87 FEDERAL REPORTER: · '
cent., 1:lhe rate>whjch pre\"aHs: iil' ;1:his market;' as shown· by the un· contl'()\"erted, testimony, is 6 percent for real-estate mortgages and like 'securiti'es. If the $5,000,000 ;basis be adopted, surely a better rate must be afforded for the risks of investment than can be obtained on securities of this class, lin' whiCh there is no risk. Upon the basis of $7,000,000, which is' more logical and just, the 5 per cent. named in the bOIids iscleadynot excessive, and should be accepted by:a court of equity as the minimum of allowance; and, even upon the defendant's partial showing, the return would be less than one-quarter per cent. above that, with the large margin for depreciation left out of account. lam of:opinion that the testimony is not only convincing in support of the material allegations of the bill, but is uncontradicted and conclusive that the ,improved service :received by the public, with the universal system of transfers, is well worth the five·cent rate charged therefor; that the company has not received earnings in excess of an equitable allowance to the investors for the means necessarily invested in furnishing such service; that enforcement of theordinance would deprive complainant of property rights, by preventing reasonable compensation for its service; and that, therefore, the ordinance clearly violates the constitlltion of the United States, and is invalid. Decree must' enter accordingly, and for an injunction as prayed in thf' bill. "
McGORRAY v. O'CONNOR et aI.
(Circuit Oourtof Appeals, Ninth Circuit. May 8, 1898.) No. 407. 1. A motion was made'to strike out answers for want of certificates of counsel that the answer was wellfonnded In law. The court denied the motion, "with, leave to:Sllld defendants to further verify their answers. aIld add, certificatlls, Ii so advised.", Held, that this, order was merely permisslYe, and not ,a decision, constituting thlllaw of the case, that cer' " , , tificates to the' answer were necessary. There Is no equity rule requiring a certificate of counsel that an answer to the merits Is well founded in law.
S. SAME-MOTION TO STRIll:E.
A motion to strike Q.ut parts of tne answer must be denied when not sufficiently specific to Identify the portions to stricken. ,
,'. . TO ANSWER. " , TOS'l'RIKE., ' '.'
4-EQUITY PRACTICE-SElTTJNG DOWN FOR HEARING.',,'
Where over 90 days elapse after the filing of the Without the taking' of any' testimony by plaintiff or any motion to extend the time for taking testim(jny;and thereafter plaiIltiff gives notice of motions to strike out certaill portions of t4e answer, which motions are denied, t11ere is no error In then setting the case down for hearing on the blll and answers.
MORTGAGE FORECLOSURE- RIGHT OF REDEMPTIQN- HEIRS AND SURVIVING
PARTNER. ' In California, where the ,law gives to a surviving partner absolute power assets of the partnership (Code Civ. of the control Rllddisposition of Proc. § 1585), the heirs of a deceased partner have no such Interest In the partnership property al? entities them, or their judgment creditors to redeem such property from a' sale untler a mortgage. 79 Fed. 861, affirmed.
y'QORRAY T. O'CONlIlOR.
Appeal from the Circuit Court of the United States for the Northern District of California. Amos H. Carpenter, for appellant. Olney & Olney and Dudley & Buck, for appellees. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, Dis· trict Judge. GILBER'r, Circuit Judge. The appellant, Bernard McGorray, was the complainant in a bill in equity brought to redeem certain real property from a mortgage sale. C. W. Carpenter and C. K. Bailey were partners in farming and stock raising. They mortgaged a pOl" tion of their real estate to Myles P. O'Connor. Carpenter died, leav· ing a will, devising the greater portion of his property to his part· ner's children. The mortgage was subsequently foreclosed, and the mortgaged property was sold to the mortgagee. The complainant filed a bill in equity against O'Connor and others, claiming that the sheriff's deed which O'Connor had received was void, and praying that it be canceled, and that the complainant be allowed to redeem the premises described therein, basing his right to redeem upon the fact that he was the assignee of a judgment which had been ob· tained in an action at law against Clinton H. Carpenter, a brother of the said C. W. Carpenter, deceased, and one of his heirs at law. The defendant O'Connor filed a separate answer to the bill, and the other defendants united in a joint answer. Thereupon the complain. ant filed, on April 1, 1896, his replication to both answers. On June 29, 1896, the complainant gave notice to the defendants of a motion to strike out certain portions of the answers, on the ground that they were sham, redundant, and conclusions of law, and noticed the mo· tion for July 6, 1896. Said motion was continued by the court to August 3, 1896. The complainant took no testimony on the issues; but on July 14th, and after the expiration of the 90 days allowed to take testimony, the defendants in the suit gave notice that they would set the cause down for trial. Three days later, the complain· ant served notice of a motion to strike the answers of the defendants off the files, on the ground that they were not accompanied by. cer· tificates of counsel, as required by rule 10 of the circuit court, cer· tifying that, in the opinion of counsel, the answer "is well founded in point of law." On August 3, 1896, the motions came on to be heard. The motion to strike out the answers for want of the certificates was denied by the court, "with leave to said defendants to further vel" ify their answers, and add certificates if so advised." The motion to set the cause for hearing upon the bill and .answer was denied, and it was ordered that the motion to strike out parts of the an· swers and the motion for judgment on the pleadings be submitted upon briefs. Some months later the said order was revoked by the court. On March 27, 1897, the complainant filed and served a sec· ond notice of motion to strike the answers from tbe files, on the ground specified in the former motion, and because tbe had failed to comply with the order of the court requiring them to attach said certificates. On March 31.1897. that and the other mo·
tions pending were argued and sUbmitted; whereupon the motion to strike out the answers for want of certificates and the motions to strike out portions of the $ere denied. Thereafter, on April 12, 1897, a final decree was .entered, reciting that, the cause having been heard on the bill and the respective answers, it was decreed that the complainant was not entitled to any of the relief prayed for in his bill, and his bill was dismissed 79 Fed. 861. The appellant contends that upon the hearing before Judge Morrow, on March 31, 1897, the motion to strike the answers from the files for want of certificates was erroneously denied, since the law of the case was decided by Judge McKenna by his order of August 3, 1896, giving the defendants leave to attach the certificates, citing Wakelee v. Davis, 44 Fed. 532, and Warswick Mfg. Co. v. City of Philadelphia, 30 Fed. 625. To this it is sufficient to say that the order of court of August 3, 1896, did not require the defendants to attach such certificates. It was permissive in its terms, and left the defendants free to attach the certificates if they were advised that the same were necessary. The defendants evidently did not consider their answers open to objection upon that ground, and they very properly declined to avail themselves of the permission afforded them by the court. If the· omission of such certificates had been ground for striking the answers from the files, the right to take advantage of such defect had clearly been waived by filing replications to the answers. But there was no necessity for such certifi· cates. Rule No. 10 is a common-law rule, and has no application to suits in equity, and there is no equity rule requiring a certificate of counsel to an answer to the merits of the bill. Nor do we discover error in the ruling of the court upon the motions to strike out pOI" tions of the answers. As'the record is presented in this court, it is impossible to identify ally of the portions of the answers to which the motion was directed. Counsel for appellant eontend that the cause was wrongfully set for hearing upon the bill and answers before the pleadings were settled, and that they objected to said hearing for that reason, and upon the ground that they desired to take testimony as soon as the issues were complete. The record shows that more than 90 days had elapsed after the replications were filed before any motion against the answers was filed in court. The record shows no application to the court to extend the time for taking testimony, nor any affidavit stating grounds on which such extension could have been ordered. There was no error, therefore, in setting the case down for hearing upon the bill and answers on March 31, 1897. . We find no error in the decree dismissing the complainant's bill upon the hearing had upon the bill and the answers. One of the material allegations of the bill was the averment that the complainant was the assignee of the judgment which had been rendered against Clinton H. Oarpenter. This was distinctly denied in O'Con· nor's answer. In a hearing upon the bill and answers under this condition of the pleadi:trgs, it would have been impossible for the court tu have awarded relief. against the· principal defendant, the holder of the legal! title to the property which was sought to be re-
ALLEN B. WRISLEY CO. V. GEO. E. ROUSE SOAP CO.
deemed. But, aside from this, a further and complete answer to the asserted right of the complainant to the relief sought by his bill is found in the fact that the land which was mortgaged to O'Oonnor was the partnership property of the mortgagors. After the foreclosure of a mortgage on real estate and the sale of the mortgaged property, the right to redeem from the sale is pureiy statutory. Section 7m of the Code of Civil Procedure of California confers the right upon-First, the judgment debtor or his successor in inter in the whole or any part of the property; and, second, a creditor st having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the prop was sold. Tbe property belonged to the firm of Bailey & Carrty penter. It may be assumed from the facts stated in the pleadings that the title was vested in the firm. Upon the death of Carpenter, ihe possession of the partnership property was vested in the surviving partner. He had the absolute right of possession, and the power to control the property until the affairs of the partnership were wound up. It is still in his hands as such surviving partner. No right of redemption has descended to the heirs of Oarpenter. Allen v. Hill, 16 Cal. 113; TheIler v. Such, 57 Cal. 447; Robertson v. Burrill, 110 Oal. 568, 42 Pac. 1086; Smith v. Walker, 38 Cal. 388. The appellant clearly comes within neither of the classes of persons who are given the statutory right to redeem the mortgaged property after a mortgage foreclosure and sale. His assignor is not the judgment ,debtor, nor is he his successor in interest, nor was he a creditor having a lien by judgment or otherwise on the property sold. The de-cree of the circuit court must be affirmed.
ALLEN B. WRISLEY CO. v. GEO. E. ROUSE SOAP CO. et al. (CircuIt Court, E. D. Wisconsin. May 9, 1898.)
A solid blue label for packages of laundry soap, bearing the words "Old Country," Is not Infringed, or unfairly Imitated, by the use of a label having on It the national colors of the United States, with the words "Our Country." ,
On motion for preliminary injunction to restrain the defendants irom using the words "Our Country" as the designation of their manufacture of laundry soap, with the colors and form of labels on the packages shown in exhibits, based upon either of two grounds: (1) Infringement of complainant's trade-mark "Old Country," as applied to a brand of laundry soap; or (2) fraudulent simulation to palm off ,defendants' goods as those of complainant's manufacture. Poole & Brown, for complainant. Wigman & Martin and W. H. Timlin, for defendants. SEAMAN, District Judge. The resemblance in form, size, and weight of the packages of soap in question and in the Manilla wrapper referred to in the bill filed is conceded to be common to other makes «)f laundry soap, and is clearly not actionable. There is no possible