Davidson v. Munsey

• Citation: 27 Utah 87,74 P. 431
• Decision Date: 10 December 1903
• Docket Number: 1490
• Court: Supreme Court of Utah
• Parties: MAX DAVIDSON, Respondent, v. EDWARD A. MUNSEY, Appellant

74 P. 431

27 Utah 87

MAX DAVIDSON, Respondent, v. EDWARD A. MUNSEY, Appellant

No. 1490

Supreme Court of Utah

December 10, 1903

Appeal from the Second District Court, Weber County.--Hon. C. H Hart, Judge.

Action to restrain defendant from selling cigars under a certain trade name or mark and for damages. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

Messrs Henderson & Macmillan and R. S. Farnsworth, Esq., for appellant.

W. L Maginnis, Esq., and C. C. Richards, Esq., for respondent.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--This suit was brought to restrain the defendant from selling or vending cigars under a certain trade name or mark, and for damages; the plaintiff being a manufacturer, and the defendant a vendor, of cigars. At the trial of the cause a decree was entered in favor of the plaintiff restraining the defendant from selling or causing to be sold any cigars purporting to be cigars manufactured by the plaintiff when the same are not manufactured by him, and especially from manufacturing or selling or imitating two brands of cigars known as the "Columbia Club" and the "Columbia Club Perfecto." Afterwards the plaintiff claimed the defendant had violated the injunction, and proceedings were instituted to punish him for contempt of court. The hearing of the contempt proceedings was commenced on February 23, 1903, and concluded and submitted to the court on the following day. Thereafter, on March 10, 1903, the court entered a decree adjudging the defendant guilty of contempt, and ordered him to pay to the plaintiff forthwith the sum of $ 380 as his loss, consisting of damage, expense and attorney's fees, and also to pay plaintiff's costs and disbursements, taxed at $ 52.30. This appeal is from the decree and judgment.

The decisive question presented is whether the court transcended its powers by commencing and proceeding with the trial of the cause on February 23, 1903, since that day was a legal holiday, the twenty-second of February having fallen on Sunday. The appellant contends that the court acted without jurisdiction, and that its decree and judgment are void. The respondent insists that the trial of the cause on that day did not affect the jurisdiction of the court, but was simply an irregularity, which, as is urged, the defendant waived by failing to make a seasonable objection. We are of the opinion that the contention of the appellant is well founded. Our statute, so far as material here, provides "The following named days are legal holidays in this State: Every Sunday, the first day of January, the twenty-second day of February, . . .: provided, that when any of said days, except the first mentioned, shall fall on Sunday, the following Monday shall be the holiday." Section 1145, Rev. St. 1898. In this instance the twenty-second day of February had fallen on Sunday, and, as will be noticed, the following Monday, or the twenty-third, was therefore a legal holiday. What judicial business may be transacted on such a day can be ascertained from section 701, Rev. St. 1898, which reads: "No court can be opened nor can any judicial business be transacted on Sunday, on any day on which a general election is held, or an any legal holiday, except for the following purposes: (1) To give upon their request, instructions to a jury when deliberating on their verdict. (2) To receive a verdict or discharge a jury. (3) For the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature; provided, that in civil causes orders of arrest may be made and executed; writs of habeas corpus and attachment, executions, injunctions, and writs of prohibition may be issued and served; proceedings to recover possession of personal property may be had, and suits and processes for obtaining any such writs and proceedings may be instituted, issued, and served, on any day." Here is a plain provision of the statute, in which are enumerated...