39 Cal. 501, 2,287, Choynski v. Cohen

Docket Nº:2,287
Citation:39 Cal. 501
Opinion Judge:CROCKETT, Judge
Party Name:I. N. CHOYNSKI, Respondent, v. WILLIAM COHEN, Appellant
Attorney:O.L. Lane, for Appellant. Quint & Hardy, for Respondent, filed no brief.
Judge Panel:JUDGES: Crockett, J., delivered the opinion of the Court, Temple, J., Rhodes, C. J., and Wallace, J., concurring. Sprague, J. expressed no opinion.
Case Date:July 01, 1870
Court:Supreme Court of California
 
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Page 501

39 Cal. 501

I. N. CHOYNSKI, Respondent,

v.

WILLIAM COHEN, Appellant

No. 2,287

Supreme Court of California

July, 1870

Appeal from the District Court of the Fourth District, City and County of San Francisco.

COUNSEL:

O.L. Lane, for Appellant.

First --The Court below should have set aside the judgment and vacated the default on the affidavit of the defendant and the pleadings on file. (Bidleman v. Kewen, 2 Cal. 248-50; Francis v. Cox, 33 Cal. 323; Bailey v. Taaffe, 29 Cal. 422.)

Second --The complaint does not state facts sufficient to constitute a cause of action. (Falkinburg v. Lucy, 35 Cal. 52; 4 Abbott, 144; 2 Sandford, S.C. 599; 17 Barb. 608.)

If a complaint states no cause of action, a judgment rendered for the plaintiff on default is defective, and will be reversed on appeal. (Abbe v. Marr, 14 Cal. 210.)

Quint & Hardy, for Respondent, filed no brief.

JUDGES: Crockett, J., delivered the opinion of the Court, Temple, J., Rhodes, C. J., and Wallace, J., concurring. Sprague, J. expressed no opinion.

OPINION

CROCKETT, Judge

Page 502

The defendant's motion to set aside the default taken against him for a failure to answer was properly denied. The excuse given in his affidavit for his omission is fully denied by the counter affidavit of the plaintiff.

The only question which remains to be considered is, whether or not the complaint states a sufficient cause of action to support the judgment. If the complaint exhibits no cause of action, even a judgment by default will be reversed on appeal. (Abbe v. Marr, 14 Cal. 210.)

The action is to recover damages for a violation of the plaintiff's trade mark, and to restrain the use of it in the future. The complaint alleges that in 1863 the plaintiff established a book, periodical and stationery store in San Francisco, and gave to his place of business the name of " Antiquarian Book Store," by which name it has ever since been known; that this name was placed upon his sign, stamped upon all articles sold by him, and used in his correspondence; that he advertised by that name in newspapers, and used it in his business transactions generally. The grievance complained of is, that the defendant has set up a rival establishment under the name of the " Antiquarian

Page 503

Book and Variety Store." It is plain that the plaintiff could not...

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