Ct. Rep. 760; Public Service Co. v. Corboy, 250 U. S. 153, 162, 63 L. ed. 905, 909, 39 Sup. Ct. Rep. 440.
 Since the decision of Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214, it has been the accepted doctrine that where there is a contention that no valid service of process has been made upon the defendant, and the judgment is rendered without jurisdiction over the The opinion of the court below, read in person, such judgment can be reviewed connection with the certificate, shows that by direct appeal to this court. This it was held that the contract set up in the principle was restated and previous cases cited as late as G. & C. Merriam Co. v. Saalfield, 241 U. S. 22, 26, 60 L. ed. 868, 871, 36 Sup. Ct. Rep. 477.
bill gave no lien upon or right in rem in the assets sought to be reached within the district. The question was presented, the court, in the exercise of jurisdiction, after an examination of the contract set forth in the bill, and a consideration of its terms, determined it  upon prin ciples which would have been equally applicable had the question been presented in other jurisdictions. Its decision, therefore, did not involve the jurisdiction of the Federal court as such, which, it is settled, is required in order to justify a direct appeal to this court.
It is equally well settled that where the question of jurisdiction presented and decided turns upon questions of general law, determinable upon principles alike applicable to actions brought in other jurisdictions, the jurisdiction of the court as a Federal court is not presented in such wise as to authorize the jurisdictional appeal directly to this court; and the question must be decided as other questions are, by the usual course of appellate procedure, giving review in the circuit In Chase v. Wetzlar, 225 U. S. 79, 56 court of appeals. Louisville Trust Co. v. L. ed. 990, 32 Sup. Ct. Rep. 659, the Act Knott, 191 U. S. 225, 48 L. ed. 159, 24 of March 3, 1875, now § 57 of the Judicial Sup. Ct. Rep. 119; Bache v. Hunt, 193 Code, was involved, and there was an atU. S. 523, 48 L. ed. 774, 24 Sup. Ct. Rep. tempt to have service on alien defend547; Fore River Shipbuilding Co. v. ants by publication under the provisions Hagg, 219 U. S. 175, 55 L. ed. 163, 31 of the statute. The issue made was as to Sup. Ct. Rep. 185; Scully v. Bird, 209 whether there was property of the deU. S. 481, 485, 52 L. ed. 899, 901, 28 Sup fendants within the jurisdiction of the Ct. Rep. 597; Bogart v. Southern P. Co. court. That issue was held to present a such manner as the court may direct, not triet; and when a part of the said real or less than once a week for six consecutive personal property against which such proweeks. In case such absent defendant shall ceedings shall be taken shall be within annot appear, plead, answer, or demur within other district, but within the same state, the time so limited, or within some further such suit may be brought in either district time, to be allowed by the court, in its dis-in said state: Provided, however, That any cretion, and upon proof of the service or defendant or defendants not actually perpublication of said order and of the personally notified as above provided may, at formance of the directions contained in the same, it shall be lawful for the court to ment in any suit mentioned in this section, any time within one year after final judg entertain jurisdiction, and proceed to the hearing and adjudication of such suit in enter his appearance in said suit in said the same manner as if such absent defend-district court, and thereupon the said court ant had been served with process within shall make an order setting aside the judg the said district; but said adjudication ment therein and permitting said defendshall, as regards said absent defendant or ant or defendants to plead therein on paydefendants without appearance, affect only ment by him or them of such costs as the the property which shall have been the court shall deem just; and thereupon said subject of the suit and under the jurisdic-suit shall be proceeded with to final judg tion of the court therein, within such dis- ment according to law."
question of jurisdiction properly reviewable in this court under § 238. In the case now presented no question is made as to the presence of property in the district. The attempted service was set aside, and the bill dismissed, upon consideration of the allegations of the bill which, it was held, upon application of general principles, did not show that the plaintiff had any lien upon or interest in the property authorizing him to invoke the procedure outlined in § 57 of the Judicial Code.
As to the contention that the whole case is here upon a constitutional question because of the procedure in the court below, § 238 provides that when a case comes here upon a question of jurisdiction, that question alone shall be certified. Moreover, we find no merit in the alleged deprivation of constitutional rights, so as to present questions arising under the Constitution.
It follows that the appeal must be dismissed for want of jurisdiction.
the enforcement of a judgment of a state
[For other cases, see Courts, VI. f, in Digest
when relation express messenger.
3. An express messenger in charge of express matter which a railway company was transporting for the express company in an express car furnished by the railway company under a contract which gave the express company the exclusive privilege of conducting an express business, the railway company to provide the motive power and the train operatives, was on the train as an employee not of the railway company, but of the express company, by which he was employed, directed, and paid, and at
whose will he was to continue in service or
[For other cases, see Master and Servant, I. a,
employers' liability - express company not carrier by railroad limiting liability. 4. A common carrier by express which
 WELLS FARGO & COMPANY, Pe- neither owns nor operates a railway, but
which, under contract with a railway company, conducts an express business over such railway, the railway company furnishing the express car, the motive power, and the train operatives, and the express company paying for this service, is not a "common carrier by railroad" within the meaning of the Employers' Liability Act of April 22, 1908, and is, therefore, not affected by the approvision of § 5 of that act, invalidating any contract whereby a carrier subject to that act exempts itself from any liability under it.
1. A decision of a circuit court of peals holding the bill insufficient, and for that reason alone reversing the decree below by which such bill was held good on demurrer, and remanding the cause, is not final, but leaves the district court free, in its discretion, to allow an amendment to the bill, curing the defect.
[For other cases, see Appeal and Error, IX.
ing proceedings in state courts.
[For other cases, see Master and Servant, II. a. 2, a II. a, 2, c, in Digest Sup. Ct. 1918 Supp.]
5. An express messenger in charge of express matter which a railway is transporting under a contract with the express company may validly stipulate, as a conNote.-On appellate jurisdiction of sustaining a similar relation to the Federal Supreme Court over circuit company-see notes to Denver & R. G. courts of appeals-see notes to Bag- R. Co. v. Whan, 11 L.R.A. (N.S.) 432; ley v. General Fire Extinguisher Co. 53 Coleman v. Pennsylvania R. Co. 50 L. ed. U. S. 605, and St. Anthony's L.R.A.(N.S.) 432, and Pittsburg, C. C. Church v. Pennsylvania R. Co. 59 L. ed. & St. L. R. Co. v. Kinney, L.R.A.1917D, U. S. 1119. 648.
On constitutionality, application, and effect of Federal Employers' Liability Act-see notes to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38, and Seaboard Air Line R. Co. v. Horton, L.R.A.1915C, 47.
As to contract exempting railroad company from liability for negligent injury to sleeping car employee, or others
On conclusiveness of prior decisions on subsequent appeals-see note to Hastings v. Foxworthy, 34 L.R.A. 321.
On right to amend pleadings after final decision on appeal-see note to Todd v. Bettingen, 18 L.R.A. (N.S.) 263.
On validity of agreement to restrict carrier's liability, generally-see notes to Missouri P. R. Co. v. Ivey, 1 L.R.A.