defendant appeals. Reversed, with instruc-ing for any other relief. (5) That the complaint tions. Richard M. Milburn, Atty. Gen., and Horace M. Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney, and Wilbur T. Gruber, Asst. Attys. Gen., for appellant. Keller & Hartman, of Indianapolis, for appellee. on its face fails to show that the plaintiff, Thomas Connor, is insane and under guardianship, when in truth and in fact he was, on the 25th day of March, 1914, declared a person of unsound mind, and a guardian was appointed for him in the probate court of Marion county, Ind. (6) That the complaint herein on its face fails to show that the plaintiff, Thomas Connor, is sane and a fit person to be at large, and that his being set at large would not be dangerous to the community. (7) That this court legality of the judgment, or process, by which cannot, upon habeas corpus, inquire into the the plaintiff herein, Thomas Connor, is held in custody. (8) That this court, upon a writ of into the constitutionality of the law questionhabeas corpus, has no jurisdiction to inquire ed by the plaintiff herein. (9) That the complaint is defective in this, to wit: That while it alleges that the plaintiff was physically able against him, it does not allege that his presence to be present at the insanity proceedings held would not have injured him physically or mentally. (10) That the complaint herein is defective in this, to wit: That it does not show upon its face that the commitment issued on the 10th day of March, 1915, was void. complaint alleges that it is void, but the proper showing is not made." Said [1] This was the proper proceeding to test the sufficiency of the petition. McGlennan v. Margowski, 90 Ind. 150; Milligan v. State, 97 Ind. 355; Willis v. Bayles, 105 Ind. 363, 5 N. E. 8. ERWIN, J. On March 10, 1915, appellee was committed to the Central Hospital for Insane, of which appellant was the superintendent. On April 12, 1915, appellee, through his attorneys filed in the superior court of Marion county a petition for a writ of habeas corpus, which petition was verified by one Patrick J. Connor. The petition, omitting formal parts, is in these words, to wit: “This petitioner would respectfully represent and show that he was, on the 10th day of March, 1915, unlawfully arrested and committed to the Central Indiana Hospital for Insane, and that he is now unlawfully restrained of his liberty and imprisoned at the Central Indiana Hospital for Insane in Indianapolis, in said county and state, by George F. Edenharter, superintendent of said hospital, upon a pretended charge of insanity, and by authority of a certain commitment issued on the 10th day of March, 1915, and which commitment is void for the following reasons: That it was not issued by a court or authority after a due hearOn April 22, 1915, the court overruled aping, as is provided by law. That said imprison- pellant's motion to quash the writ, to which ment is illegal in this: That your petitioner ruling appellant duly excepted. On April was not served with notice, and, although physically able, was not present or permitted to offer a defense to any insanity proceedings against him, therefore he has been deprived of his liberty without due process of law. That the statute authorizing his commitment is invalid in this: That it is not so framed as to compel a hearing before judgment, and does not guarantee to the person charged an opportunity to be heard in defense; therefore it is in conflict with those provisions of the state and federal Constitutions which forbid that any person be deprived of his life, liberty, or property without due process of law. Wherefore the petitioner asks that a writ of habeas corpus be granted, and that he may be discharged from such unlawful restraint and imprisonment." Upon the filing of said petition the judge of said court ordered a writ to issue, returnable the following day. On April 13, 1915, appellant appeared by the Attorney General, and moved to quash the writ, thereby questioning the sufficiency of the petition, which motion to quash, omitting formal parts, is in the words following to wit: "Comes now the defendant herein by Richard M. Milburn, the duly elected, legally qualified, and now acting Attorney General of the state of Indiana, and moves the court to quash the writ herein for the following reasons, to wit: (1) That the complaint herein upon its face shows that it is not made, signed, and verified by the plaintiff. (2) That the complaint shows upon its face that it was not made, signed, and verified by some person in said plaintiff's be half. (3) That a person declared insane, and under guardianship, cannot, in person or by his next friend, institute an action to inquire into the proceedings declaring him insane. (4) That persons committed as insane may apply to the proper authorities for a writ of habeas corpus to determine the question of their sanity, but they are not given the right to bring a proceed 24, 1915, appellant filed his return to the. writ, showing that the wife of appellee had filed before a justice of the peace of Marion county a petition to have appellee adjudged insane, and that proceedings were regularly had under section 3691 et seq., Burns 1914, providing for admission of patients to the insane hospitals of the state. To this return appellee filed exceptions, which, omitting the formal parts, were as follows, to wit: "Thomas Connor excepts to the return of the said George F. Edenharter, superintendent Central Indiana Hospital for Insane, herein, for the following reasons: (1) That said return does not show a sufficient cause for the detention of the petitioner, as it does not show that he was committed on a valid judgment. (2) That said return does not show that petitioner has been committed to the Central Indiana Hospital for Insane as a dangerously insane person, as is provided by sections 7879, 7880, and section 7881 of Burns' Revised Statute of 1914, which provides that when an affidavit is filed that any person is insane and dangerous to the community if suffered to remain at large, the justice shall require a trial by jury of six reputable householders or freeholders of the county." These exceptions were overruled. On motion of appellee, over the objections of appellant, the court directed a jury to be called to whom the issues thus formed were submitted, and a verdict returned finding appellee sane. On return of the verdict the court adopted it as his finding, and entered a judgment, discharging appellee from custody of appellant. [2] The first question presented by the assignment of errors is as to the sufficiency of the complaint to state a cause of action. Appellee's petition being insufficient, either to try the question of sanity under section 3729, or to test the constitutionality of any law, it must follow that the court erred in overruling appellant's motion to quash the writ. It is therefore ordered that the judgment be reversed, with instruction to the court below to grant a new trial and to sustain appellant's motion to quash the writ. (185 Ind. 616) It is provided by section 3729, Burns 1914, | decide that question, for the reason that no that any person committed as insane may particular act is questioned by the petition apply for a writ of habeas corpus for the pur- filed by appellee in this cause. pose of deciding his sanity. If the petition in question was for that purpose, it is clearly insufficient for the reason that it is nowhere averred, nor are any facts averred from which the inference can be drawn that appellee was sane at the time of his commitment, or at the time of the filing of his petition for the writ, a matter that should be pleaded to present that issue. If the action was brought for the purpose of testing the constitutionality of the act or acts under which appellee was committed, then the petition is equally defective for the reason the petition fails to aver under what law or section or sections of the statute appellee was committed, nor with what section or (Supreme Court of Indiana. Nov. 28, 1916.) sections or article of the Constitution of the 1. PATENTS 183-ASSIGNMENT-VALIDITY. United States, or the state of Indiana, the choate right in an invention before issuance of It is not essential to convey title to an inlaw conflicts. It nowhere alleges the sec- letters patent that an assignment be recorded tion of the law pertaining to the control of or be in proper form for recording, since as bethe insane, which is in conflict with the Con-tween the parties and against every one except stitution of the state or United States. One recorded assignment is sufficient. a subsequent purchaser without notice an unwho alleges the unconstitutionality of a statute must point out the particular provision of the particular Constitution violated. Levy v. State, 161 Ind. 251, 256, 68 N. E. 172; Davis v. State, 71 Tenn. (3 Lea) 376. It is not enough for the pleader to charge that a law is unconstitutional, but it is essential to the pleading that the particular law which is claimed to be invalid should at least be identified by giving the act, the title of the law, or the section of the stat. ute which is claimed to be invalid. Rose v. State, 171 Ind. 662, 666, 87 N. E. 103, 17 Ann. Cas. 228. We have in this state several different sections of the statute dealing with the subject of the insane, either one of which might be referred to by appellee, but none of which are mentioned. Sections 3691 to 3703, Burns 1914, make provision for the admission of patients to insane hospitals. Section 3706 provides for the issuing of a warrant by the clerk of the circuit court, directing the apprehension and commitment of patients. Section 3705 provides that no idiots shall be admitted. Sections 3713 to 3718 provide proceedings for care of insane convicts, while section 3721 provides for the transfer of an insane patient from one hospital to another, and that under certain conditions the costs of such transfer shall be paid by the patient so transferred. Sections 3101 to 3111 make provision for the restraint, care, and control of the dangerous insane. INDIANA MFG. CO. v. SWIFT. [Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 259–262; Dec. Dig. 183.] 2. PATENTS 183-ASSIGNMENT-VALIDITY. Where at the time of an assignment the inventor had perfected his invention so far as the drawings were concerned, and had them in pencil on the patent sheets, his assignment was sufficient to convey the inchoate title in the invention, and subsequent issuance of letters patent served by operation of law to vest in the assignee the equitable title to such letters. [Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 259-262; Dec. Dig. 183.] 3. PATENTS 183-ASSIGNMENT VALIDITY. If an assignment of an invention is properly recorded in the patent office and contains a request that the letters issue to the assignee rather than to the inventor, it conveys to the assignee the legal title to the patent, even though the patent be issued in the name of the assignor. [Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 259-262; Dec. Dig. 183.] 4. PATENTS 183-ASSIGNMENT-VALIDITY. [Ed. Note.-For other cases, see Patents, Cent. Action by Rodney B. Swift against the Indiana Manufacturing Company. Judgment for plaintiff, and defendant appeals. firmed. Af [3] The Attorney General in the eighth specification of his motion to quash the writ and in his brief challenges the right of appellee to question the constitutionality of the Harold Taylor and Miller, Shirley, Miller law under which he, appellee, was committed. & Thompson, all of Indianapolis, for appelWhile it may be doubted whether appellee lant. Addison C. Harris, of Indianapolis, has that right, we are not called upon to for appellee. SPENCER, J. Appellee has recovered a control of appellant. The specifications, judgment against appellant in the sum of drawings, claims, and application contemplat$8,046, which represents the amount of principal and accrued interest to the date of judgment on three promissory notes unpaid and past due, which were executed by appellant on March 25, 1903. The questions presented by this appeal from said judgment will best appear from a consideration, in substance, of the facts found specially by the trial court as a basis for its decision. ed by the agreement of the parties were duly prepared and filed by appellee, as attorney for the inventor, in the United States Patent Office on September 12, 1903, under serial No. 172,858, and a patent was allowed thereon by the Commissioner of Patents on October 3, 1904. It then developed that the assignment of May 25, 1903, had not been forwarded by appellant to the Patent Office, and appellee, A few days prior to the execution of the on paying the final patent fee, directed that notes in suit the president of appellant com- the letters patent be issued in the name of pany entered into an oral agreement with the inventor, which was done on February appellee, who is a patent attorney, whereby 21, 1905, under patent No. 783,025. Appellee the latter undertook to cause to be prepared thereafter advised appellant of the issuance certain drawings, claims, and specifications for an invention then being perfected, but on which no patent had issued, for the handling pneumatically of shredded corn fodder, straw, and the like in connection with the use of harvesting machinery; also to procure an application for letters patent thereon by the inventor and the issuance of a patent by the government of the United States, and to procure to be executed by the inventor an assignment of such invention and patent to appellant. In consideration of such services the company executed a series of promissory notes in the aggregate amount of $25,000, all of which notes, except the three now in suit, were paid at maturity. Pursuant to this agreement, and on May 25, 1903, appellee procured the execution by said inventor of the following instrument in writing: "Assignment. "Whereas, I, John M. Culver, of 356 Dearborn street, Chicago, Illinois, have invented certain new and useful improvements in wind stackers, adopted for use on threshers, fodder shredders, and for other purposes, application for patent on which is now in process of preparation; "And whereas, the Indiana Manufacturing Company, a corporation of West Virginia, with its place of business at Indianapolis, in the state of Indiana, is desirous of acquiring the entire right, title, and interest therein: "Now, therefore, be it known that for one dollar and other good and valuable consideration, the receipt of which is hereby acknowledged, I have sold, and by these presents do hereby sell and convey, to the said the Indiana Manufacturing Company, its assigns and legal representatives, all my right, title, and interest in and to the said invention and the letters patent to be obtained therefor, to have and to hold for the full term of which patent may be obtained on the said invention, together with the right to obtain foreign patents; and I hereby agree to execute all papers necessary for the obtaining of patents in this and foreign countries. The Commissioner of Patents is authorized and hereby requested to issue any patents that may be obtained on said invention to the said the Indiana Manufacturing Company. "In witness whereof I hereunto set my hand and seal this 25th day of March, 1903. of the letters patent, but was informed that the assignment in question had been lost, whereupon he procured the execution, on or about June 5, 1905, of a patent deed from Culver to appellant. This deed was properly mailed by appellee to the office of appellant, but appears not to have been received by the latter. In the summer of 1907 appellant requested appellee to procure the execution of another patent deed from Culver, but before the same could be procured the assignment of May 25, 1903, was found in the office of appellant company and mailed to the patent office for record. It was there refused and returned on the ground that it failed properly to identify the patent in question with the application and invention, and on the further ground that it did not transfer any interest in said patent to appellant. Subsequently appellee procured the execution of a new patent deed from Culver to appellant and tendered the same to the latter during the trial of this cause, but it was refused. Neither of the parties hereto nor the inventor has ever asserted any ownership of or any interest in said patent or said invention, except as above set out, and appellant has never acquired any title thereto, except through the instruments heretofore mentioned. The trial court has concluded, however, that appellant has thus acquired the equitable title to the invention in question; that said equitable title furnished some consideration for the execution of the notes in suit; that said notes were given for a valuable consideration; and that there has not been a failure of consideration for the same. The principal inquiry in this case is to determine the legal effect of the assignment of May 25, 1903. The rule is well settled that an inventor has an inchoate right in his invention which he may sell and assign either before or after he makes application for a patent. 1 Rogers on Patents, 189; Gayler v. Wilder, 10 How. 477, 13 L. Ed. 504; Cook v. Sterling Elec. Co. (C. C.) 118 Fed. 45, 46. "[Signed] John M. Culver." This instrument was duly acknowledged [1] As pointed out in the case last cited, before a notary and mailed by appellee on the sale of this inchoate right before letters the day of its execution to the office of appel- patent are granted is governed by the genlant at Indianapolis, where it was received eral principles of law which relate to bargains in due course, and has since remained in the and sales. It is not essential that to convey such title an assignment thereof must be re- sion on the assignment, and there is nothing corded, or be in proper form for recording; in the court's findings of fact to indicate that for, as between the parties and as against every one except a subsequent purchaser without notice, an unrecorded assignment is sufficient. 1 Rogers on Patents, 189; De LaVergne Mach. Co. v. Featherstone, 147 U. S. 209, 228, 13 Sup. Ct. 283, 37 L. Ed. 138. the assignor has ever refused to execute a proper deed to the letters patent which were issued in his name. Conceding that appellant was under no obligation to maintain a suit for specific performance of this agreement on the part of the inventor (Jeffries v. Lamb, [2] Appellant contends, however, that a 73 Ind. 202–207), it is equally true that bemental conception of an improvement on an fore the defense of failure of consideration existing machine, unreduced to practice and could be established in this action it must at unexpressed in any physical form or de- least appear that Culver has refused to exscriptive specification, does not constitute an ecute essential papers which he was bound to invention (Lamson v. Martin, 159 Mass. 557, execute under the contract procured through 566, 35 N. E. 78), and that, although one may the efforts of appellee. This agreement clearenter into a valid agreement to sell an inven- ly contemplates that such papers should be tion not yet developed by him, he cannot executed at the option of appellant, and unmake a valid sale thereof (Regan Vapor En-til there has been a refusal to convey to it gine Co. v. Pacific Gas Engine Co., 49 Fed. the legal title to the patent in question there 68, 70, 1 C. C. A. 169, and authorities cited). can be no failure of consideration for the We need not here question appellant's notes in suit. The burden rested on appelstatement of the rules relied on, but will lant to show such a refusal, and this it did note only that their application to this case not do. Without determining, then, whether presupposes that the improvements referred the conveyance of the equitable title in the to in the assignment in question existed only invention to appellant is in itself sufficient in the mind of the inventor and were intangi- to sustain a recovery in this action, or whethble in form. The trial court has not so er the deed of June 5, 1905, operated in law found, on an issue tendered by appellant's to convey the legal title to the patent, it is pleadings, and on reference to the evidence certain that, under the facts and circumit appears that when Culver executed the as- stances of the case, appellant has not estabsignment of May 25, 1903, he had perfected lished its defense of failure of consideration. his invention so far as the drawings were concerned, and had them in pencil on the patent sheets at that time. The assignment, then, was sufficient to convey to appellant the inchoate title in the invention, and the subsequent issuance of letters patent thereon served, by operation of law, to vest also in appellant the equitable title to such letters. 30 Cyc. 882, and authorities cited; Gayler v. Wilder, supra; Harrison v. Morton, 83 Md. 477, 35 Atl. 99. This conclusion serves to dispose of such other questions as are presented by the appeal and not waived by appellant's failure to discuss the same in its argument. Judgment affirmed. (185 Ind. 623) PECK et al. v. HIBBEN et al. (No. 22978.) BULK Under Burns' Ann. St. 1914, § 7471a, making void as against creditors a bulk sale of a stock unless a full detailed inventory is made five days before sale and the purchaser demands and receives from the seller a written list under oath of the creditors and gives them five days' notice before taking possession, a sale of a stock of goods is void where the seller merely stated orally that he had no creditors, although the purchaser demanded an inventory and list of creditors, which by such section must be under oath. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. 47.) [3] If an assignment of an invention is properly placed of record in the Patent Office, and contains a request that the letters issue to the assignee rather than to the inventor, it will serve to convey to the former the legal title to the patent, even though it be issued in the name of the assignor. U. S. Stamping Co. v. Jewett (C. C.) 7 Fed. 869, 877. Some authorities apply the same rule in the absence of a request that the letters issue to the assignee. Railroad Co. v. Trimble, 77 U. S. (10 Wall.) 367, 379, 19 L. Ed. 948; Hildreth v. Auerbach (D. C.) 200 Fed. 972; Wende v. Horine (C. C.) 191 Fed. 620. [4] In the case at bar, however, the as-ty; Charles W. Hanley, Judge. signment was held insufficient for record, and did not operate, in and of itself, to convey to appellant the legal title to the patent when issued. Nevertheless the instrument obligated the inventor to execute, at appellant's request, such papers as were necessary to assist the latter in obtaining whatever patent T. B. Cunningham, of Kentland, and John rights it desired, in this or in foreign coun- A. Dunlap, of Rensselaer, for appellants. tries. No limitation is placed on this provi- Schuyler C. Dwyer, of Lowell, for appellees. Appeal from Circuit Court, Newton Coun Suit by Harold B. Hibben and others against Alfred D. Peck and others. From an interlocutory order adjudging them receivers of a stock of goods, defendants Peck and Graves appeal. Affirmed. answer MORRIS, J. Appeal from an interlocutory | fense. We hold otherwise. The order adjudging appellants receivers of a treats the provision of the statute requiring mercantile stock, under the provisions of the an inventory to be made by seller and purbulk sales act of 1909 (Acts 1909, p. 122; sec- chaser as a nullity, and proceeds on the theotions 7471a-7471c, Burns, 1914). Section 1 ry that a verbal statement of the seller that of the act makes void, as against creditors, a he had no creditors complied with the statubulk sale of a stock of merchandise, unless tory requirement that the statement be writthe seller and purchaser, at least five days ten and made under oath. Holding such an before the sale, shall make a full detailed in- answer sufficient would amount to a practiventory, and unless the purchaser demand cal repeal of the statute. Courts are not and receive from the seller a written list, invested with such power. made under oath, of the sellers, creditors, and Judgment affirmed. also unless the purchaser give five days' notice to creditors before taking possession. Section 3 of the act provides that a purchaser failing to comply with the above provisions shall, on a creditor's application, become a receiver of the merchandise stock, and be held accountable therefor to the creditors. Appellees Hibben and Holweg, Afreed De Fries, and Foley & Co. (a corporation) filed a complaint against appellants Peck and Graves and appellee Vernon Cyphers, in which it is alleged that plaintiffs were creditors of Cyphers when, on August 24, 1915, the latter sold his stock of merchandise, worth $3,500, to Peck and Graves; that there was no inventory of the stock made previous to the transfer of possession; that there was no notice given the creditors of the intended sale; and that no list of creditors was made by the seller. The complaint prays for an order adjudging the purchasers receivers of the stock and accountable therefor to the . (185 Ind. 650) PADDOCK, Mayor, v. STATE ex rel. FITZ- (Supreme Court of Indiana. Nov. 29, 1916.) the relator must not only show a clear legal To warrant issuance of writ of mandamus, right, but must show that there is no other adequate remedy, and that it is defendant's imperative duty to do the act sought to be compelled. Cent. Dig. §§ 1-3; Dec. Dig. 1; Action, [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 115.] 2. MANDAMUS 92-RIGHT TO WRIT-IMPERATIVE DUTY. Where the city council, after ordering the mayor to sign a paving ordinance, revoked the resolution, the mayor had no authority, much less duty, to sign the contract, and his signature could not be compelled by mandamus. [Ed. Note.-For other cases, see Mandamus, Cent Dig. §§ 199, 204; Dec. Dig. 92.] Appeal from Circuit Court, Jay County; Jacob F. Denney, Judge. Mandamus by the State, on the relation of John J. Fitzmaurice, against Charles A. Paddock, Mayor of Portland. From judgment granting the writ, defendant appeals. Reversed, with instructions. bona fide creditors of Cyphers. Appellants Peck and Graves answered in a single paragraph alleging that they did purchase and take possession of the stock on August 24, 1915; that five days before the purchase they demanded of Cyphers that he make a full and detailed inventory of the stock, and at the same time demanded that he make a list of creditors, with addresses and amount due Charles E. Sturgis and Robert W. Stine, each and certify to the same under oath; both of Bluffton, and Malcolm V. Skinner, that Cyphers represented to them that he had of Portland, for appellant. James R. Flemno creditors; that an August 24, 1915, Cy-ing and Frank B. Jaqua, both of Portland, phers executed a bill of sale for the stock, for appellee. to which was appended his affidavit, a copy of which instrument is set out. The affidavit recites that the seller is the sole owner of the stock, and that there are no liens on it or suit pending to affect the title, but contains no reference to creditors of Cyphers. The trial court sustained a demurrer to the answer, and this ruling presents the sole question for us to determine. There was no error. The validity of the statute is not questioned. See Hirth-Krause Co. v. Cohen (1912) 177 Ind. 1, 97 N. E. 1, Ann. Cas. 1914C, 708; Rich v. Callahan (1913) 179 Ind. 509, 101 N. E. 810; Beard v. Indianapolis Fancy Grocery Co. (1913) 180 Ind. 536, 103 N. E. 404. Counsel for appellees assert that the statute should receive a liberal construction, and that, so construed, the answer stated a de SPENCER, J. It appears from the special finding of facts in this case that on May 3, 1915, the common council of the city of Portland adopted a resolution, declaring that it was deemed necessary to grade and pave a part of Pleasant street in said city under and pursuant to the provisions of section 8710 et seq., Burns 1914. Such other proceedings in the premises were thereafter had as resulted, on July 12, 1915, in the adoption by the council of a further resolution, awarding the contract for such improvement to the relators herein, and directing appellant, as the mayor of the city, to execute the contract in its behalf. Two days later, at a special session of the council, its vote on the resolution of July 12th was reconsidered, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |