Specimens of internally-graduated glass-ware manufactured under the' Hobbs patent, and by the defendants in accordance with the Block patent, have been submitted to the inspection of the court as exhibits in the case. The difference, between these specimens is that in the former the graduation marks extend only partly around the glass cup, while in the latter the graduations extend entirely around the cup. In all other respects the specimens, of the two manufactures are substantially alike. In Hobbs' improvement the desired graduations are in the first instance made upon' the face of the plunger, and thereby corresponding graduations are made in the glassware, while in the Block plunger the edges of the rings form the graduations; but the principle of the two plungers is identical, their methods of operation practically alike, and the result substantially the same. The extension of the graduations entirely around' the glass may have its advantage; but if it were conceded that such extension is a patentable improvement upon Hobbs' invention, still this would not justify the defendants in using his invention. Upon the whole, we are of opinion that the infringement complained of is established. Let a decree be drawn in favor of the plaintiffs.
HARRIMAN 'V. THE ROCKAWAY BEACH PIER
(District Court, E. D. HMO York.
Where property was attached upon process issued in an action in pel'lIOnam, the defendant not being found, and the next day the secretary of the corporation defendant appeared and offered to accept service, and a motion before the court to vacate the attachment being demed, the property seized was afterwards released upon a stipulation for its value voluntarily given by the defendant, and the action was then tried, held, that it was not open to the stipulators to say that the court had not, acquired jurisdiction to enter a decree upon the stipulation; that the libellants were entitled to a decree because the marshal's return showed a regular attachment, and the evidence shows that it was made before the appearance of the defendant, and its offer to accept service was made.
In Admiralty. Benedict, Taft <t Benedict, for libellant. Elihu Root, for respondents. BENEDICT, D. J. This is an action in per80nam upon a charterparty. There appears to be no dispute in regard to the liability.
HARRIMAN V. BOOU;WAi'i· :BlUOR PIER CO.
The only question., raised relates to the jurisdiction of the court. The libel wasD.led .on the nineteenth of August, 1$80, and process therein was issued on the satne day. By the terms of the, process the marshal was directed, in case the defendant c.ould not be found within his district, to attach, their goods and chattels within the district, to the amount. sued ·for. ,On the return-day of the process the marshal made return that the, respondent could not. be found, and he had attached the iron pier, and property pertaining thereto, at Rockaway beach, property of the respondents. This was on August 19th, the day the process was issued. A motion was then made on the part of the defendant to vacate the attachment upon two grounds, namely:. that' the iron pier was' not goods and chattels within the meanitig of the,process; and, second, that the defendants could have the exercise of reasonable dilligence on the part of the marshal. The motion was granted to the iron pier upon the ground first above stated. It was denieda.s to the rest of the property.· Thereafter the defendant filed a stipulation to abide by 'and pay the amount' of any ,final decree that might be awarded in the cause,' and 'upon filing ,such a stipulation obtained the charge from custody of the goods and chattels then held in custody by the marshal by virtue of the process. The cause was subsequently tried upon ;pleadings and proofs, when the position was taken that the goods and chattels which the marshal had returned as having been attached by, him on the nineteenth of August, were not, in fact, attached by him until after the twentieth of AUg1.1st, and that inasmuch as on the twentieth of August the defendant, by its secretary, had appeared at the marshal's office and offered to accept service of the process, a subsequent attachment of goods and chattels of the defendant could not confer jurisdiction npon the court. One difficulty with this position is that the jurisdiction of the court does not depend upon the attachment made by the marshal, but upon the stipulation given by the defendant. This stipulation was without qualification. It was given voluntarily, and not in obedience to any order of the court. It was not necessary to the defence of the cause, nor in any way compelled. By virtue of this stipulation the defendant acquired possession of property then in the possession of the marshal. Under such circumstances, I do not see how it can be open to the stipulators upon that stipulation to say that the court has not acquired jurisdiction to enter a decree upon the stipulation.
· See Harriman v. The Rockaway Beach Pier 00. 5 FED.
Nor does it make any difference that at the time of giving the stipu. lation the defendant filed an appearance containing a qualification. Jurisdiction over the parties to the stipulation was acquired by the stipulation given, and not by the appearance ; and, as before stated, the stipulation was without qualification. But if it be open to the defendants, after giving such a stipulation, to deny the jurisdiction of the court over the parties to that stipulation, still the libellants are entitled to a decree, and upon two grounds:
First, because the marshal's return shows a regular attachment of the goods and chattels seized, and it is conceded that such property belonged to the defendant; that return not haVing been set aside by the court, upon motion, is in this stage of the case conclusive to show that the court acquired jurisdiction of such goods and chattels. Second, because the evidence outside of the return shows that the marshal did in fact on the nineteenth of August, IS80, and before the day on which the defendant, by its secretary, appeared at the marshal's office and offered to accept service of the process, attach the goods and chattels of the defendant, which were subsequently released from custody upon the giving of the stipulation to pay the decree.
The question argued in the defendant's brief in regard to the ability of the marshal to find the defendant on the nineteenth of August, when he received the process, is outside the case as presented on the trial. There must, therefore, be a decree for the libellant for the amount of the claim, with interest. The amount of the decree can no doubt be agreed on. If not. let thete be a reference.
IOWA HOMESTEAD CO. V. DES MOINES NAVIGATION, ETC., 00.
'V. DEB MOINES NAVIGATION
(Oircuit Oourt, S. D. IOfIJa.
June 1, 1881.)
JURISDICTION-CONTROVERSY BETWEEN CITIZENS OF THE SAME STATE.
Whenever the sole controversy, in a suit begun in a state court, but subse· quently removed to a federal court, is one between citizens of the same state, the suit will be remanded, upon motion, to the state court from which it was removed.
The parties to a suit brought in a state court to enforce a claim to a large amount of taxes which the complainant alleged it had paid in good faith, and under color of title, upon certain lands, were both citizens of the state in whose court the bill was filed. The bill prayed that the amount found to be due should be charged as a special lien upon the lands,' and further prayed that the lands might be sold to satisfy the Ilame. One Litchfield petitioned the court to be allowed to intervene in the cause, setting up the fact that he was the owner of the lands. His petition was granted; and thereupon, being a citizen of another state, he filed his petition and bond to remove the cause to a federal court. This petition also was granted, and the cause was removed. The complainant appeared, and moved that the cause be remanded. This motion was overruled. The complainant then moved to have the order denying the motion to remand set aside. This motion was also denied. Thereupon, at the suggestion of the court, he dismissed all that part of his bill praying that the amount found due should be charged as a special lien upon the land, and renewed his motion to remand. At this stage of the proceedings the intervenor asked and was allowed to tile a cross-bill aga'ust the original parties to the suit, praying for a decree that the land be declared free and clear of any lien as prayed for by the complainant. A second motion of the complainant to remand was then denied. Subsequently, the complainant, by leave of the court, presents an amendment to his bill, dismissing all claims whatever, except for a judgment against the respondent for the amount of the taxes, and the intervenor also pTesents an amendment to his cross-bill, alleging that by his Qontract with the respondent he has assumed all of said respondent's liability to the complainant for the taxes in question. The complainant once more asks that the cause be remanded. Held, that the federal court no longer has jurisdiction of the suit, as there is now no controversy here except between citizens of the same state. Motion to remand granted. 8.
I t seems that, after the suggestion of the court to dismiss that part of the bill praying that the amount due, etc., had been followed, the court no longer had jurisdiction of the case, and the motion to remand, made at that stage of the proceedings, should have been granted, and the petition of the intervenor to file a cross-bill should have been denied.
SAME-DUAL CONTROVERSIES-ONE BETWEEN CITIZENS OF THE SAME STATE UNITED IN SAME SUIT WITH AN ENTIRELY INDEPENDENT ONE BETWEEN CITIZENS OF DIFII'ERENT STATES-UNION OF, DUE IN NO WAY TO PLAINTIFF.
Where the union of a controversy between citizens of the same state with an entirely independent one between the plaintiff and a third person, a citizen of a state other than that of the plaintiff, is due in no measure to the plaintiff, it seems that a federal court has no jurisdiction of the suit.