starboard side. The three persons who constituted the schooner's captain and crew were thrown into the water, but were rescued, and John B. Lawson, who was a passenger, was severely injured. The District Judge found the steamship solely in fault, and decreed against her for the value of the schooner and her cargo, and awarded damages to Lawson, the passenger who was injured. There are only two matters found by the District Judge which are controverted on this appeal. The first is whether or not the red light, which it is proved the sail vessel had in her port rigging, was bright enough to be seen at a sufficient distance to give notice to the steamship in time to avoid her, and the other is at what distance the sail vessel or her red light was actually seen, or should have been seen, by those navigating the steamship. On both these matters of fact the learned District Judge found for the schooner. Although there was a conflict of testimony, there was ample proof to sustain the libelant's contention that the schooner's red light was visible if the lookout of the steamship had performed his duty at a distance sufficient to have enabled the steamship to have avoided the schooner if she had ported instead of starboarding and attempting to cross the schooner's bow. After a consideration of the testimony, aided by the argument of counsel, we are satisfied the conclusions of the learned District Judge were right, and that the decree should be affirmed. TOEG et al. v. SUFFERT. (Circuit Court of Appeals, Ninth Circuit. February 1, 1909.) * No. 1,534. APPELLATE JURISDICTION 1. COURTS (8 405*) – CIRCUIT COURTS OF APPEALS FROM UNITED STATES COURT IN CHINA-MODE OF REVIEW. Act June 30, 1906, c. 3934, 34 Stat. 814 (U. S. Comp. St. Supp. 1907, p. 797), creating a United States Court for China, provides, in section 3, that "appeals shall lie from all final judgments or decrees of said court to the United States Circuit Court of Appeals of the Ninth Judicial Circuit, and thence appeals and writs of error may be taken from the judgments or decrees of the said Circuit Court of Appeals to the Supreme Court. Said appeals or writs of error shall be regulated by the procedure governing appeals within the United States from the District Courts to the Circuit Courts of Appeal and from the Circuit Courts of Appeal to the Supreme Court * * respectively." Held, that such act recognizes the distinction between cases at law and in equity and admiralty, and requires the appellate procedure to conform to that of the Circuit and District Courts, and that a judgment of such court in an action at law is reviewable only on writ of error. [Ed. Note. For other cases, see Courts, Dec. Dig. § 405.*] 2. COURTS (8 356*)-UNITED STATES COURTS-PROCEDURE-APPEAL AND ERROR. Where it is sought to review an action at law by appeal instead of writ of error, the Circuit Court of Appeals will dismiss the appeal on its own motion, though appellee makes no appearance. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1001, 1010; Dec. Dig. 356.*] Appeal from the United States Court for China. Jernigan & Fessenden and Chickering & Gregory, for appellants. Before GILBERT, ROSS, and MORROW, Circuit Judges. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes GILBERT, Circuit Judge. The appellants in this case seek to review by appeal a judgment of the United States Court for China rendered in an action at law which they brought against the appellee to recover upon a promissory note. Section 3, Act June 30, 1906, c. 3934, 34 Stat. 815 (U. S. Comp. St. Supp. 1907, p. 798), creating a United States court for China, provides: "That appeals shall lie from all final judgments or decrees of said 'court to the United States Circuit Court of Appeals of the Ninth Judicial Circuit, and thence appeals and writs of error may be taken from the judgments or decrees of the said Circuit Court of Appeals to the Supreme Court of the United States in the same class of cases as those in which appeals and writs of error are permitted to judgments of said Court of Appeals in cases coming from District and Circuit Courts of the United States. Said appeals or writs of error shall be regulated by the procedure governing appeals within the United States from the District Courts to the Circuit Court of Appeals, and from the Circuit Court of Appeals to the Supreme Court of the United States, respectively, so far as the same shall be applicable; and said courts are hereby empowered to hear and determine appeals and writs of error so taken." It is apparent from a reading of this section that it was the intention of Congress to recognize the distinction between cases at law and cases in equity and admiralty, and to provide that the mode of procedure by which the appellate jurisdiction of this court may be invoked shall conform in all respects to the statutes and rules of court governing appeals and writs of error from the District and Circuit Courts. The statute is not unlike the statute which was construed in Chase v. United States, 155 U. S. 489, 15 Sup. Ct. 174, 39 L. Ed. 284. The case could have been brought to this court only upon writ of error. For want of jurisdiction we are required to dismiss the appeal, notwithstanding that the appellee has made no motion nor appearance herein. Jones v. La Valette, 5 Wall. 579, 18 L. Ed. 550; Generes v. Campbell, 11 Wall. 193, 20 L. Ed. 110; Bevins et al. v. Ramsay et al., 11 How. 185, 13 L. Ed. 657; Behn, Meyer & Co. v. Campbell & Go Tauco, 200 U. S. 611, 26 Sun. Ct. 753, 50 L. Ed. 619. The appeal is dismissed. UNITED STATES v. SIOUX CITY STOCK YARDS CO. No. 2,935. 1. TRIAL (8 395*) – FINDING BY COURT-TRIAL BY COURT "SPECIAL FINDING" UNDER REV. ST. §§ 649, 700, DEFINED. The special finding contemplated by Rev. St. §§ 649, 700 (U. S. Comp. St. 1901, pp. 525, 570), is a specific statement of those ultimate facts upon which the law must determine the rights of the parties. It cortesponds to the special verdict of a jury, is equally specific and responsive to the issues, and is spread at large upon the record, as part thereof, in like manner as is such a verdict. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 927-934; Dec. Dig. § 395.* For other definitions, see Words and Phrases, vol. 7, p. 6576.] 2. TRIAL (§ 395*)-OPINION OF TRIAL JUDGE-NOT A "SPECIAL FINDING." An opinion of the trial judge setting forth the reasons for his decision in an action at law tried by a Circuit Court without the intervention of a jury cannot be regarded as a special finding within the meaning of Rev. St. §§ 649, 700 (U. S. Comp. St. 1901, pp. 525, 570). [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 927-934; Dec. Dig. § 395.*] (Syllabus by the Court.) *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes In Error to the Circuit Court of the United States for the Northern District of Iowa. For opinion below, see 162 Fed. 556. Frederick F. Faville, U. S. Atty., and James A. Rogers, Asst. U. S. Atty. William Milchrist and George C. Scott, for defendant in error. Before VAN DEVANTER, Circuit Judge, and RINER and AMIDON, District Judges. VAN DEVANTER, Circuit Judge. This was a civil action to recover a penalty alleged to have been incurred under section 3 of the act of June 29, 1906, c. 3594, 34 Stat. 608 (U. S. Comp. St. Supp. 1907, p. 919), known as the "28-Hour Law." The answer was practically a general denial, and the issues of fact were determined by the Circuit Court without the intervention of a jury, pursuant to a written stipulation of the parties. The trial resulted in a judgment for the defendant, which necessarily imported, although it did not expressly contain, a finding in the defendant's favor. Error was originally assigned upon several rulings of the trial court, but counsel for the government concede, in their reply brief, that they must rely upon the single contention that what they assume was a special finding is not sufficient to support the judgment. Unfortunately for this contention, however, there was no special finding. That which counsel assume was such is not so designated in the record, was not so intended by the trial court, and cannot be so regarded by this court. It is an extended opinion (reported 162 Fed. 556) in which the trial judge refers to the issues formed by the pleadings, portions of the evidence, the statute, and the contentions advanced by counsel, and then discursively disposes of those contentions, and concludes that the penalty sought to be recovered had not been incurred by the defendant. Repeated decisions of the Supreme Court, as also of this court, make it altogether plain that such an opinion is not a special finding within the meaning of the statute. (Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570]), and cannot be resorted to for the purpose of controlling, modifying, or supplementing the finding otherwise disclosed or imported by the record. British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147; Saltonstall v. Birtwell, 150 U. S. 417, 14 Sup. Ct. 169, 37 L. Ed. 1128; Stone v. United States, 164 U. S. 380, 17 Sup. Ct. 71, 41 L. Ed. 477; York v. Washburn, 64 C. C. A. 132, 129 Fed. 564; Hayden v. Ogden Savings Bank, 85 C. C. A. 558, 158 Fed. 90. The special finding contemplated by the statute is a specific statement of those ultimate facts upon which the law must determine the rights of the parties. It corresponds to the special verdict of a jury, is equally specific and responsive to the issues, and is spread at large upon the record, as part thereof, in like manner as is such a verdict. Burr v. Des Moines Co., 1 Wall. 99, 102, 17 L. Ed. 561; Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; St. Louis v. Ferry Co., 11 Wall. 423, 428, 20 L. Ed. 192; Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113; Minchen v. Hart, 18 C. C. A. 570, 72 Fed. 294; Anglo-American Co. v. Lombard, 68 C. C. A. 89, 102, 132 Fed. 721; United States v. Cleage (C. C. A.) 161 Fed. 85. As there was no special finding, and as it is only when there is such a finding that this court can consider the sufficiency of the facts found to support the judgment (Dickinson v. Planters' Bank, 16 Wall. 250, 257, 21 L. Ed. 278), it follows that the single contention now relied upon relates to a matter which it not open to review upon this record. And, this being so, we express no opinion upon the propositions of law advanced by the trial judge in support of his conclusion. The judgment is affirmed. NEIDER et al. v. HIGGIN MFG. CO. (Circuit Court of Appeals, Sixth Circuit. December 18, 1908.) No. 1,805. PATENTS (§ 328*)-ANTICIPATION-TUFTING BUTTONS FOR CUSHIONS. The Neider patent, No. 630,553, and the Marggraff patent, No. 695,468, both for improvements in tufting buttons for cushion seats, consisting of strengthening the base of the prongs which are passed through the material and clinched, so that the bending point, when clinched, will be at some distance from the head of the button where the metal has not previously been weakened by bending, conceding that the improvements involve invention, are void for anticipation by the Jensen patent No. 377,029, for a paper fastener. [Ed. Note.-For other cases, see Patents, Dec. Dig. § 328.*] Appeal from the Circuit Court of the United States for the Eastern District of Kentucky. W. F. Murray, for appellants. Wm. H. Fisher and F. A. Faber, for appellee. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. LURTON, Circuit Judge. This is a bill to restrain infringement of patent No. 630,553, granted to Fred A. Neider, and of patent No. 695,468, granted to Frederick Marggraff, both assigned to the complainant corporation. Both patents are for improvements in tufting buttons for cushion seats. Both are clinching buttons, and consist of a head with two outwardly projecting metal prongs which are passed downward through the material forming the cushion and are then bent back over the back, or under, side of the cushion. Such clinching buttons were well known before the Neider patent, and, as his specifications state, had been stamped out of sheet metal; the prongs being of uniform width from the back to the tapered point. A well-known form of such button, prior to Neider's patent, is shown in the Pitner button; a side and perspective view being seen in figures 1 and 2, set out below. Similar views of the improved Neider button are shown in figures 3 and 4, all being taken from correct representations in brief of the solicitors for appellees. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |