Sarrazin v. W.R. Irby Cigar & Tobacco Co.

• Decision Date: 11 April 1899
• Docket Number: 788.
• Citation: 93 F. 624
• Parties: SARRAZIN v. W. R. IRBY CIGAR & TOBACCO CO., Limited.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F. 624

SARRAZIN v. W. R. IRBY CIGAR & TOBACCO CO., Limited.

No. 788.

United States Court of Appeals, Fifth Circuit.

April 11, 1899

This action was brought by Cheri E. Sarrazin, a citizen of Mississippi, against the W. R. Irby Cigar & Tobacco Company Limited, a corporation organized under the laws of the state of Louisiana, and domiciled in the city of New Orleans, to recover damages for the alleged infringement of a trade-mark ('King Bee,' etc.) for smoking tobacco. The infringement is alleged to have been committed in the years 1896, 1897, and 1898. The plaintiff avers in his petition that he registered his said trade-mark in the United States patent office as provided by the act of congress of March 3 1881, and that on the 14th day of December, 1886, a certificate of registry was issued to him. It is further averred that, prior to and since the registration of said trade-mark, he has been placing the same upon smoking tobacco and cigarettes, which have a well-known reputation and sale through the United States and Mexico and Central America. The location of the defendant's infringement is nowhere set forth in the petition, except in giving the domicile of the defendant corporation in the city of New Orleans, and there is no averment that the defendant corporation has ever infringed the said trade-mark in trade and commerce with Indian tribes or in foreign countries. The defendant filed three exceptions to the plaintiff's demand, as follows '(1) This honorable court is without jurisdiction, as a court of law, to hear and determine the case made by plaintiff, and that this action must be dismissed for want of jurisdiction. (2) That the plaintiff's petition fails to disclose any cause of action against this defendant. (3) That if the said Cheri E. Sarrazin ever had any title to the said trade-mark subsequent to May 26, 1893, which title this defendant denies, the said Cheri E. Sarrazin on the 20th day of the month of June, 1894, took the benefit of the insolvent law of the state of Louisiana, and by proceedings duly filed in the civil district court for the parish of Orleans, styled 'Cheri E. Sarrazin v. His Creditors' (No. 43,051 of the docket of said court), he made a surrender of all of his property to his creditors, and cannot now be heard to maintain this suit, because whatever title he has passes by the said surrender to his said creditors under and by virtue of the proceedings aforesaid. ' On the trial of the exceptions a jury was waived by stipulation in writing, and the matters of law and of fact contained in the exceptions were submitted to, and tried by, the court. The court found, as a matter of fact, 'that on June 20, 1894, the plaintiff, C. E. Sarrazin, made a cession of all his property, under the insolvent laws of the state of Louisiana, in the civil district court for the parish of Orleans, in said state, and that on said day the said cession was accepted by the Honorable F. D. King, judge of said civil district court, for the benefit of the creditors of said plaintiff,' and, as matter of law, 'that by reason of said cession of property, and the nature and character of the alleged trade-mark set out in the plaintiff's pleadings, and as shown by the exhibits thereof, said plaintiff cannot maintain this suit,' and thereupon entered a judgment that the third exception of the defendant be sustained, and the suit be dismissed at plaintiff's cost, without prejudice. On the trial of the case, as shown by the bill of exceptions found in the record, counsel for the defendant offered in evidence, to be read before the court, a certified copy of the petition of the plaintiff, Cheri E. Sarrazin, offering a cession to his creditors in his insolvency proceedings, and a copy of the order of the court accepting the same, to which counsel for plaintiff objected on the ground that the same was only a part of the record, and that the entire record should have been offered, and not a part thereof.

In this court the errors assigned are as follows: '(1) Because the court erred when he permitted only a part of a record to be introduced in evidence, to wit, the petition of the plaintiff in insolvency proceedings before a court of the state of Louisiana. (2) Because the court erred when he ruled that a syndic of an insolvent has control of property not within the borders of the state of Louisiana. (3) Because the court erred when he permitted an infringer of a trade-mark to set up title in an assignee or syndic of an insolvent. (4) Because the court erred when he ruled that a trade-mark registered under the act of congress of 1881, used among foreign nations and Indian tribes, was subject to the laws of the state of Louisiana. (5) Because the court erred when he ruled that a trade-mark registered under the act of congress of 1881 could be transferred in the manner decided, being a violation of a contract and section 8 and articles 3, 6, and 8 of the constitution of the United States. (6) Because the court erred when he ruled that a general assignment in insolvency operated as a transfer of the trade-mark, if said property was not placed upon the schedule of the insolvent, and never claimed by the syndic or creditors of the insolvent, nor in any manner disposed of under the assignment. (7) Because the court erred when he ruled that a debtor was obliged to comprehend in his surrender any property that is not subject to be seized and sold in execution against him. (8) Because the court erred when he ruled that an assignee of syndic in insolvency, or a receiver of all the property of a debtor, appointed under the laws of a state, by virtue of a general assignment or appointment, acquired title in a trade-mark or patent right. (9) Because the court erred when he ruled that personal property of any description could be claimed by a syndic for the benefit of the creditors of an insolvent, until there had been a delivery of said personal property as is required under the laws of the state of Louisiana. (10) Because the court erred when he ruled that a trade-mark of which the name of plaintiff in error formed a part could be assigned, for it is openly trading in the name of another. (11) Because the court erred when he ruled that an assignment would vest the syndic of an insolvent with title to a trade-mark, unless signed in writing in the presence of two witnesses, conveying the specific property or right in said trade-mark, and duly recorded in the United States patent office.' W. R. Stringfellow and T. M. Gill, for plaintiff in error.

E. H. Farrar, E. B. Kruttschnitt, B. F. Jonas, and Hewes T. Gurley, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge (after stating the facts as above).

Where there is an issue of fact in the circuit court, and a jury is waived, and the cause submitted to the court, as permitted in sections 649, 700, Rev. St., there is nothing to review in the appellate court, except (1) rulings of the court in the progress of the trial, if excepted to at the time, and duly presented by a bill of exceptions; and, (2) when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment. Under the jurisprudence of the state of Louisiana, the judgment accepting the cession in insolvency proceedings is a final decree, which can only be set aside by an appeal, or in an action of nullity. State v. Green, 34 La.Ann. 1027. Under the same jurisprudence, it has been settled that the...