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both such questions are jurisdictional, and a decision of the court determining them in favor of the defendant and dismissing the action for want of jurisdiction is reviewable only by the Supreme Court under sections 5 and 6 of the Circuit Court of Appeals act of March 3, 1891 (26 Stat. 827, 828, c. 517 [U. S. Comp. St. 1901, pp. 549, 550]).

[Ed. Note.-Jurisdiction of circuit court of appeals in general, see notes to Law Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]

In Error to the Circuit Court of the United States for the Northern District of Iowa.

For opinion below, see 146 Fed. 403.

Wilbur Owen and Thomas F. Bevington, for the plaintiff in error. W. H. Farnsworth (Deloss C. Shull and J. U. Sammis, on the brief), for the defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge. Charles A. Davis, as executor, sued the Cleveland, Cincinnati, Chicago & St. Louis Railway Company in a state court of Iowa upon a cause of action for the death of his testate which occurred in Illinois. The defendant railway company was organized under the laws of Indiana and Ohio, and owned and operated lines of railroad in those states and in Illinois, but it had no lines of road and no agents or agencies in Iowa where the action was brought. So, to obtain jurisdiction, the plaintiff caused an original notice of the commencement of the action containing also an admonition to answer by a specified date to be served on the secretary of defendant at its general offices in Cincinnati, Ohio, and also caused writs of attachment and garnishment to be issued directed for service to sheriffs of counties in Iowa. The writs of garnishment were served upon certain railroad companies doing business in Iowa and having traffic relations with the defendant, and some freight cars of the defendant in the possession of the garnishees were also attached. Notice of the attachments and garnishments was served on defendant in Ohio. The defendant removed the cause to the Circuit Court of the United States for the Northern District of Iowa, and thereupon filed in that court its motion, in which it said that it appeared specially for the purpose of objecting to the jurisdiction of the court over its person and its property, and it moved to quash and set aside the service of the writs of attachment and garnishment. The plaintiff filed a resistance to the motion. Upon hearing the Circuit Court held that defendant's appearance was not a general one, and therefore it had not submitted itself to the jurisdiction of the court; that the service of the notices in Ohio did not confer jurisdiction of the person; that the cars attached in Iowa were temporarily there having been brought by the garnishees into that state from points without; and that, when brought within the state and when attached, they were employed in interstate commerce and in the fulfillment of duties in respect of such commerce imposed on defendant and the garnishees, its connecting carriers, by the laws of the United States; that the credits of defendant in the hands of the garnishees were shifting traffic balances ascertainable and payable at Chicago, Ill., and a part of

and inseparably connected with the commerce mentioned; that the cars were not attachable and the credits not subject to garnishment, and therefore the court had not lawfully secured jurisdiction of any property of defendant. The motion to quash was sustained, and the action was dismissed without prejudice. The plaintiff sued out a writ of error from this court.

It is not claimed by plaintiff that service of the notices in Ohio. was effectual to confer jurisdiction over the person of defendant. These are the questions: Was defendant's appearance to contest the validity of the attachments and garnishments a general one? Were the cars and credits of defendant subject to attachment and garnishment? In other words, did the trial court secure such dominion over person or property by appearance or process as authorized it to proceed to trial of the action and render a valid judgment upon the issues involved? The trial court answered them in the negative and dismissed the action for want of jurisdiction. In respect of the essential character of these questions, they are not distinguishable from one of the legality of the service of summons upon a defendant. They do not pertain to the merits of the case, and did not arise during the progress of a trial. They lay at the threshold, and upon an affirmative answer depended the power of the court to hear and decide the cause. In legal phraseology that power is termed "jurisdiction." It is none the less a jurisdictional matter in the case of attachment and garnishment of property of. a nonresident because the power of the court to proceed to trial depends in the absence of the defendant upon its lawful seizure of his property. The question of jurisdiction was decided in favor of defendant and the decision disposed of the case. Under the Court of Appeals act of 1891 (Act March 3, 1891, c. 517, §§ 5, 6, 26 Stat. 827, 828 [U. S. Comp. St. 1901, pp. 549, 550]) the Supreme Court alone has power to review such a decision. Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 25 Sup. Ct. 740, 49 L. Ed. 1111; United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; St. Louis Cotton Compress Co. v. American Cotton. Co., 125 Fed. 196, 60 C. C. A. 80.

The writ of error is dismissed.

(156 Fed. 956.)


(Circuit Court of Appeals, Eighth Circuit.

No. 2,503.

October 21, 1907.)


A question not put in issue by the pleadings, nor covered by the decree of the court below, and the determination of which was not necessary to the decision made, will not be determined by the appellate court, although the trial court may have made a finding thereon.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3331, 3341.]

On motion for rehearing. Denied.

For former opinion, see 154 Fed. 829, 83 C. C. A. 545.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge. A petition for a rehearing or for a modification of the opinion in this case, so that it may indicate the status of the claim made by William H. Patten to a homestead in his life estate in the lot and store building which he conveyed to Mrs. Taylor, has been submitted. The purpose and the prayer of the bill were that the deed from Patten to Mrs. Taylor, whereby he reserved his life estate and conveyed the remainder to her, which was made on February 15, 1902, should be adjudged fraudulent and void against the creditors of his estate in bankruptcy, and against the complainant, their trustee. The bill did not mention his claim for a homestead, nor did it seek any relief against it. The answer was that the deed assailed was valid, and the prayer of the defendants was that the relief sought by the complainant should be denied, that the deed should be declared valid, and that they should have general relief. They did not pray for any adjudication or affirmance of any homestead claim of William H. Patten. To this answer the complainant filed a general replication. The defendants filed no cross-bill to establish or obtain an adjudication of Patten's claim to the homestead. There was, it is true, an averment in the answer that on October 23, 1903, Patten moved into the store building, that he occupied the lot on which it stood as his homestead, and that he had then and subsequently claimed it as such. The judge who heard the case below filed findings of fact and conclusions of law in which he declared that Patten occupied and claimed the property as a homestead, and that he had a valid homestead in it, before the proceedings in bankruptcy. were instituted; but they were never carried forward to, nor embodied in, the decree which determined the suit, nor was an adjudication of the homestead issue necessary to the decree that was rendered. That decree was that the bill be dismissed, and that the defendants recover their costs, and it contained no other adjudication. The result is that the question whether or not Patten had a homestead in his life estate in this property was not presented for adjudication by proper pleadings, it was not adjudicated in the court below, it was not presented to this court for review, nor was it here decided.

The proceedings in this suit do not render that question res adjudicata, and the motion for a rehearing, or for a modification of the opinion, is denied.

(156 Fed. 957.)



(Circuit Court of Appeals, Second Circuit. November 8, 1907.)

Nos. 76, 77 (4,242, 4,243).

CUSTOMS DUTIES-CLASSIFICATION-FLINT TILES-SPECIFIC DESIGNATION. Of the provisions in Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 88, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], (1) for "tiles, plain unglazed, one color, exceeding two square inches in size," and (2) for "tiles * semi-vitrified, flint," etc., the latter is more specific; and tiles embraced in both descriptions are dutiable under the latter.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 43.]

Appeals from the Circuit Court of the United States for the Southern District of New York.

These are appeals by Rudolph Schroeder and Charles Engelhard from a decision of the Circuit Court, affirming decisions of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion rendered in the Circuit Court is as follows:

HOUGH, District Judge. No importance can be attached to the use of the word "vitrous" by the witnesses. They evidently regard the word as synonymous with "vitrified." The very matter here litigated seems to have been considered in G. A. 4,281 (T. D. 20,127) very shortly after the present tariff act went into effect. Tiles of the same kind as are now under consideration were also investigated in G. A. 3,704 (T. D. 17,656) shortly before the passage of the act of 1897. Comparing these two decisions with the testimony in this case, I am convinced that the articles in question were, prior to 1897, known as "flint tiles," and were inserted in the act of 1897 by their trade designation. I think therefore that the sort of tile shown by the illustrative Exhibit A (November 8, 1906) was properly classified as a flint tile. I am in some doubt as to whether said Exhibit A is semi-vitrified, but the testimony on that head is not sufficiently strong to disturb the finding of the Appraisers.

The subject of protest in the second suit, as shown by Exhibit 1 (175,685, February 16, 1906), seems to me to be clearly semi-vitrified.

The decision of the Appraisers is sustained.

The case involves the construction of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 88, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], reading as follows:

"Par. 88. Tiles, plain unglazed, one color, exceeding two square inches in size, four cents per square foot; glazed, encaustic, ceramic mosaic, vitrified, semi-vitrified, flint, spar embossed, enameled, ornamental, hand painted, gold decorated, and all other earthenware tiles, valued at not exceeding forty cents per square foot, eight cents per square foot; exceeding forty cents per square foot, ten cents per square foot and twenty-five per centum ad valorem."

The articles in controversy were plain unglazed tiles of one color, exceeding two square inches in size. The Board of General Appraisers and the Circuit Court found them to be flint or semivitrified,

and held them to have been properly classified as such under the second subdivision of said paragraph. The importers disputed the correctness of the finding that they were either flint or semivitrified tiles, and contended further that, even if they were tiles of those classes, they were more specifically designated under the provision in the first subdivision for "tiles, plain, unglazed, one color," etc.

Hatch & Clute (Walter F. Welch, of counsel), for importers.
J. Osgood Nichols, Asst. U. S. Atty.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

PER CURIAM. Decision affirmed.

(156 Fed. 958.)

(Circuit Court of Appeals, Third Circuit.
No. 9 (1,773).

November 11, 1907.)


Iron castings, which by careful additional work have been fitted as parts of machines, are no longer dutiable as "castings," under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 148, 30 Stat. 162 [U. S. Comp. St. 1901, p. 1640], but have been advanced to the condition of "articles * ** * of iron * * * partly * * manufactured," under paragraph 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645].

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

For decision below, see 154 Fed. 399, affirming a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Philadelphia.

Hatch & Clute (Walter F. Welch, of counsel), for importers. Jasper Yeates Brinton (J. Whitaker Thompson, U. S. Atty., on the brief), Asst. U. S. Atty.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. John Bromley & Sons, the appellants, bought certain lace machines from one Jardine, an English lace machine manufacturer. The machines were shipped in parts, each of which parts was numbered with the individual number of the machine for which it was made. The parts here in question are standards for shafts and bed plates supporting such standards, and were described by Jardine in his invoice affidavits as "castings forming parts of machines sold by me to John Bromley & Sons, Philadelphia." The collector, and his action has been sustained by the Board of Appraisers and the Circuit Court, classified them, under paragraph 193 of the tariff act (Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]) as "Articles composed wholly * * * of iron * * * partly manufactured.” From the decree of the Circuit Court so holding, the importers have ap

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