"The Canal & Claiborne Streets Railroad Company, made garnishee herein, now comes into court, and for answer to the interrogatories propounded, by and through its president, E. J. Hart, says: To first interrogatory, No; except taxes of the year 1882.' To second interrogatory, No; except taxes of the year 1882.' To third interrogatory, 'No.' And for a full and correct statement of the facts upon which the above answers are made, respondent, further answering, says that the privilege of the right of way of the said Canal & Claiborne Streets Railroad Company was granted for and in consideration of a bonus of two-sixteenths of a cent per passenger, payably monthly; the rate of fare is five cents per passenger; that the total receipts of the com pany from first March, 1870, to fifteenth March, 1882, are: For the year 1870, $118,515 20 152,098 75 299. 144,373 05 136,656 60 115,625 40 100,095 95 96,101 60 89,701 90 90,205 20 89,267 25 95,269 45 98,591 70 20,889 60 $1,347,391 65 "Your respondent further says that the receipts from the fifteenth March, 1872, to the fifteenth March, 1882, amount to the sum of $1,046,918. Your respondent, further answering, says that he is informed and believes that the bonus was in lieu and place of the license; that the city could not claim both; that it has ceased to demand the bonus, but has imposed a license on the company, and the company has paid the same in 1880, based on the receipts of 1879; in 1881, based on the receipts of 1880; and in 1882, based on the receipts of 1881, viz., $375 each year, making in all $1,125, thereby releasing the company from any obligation to pay any bonus for said years. And respondent further says that he is informed and believes that any claim for the bonus based on the receipts of preceding years is prescribed. Respondent further swears that the said Canal & Claiborne Streets Railroad Company has already been garnished in the suits of Myra Clark Gaines, Samuel Smith, Subrogee, v. City of New Orleans, No. 2,695 of the United States circuit court, and of Charles Parsons v. City of New Orleans, No. 8,088 of same court, and that, should judgments be rendered against said company, they will amount to more than the company can in any event owe. *Respondent further? says that the company has claims against the city of New Orleans for damages caused by overflows in 1869, 1871, and 1881, and against which it should have been protected by the city; and that the amount due for said damages exceeds any amount which would be due for the bonus, if any was due. For this and other reasons the city has not required the bonus." On March 30, 1882, the plaintiff, according to the practice in Louisiana, filed a traverse of the answers, and the court made an order, which set forth that, on motion of the plaintiff, and on suggesting to the court that the answers were false, and that the corporation was indebted to the city in larger suns than stated in the answers, and that the plaintiff traversed the answers, in law and in fact, it was ordered that the corporation show cause, on April 5, 1882, why the interrogatories should not be taken for confessed, and why judgment should not be rendered against it for the amount of the plaintiff's claim, with interest and costs. On March 31, 1882, a copy of this order was served on the corporation. On the fifth of April, 1882, a stipulation in writing between the plaintiff and the city was filed, agreeing that all sums paid by the corporation should be deposited in the registry of the court, to await the decision whether the money was subject to seizure under the plaintiff's execution. On the same day, the traverse to the answer came on for trial before a jury. The record states that, "after hearing the pleadings, the evidence and arguments of counsel, and receiving a charge from the court," the jury found verdict for the plaintiff against the corporation, as garnishee, "for the following sums," naming 13 several sums, with interest on each, at 5 per cent. per annum, from a specified date, being a total of $33,684.74, "with interest on the various sums, from dates as above stated, until payment." On this verdict, and in accordance with it, a judgment was, on the same day, rendered, that the corporation, garnishee, be condemned to pay to the plaintiff $33,684.74, with interest at the rate of 5 per cent. per annum "on the following sums, from the following dates," specifying as in the verdict, until paid, with costs; and ordering that the amount, with interest, be deposited in the registry of the court, subject to the terms of the foregoing stipulation. The judgment was, on the nineteenth of April, 1882, amended nunc pro tunc, so as to order that the garnishee pay that amount, with interest, into the registry of the court, "subject to the rights of all parties concerned." The entire judgment was signed April 26, 1882. The corporation made a motion for a new trial, which was refused on April 21, 1882. It also filed and made a motion that the proposed judgment written upon the minutes and record against it as garnishee be expunged therefrom, and be never signed and made operative, and that any judgment by reason of the verdict be arrested, for 10 specified reasons. This motion was overruled on April 26, 1882, and then the judgment was signed. To reverse this judgment the corporation has brought a writ of error. The record contains a bill of exceptions, which states that at the same term at which all the foregoing proceedings took place, and before any final judgment against the corporation as garnishee had been signed and become final, the corporation made the motion in writing for arrest of the judgment, and both parties appeared, and the court overruled and refused the motion, and the corporation excepted to the ruling and judgment of the court in that particular. It is assigned for error that the circuit court never acquired jurisdiction of the original suit against the city. The petition by which the original suit was commenced in the state court was filed November 4, 1881, and is marked No. 4,414. The citation was issued and served on the city on that day. The plaintiff's petition for removal is entitled in the suit as No. 4,414. It was filed November 5, 1881, and is signed by the attorneys for the plaintiff, and states that the suit was commenced about November -, 1881; "that your petitioner was, at the time of bringing said suit, and is now, a citizen of the state of New York, and a resident thereof;" and "that there is, and was at the time said suit was brought, a controversy therein between your petitioner and the said defendant, the city of New Orleans, who is a citizen of the state of Louisiana, and a resident thereof." It also states that the removal is desired "in pursuance of the act of congress in that behalf provided, to-wit, the Revised Statutes of the United States, § 639, subd. 3;" and that the petitioner "has filed the affidavit required by the statute in such cases." The petition was accompanied by an affidavit, filed therewith, sworn to by the petitioner, in the city of New York, before a commissioner for Louisiana, on the twenty-fifth of October, 1881, in which the petitioner stated that "he is the plaintiff in the case of Judah Hart v. The City of New Orleans, No. 4,414, civil district court, parish of Orleans, state of Louisiana, and that he has reason to believe, and does believe, that from prejudice and local influence he will not be able to obtain justice in said state court." The state court, on consideration of the petition, affidavit, and bond, made an order removing the cause. In the motion to re mand the cause made in the circuit court by the city, one of the grounds of the motion which was overruled was that there was no legal affidavit, because the suit named in it was filed 10 days after the affidavit was made. This ground is urged here, but we do not regard it as of any force. The affidavit sufficiently identified the suit, and was, in this case, as effective for the purposes of the statute as if made after the suit was brought. Besides, the petition for removal made out a case for removal under section 2 of the act of March 3, 1875, (18 St. 470;) and the reference to the prior statute did not impair the efficacy of the facts. Removal Cases, 100 U. S. 457, 471. The absence of an oath to the petition was, at most, only an informality, which could be and was waived by the city. It made no such objection in its motion to remand. This view is in accordance with the ruling in Ayers v. Watson, 113 U. S. 594, 598, S. C. ante, 641, as to modal and formal matters under section 3 of the act. We have considered the question of removal because it goes to the jurisdiction of the circuit court, and is raised for our consideration by the record. The verdict of the jury on the trial of the traverse to the answer was rendered April 5, 1882. No bill of exceptions was taken at the trial. The mo-, tion to expunge the proposed judgment, and to arrest any judgment on the verdict, was not filed till April 21, 1882, and had no more effect than a motion for a new trial, and therefore, under our settled practice, cannot be reviewed here, on this writ of error, although there is a bill of exceptions in regard to it. It is contended that when the fi. fa. was issued against the city there was no law under which a fi. fa. could issue against the city. This point was not taken in the court below. It does not appear in the motion in arrest of judgment, or in the bill of exceptions, or in the assignment of errors accompanying the writ of error. It was a point which should have been raised and saved when the traverse to the answer was tried before the jury. But this was not done. Still, as the garnishment proceedings were based on the fi. fa., it is proper to say that the proceedings in the case were warranted by section 916 of the Revised Statutes, which provides as follows: "The party recovering a judgment in any common-law cause, in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise." That section of the statute was considered by this court in Ex parte Boyd, 105 U. S. 647, and was held to apply to proceedings supplementary to execution, to examine the judgment debtor in regard to his property under a judgment rendered in a common-law cause. We are also of opinion that it covers the proceedings had in this case to reach the property of the city. Those proceedings were authorized by laws of the state of Louisiana in force when section 6 of the act of June 1, 1872, c. 255, (17 St. 197,) now section 916 of the Revised Statutes, was enacted. It is urged that, by section 2 of the act of the legislature of Louisiana, passed March 17, 1870, (Sess. Laws 1870, Extra Sess., Act No. 5, p. 10,) it was made unlawful to issue any*writ of execution or fieri facias, from any of the courts in Louisiana, against the city of New Orleans, to enforce the payment of any judgment for money against that city. But we are of opinion that the provisions of that special act, in reference to judgments against the city of New Orleans, were not adopted by section 916. The meaning of that section is that the remedies, by execution or otherwise, on a judgment in a common-law cause, in a circuit court, shall be the same as were then provided by the laws of the state in respect to judgments in suits of a like nature or class. "Like causes" is the expression. By article 641 of the Code of Practice of Louisiana it was and is provided that, "when the judgment orders the payment of a sum of money, the party in whose favor it is rendered may apply to the clerk and obtain from him a writ of fieri facias against the property of his debtor." It is this provision, and the garnishee proceedings consequent upon it provided by the laws of Louisiana in respect to judgments generally, of a like nature or class with those in the present case, which the act of congress adopted as remedies for the judgment creditor in a commonlaw cause in the circuit court; and such has been the uniform ruling in the circuit court at New Orleans. New Orleans v. Morris, 3 Woods, 115; Hart v. New Orleans, 12 Fed. Rep. 292; New Orleans v. Pickles, decided by Mr. Justice WOODS in 1879, unreported. The exception made by the state as to the city of New Orleans may be of force as to suits in the courts of the state, but it is not an exception which operates proprio vigore in the circuit court. The other assignments of error seek to raise various questions: that the debt of the corporation to the city was part of its public revenues, and not subject to seizure or levy; that the city was not made a party to the garnishee proceedings; that the supplemental petition does not show that the debt to the city is not public property; that there was no issue raised to be tried by a jury; that the character and origin of the indebtedness of the corporation to the city were not shown to be such as would support the judgment against the corporation; and that the interest included in the verdict was improperly allowed and erroneously computed. These questions not having been raised on the trial before the jury, and saved by a bill of exceptions, cannot be considered by this court on a writ of error. The proceedings of record appear to have been entirely regular, and in accordance with the statutes and practice of Louisiana. Judgment affirmed. (115 U. S. 87) WOLLENSAK v. REIHER, PATENT LAW-TRANSOM LIFTERS. Reissued letters patent No. 9,307, dated July 20, 1880, to John F. Wollensak, for improvement in transom lifters, is not infringed by the patent of Frank A. Reiher. Appeal from the Circuit Court of the United States for the Northern District of Illinois. Ephraim Banning, Thos. A. Banning, and L. L. Bond, for appellant. Wm. A. McKenney, for appellee. MATTHEWS, J. This bill in equity was filed by the appellant to restrain the alleged infringement by the defendant of reissued letters patent No, 9,307, dated July 20, 1880; the original patent, No. 136,801, dated March 11, 1873, having been issued to John Wollensak, the appellant, for an alleged new and useful improvement in transom lifters. This appeal is from a decree dismissing the bill for want of equity. The specifications and drawings of the patent are as follows: "Fig. 1 is a perspective view, showing one means for carrying my invention into operation; Fig. 2 is a side elevation of the same; and Fig. 3 is a detached sectional view. Similar letters of reference in the several figures denote the same parts. Transom lifters have heretofore been constructed with a long upright rod or handle, jointed at its upper end to a lifting-arm which extends to, and is connected with, the side or edge of the transom sash. the sash being opened or closed by a vertical movement of the long rod. When thus constructed. the upright rod is liable to be bent by the weight of the transom, owing to the want of support at or near the point of junction between the long rod and the lifting-arm. The object of my invention is to remedy this difficulty; and to such end it consists in providing the proper support, or support and guide, for the upper end of the lifting-rod during its vertical movements and while at rest. This may be accomplished in a variety of ways, one of which I will now proceed to describe in detail, although I wish it clearly understood that I do not limit my invention to this construction, but regard it as covering broadly any construction, combination, or arrangement of parts which shall support the long or operating rod and prevent it from being bent or displaced by the weight of the transom. In the drawings, D is the door; T, the transom sash, pivoted at top, bottom, or middle, as preferred; A, the lifting-arm that connects the sash to the upright rod; U the upright rod, passing through two guides, G, G', one above and one below the point of junction with the lifting-arm; R, a friction roller, secured to the lifting-rod so as to bear against the wall and support said rod at its point of junction with the lifting-arm; n, n, notches cut in the upright rod to receive the end of the set-screw; and s, a set-screw, arranged, in connection with the lower guide and the rod, U, so as to be convenient of operation for the purpose of fixing the transom at any required angle. The upright rod is thus supported at three points, to-wit, above, below, and at the joint where it sustains the weight of the transom. It can also be adjusted and securely fastened so as to open the sash as much or as little as may be desired, and to lock it in that position. "Having thus described my invention, what I claim as new is: (1) The combination, with a transom, its lifting-arm and operating-rod, of a guide for the upper end of the operating-rod, to prevent it from being bent or displaced by the weight of the transom. (2) The roller, R, arranged at the junction of the lifting-arm, A, and upright rod, U, in a transom lifter, sub-g stantially as and for the purpose described. The guide, G', arranged above. |