Davidson v. Munsey
| Decision Date | 14 April 1905 |
| Docket Number | 1570 |
| Citation | 80 P. 743,29 Utah 181 |
| Court | Utah Supreme Court |
| Parties | DAVIDSON v. MUNSEY |
APPEAL from District Court, Weber County; Charles H. Hart, Judge.
Suit by Max Davidson against Edward A. Munsey. From a decree finding defendant guilty of contempt of a decree restraining him from infringing a certain trade-mark of plaintiff's, defendant appeals. Affirmed on conditions.
AFFIRMED IN PART.
R. S Farnsworth for appellant.
APPELLANT'S POINTS.
The affidavits upon which the order to show cause was issued do not state facts sufficient to authorize the court to issue any such order, or to give the court jurisdiction. (Young v. Cannon, 2 Utah 561; Gaines & Co. v. Sroupe, 117 F. 965; Thedford Med. Co. v. Curry, 22 S.E. 661; Low v. Hall, 47 N.Y. 105.)
The court erred in requiring the defendant to pay to the plaintiff $ 300 as attorneys' fees as costs and expenses incurred by the plaintiff. The court had no authority to allow attorneys' fees in this proceeding.
In the case of a contempt not committed in the presence of the court, the evidence admissible should only be such as would be admissible on the trial of an indictment for the same offense. (In re Bates, 55 N.H. 325; Welch v. Barber, 52 Conn. 147.) It was determined by the Supreme Court of California in the case of Ex Parte Gould, 99 Cal. 300, 33 P. 1112, that a proceeding to punish a person for contempt in violating an injunction is criminal in character and the rules of criminal procedure obtains therein.
The evidence is not sufficient to sustain the finding, conclusion of law and judgment that the defendant realized profits amounting to the sum of $ 150. The amount of the fine to indemnify the person aggrieved must be fixed upon proof of the damages sustained according to the rules of law which would apply to an action for such damages. "It is well settled that under this section of the Code, the amount of the fine to be imposed for the purpose of indemnifying the person aggrieved, must be based upon proof of the damage actually sustained." Moffat v. Herman, 22 N.E. 287; citing Sudlow v. Knox, 7 Abb. Pr. [N. S.], 411; DeJonge v. Brennerman, 23 Hun 332; King v. Flynn, 37 Hun 329; Rohner v. Chadwick [Utah], 26 P. 116; Hostetter v. Von Winkle, Fed Cas. 6714; Atlantic Milling Co. v. Robinson, 20 F. 217; Leather Cloth Co. v. Hirshfield, 13 L. T. N. S. 427; 14 Week. Rep. 78 L. R. 1 Eq. 299.)
W. L. Maginnis and C. C. Richards for respondents.
RESPONDENT'S POINTS.
The fourth, fifth and sixth grounds of reversal relied upon by the appellant cannot be urged in this court. All three raise the question of the sufficiency of the evidence to sustain the findings of the court, and the bill of exceptions contains no specifications of the particulars in which the evidence is alleged to be insufficient. Section 3284 of our Code, as amended in 1903, provides: "No particular form of exceptions is required, but when the exception is to a verdict or decision upon the ground of insufficiency of evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient." This provision of our Code requires that the particulars shall be specified in the bill of exceptions, otherwise the findings of the court cannot be reviewed. (2 Spelling on New Tr. and App. Pr., sec. 433; Hayne on New Tr. and App., sec. 344, p. 737, sec. 96, p. 269; Marks v. Taylor, 23 Utah 159; Van Pelt v. Park, 18 Utah 146; Mader v. Taylor et al., 15 Utah 163; Canal Co. v. Edwards, 9 Utah 477; Stirling v. Parsons, 9 Utah 81.)
This court has repeatedly held that in equity cases the findings of the lower court will not be disapproved unless they are so manifestly erroneous as to demonstrate some oversight or mistake, and in law cases this court may not review the questions of fact, so whether this proceeding be a law case or whether it be a case in equity, the questions of fact will not be reviewed by this court. (Dwyer v. S. L. C. Mfg. Co., 14 Utah 342; Hannaman v. Carrick, 9 Utah 239; Dooly Block v. Rapid T. Co., 9 Utah 45; Watson v. Mahoney, 15 Utah 275; McKay v. Farr, 15 Utah 264; Miller v. Livingston, 22 Utah 178; Gorringe v. Read, 24 Utah 455.)
The court had the power to allow an attorneys' fee of $ 300 as part of plaintiff's costs and expenses. (Brett v. Brett, 33 Hun 547; State v. Durfein, 46 Kan. 695, 27 P. 148; DeJonge v. Brenneman, 23 Hun 332; People v. Spaulding, 2 Paige 364; Whitman v. Haines, 51 Hun 640; Railway Co. v. Duggan, 109 Ill. 537-539; Landon v. Wayne Circuit J., 76 Mich. 373; In re Tift, 11 F. 467; Stahl v. Eytil, 62 F. 920; Doubleday v. Sherman, 7 F. Cases No. 4020.)
The court did not err in admitting the deposition of O. D. Douglass. This proceeding for contempt was not a criminal action, though spoken of as an action in the nature of a criminal proceeding. (9 Cy. 47; Wyatt v. People [Colo.] 28 P. 961; State v. Durein [Kan.], 27 P. 148; In re Chadwick [Mich.], 67 N.W. 1071; State v. Doty [N.Y.], 90 Am. Dec. 671; Tinsley v. Anderson, 171 U.S. 101; State v. Becht, 23 Minn. 411; Gandy v. State [Neb.], 14 N.W. 143.) Nor is a punishment for contempt a bar to a subsequent criminal prosecution for the same act. (Sherman v. People [Ill.], 7 N.E. 618.) The distinction between civil contempt and criminal contempt is also recognized by the decisions of our own State. (Snow v. Snow, 13 Utah 15; Ex Parte Whitmore, 9 Utah 441; In re Kelsey, 12 Utah 393; People v. Owens, 13 Utah 18.)
STATEMENT OF FACTS:
On the 10th day of November, 1900, the plaintiff in this action filed a complaint in the district court of Weber county, Utah alleging that the defendant had infringed a certain cigar label or trade-mark known as the "Columbia Club" and the "Columbia Club Perfecto." The defendant answered, and a trial was had on the 10th day of April, 1901. The court entered a decree in favor of the plaintiff and against the defendant, restraining the defendant from selling or causing to be sold any cigars purporting to be cigars manufactured by plaintiff, or from in any way imitating or causing to be imitated the two brands of cigars known as the "Columbia Club" and the "Columbia Club Perfecto." On January 24, 1903, the court made an order based upon certain affidavits filed by the plaintiff, requiring the defendant to show cause why he should not be committed for contempt of court for violating the decree referred to. The defendant filed an answer, denying the allegations set out in the plaintiff's affidavits. On the 23d day of February, 1903, on a legal holiday, the cause came on for trial, and on March 10, 1903, the court filed its findings of fact and conclusions of law, and entered a decree that defendant was guilty of violating the injunction and decree of said court made on the 10th day of April, 1901, hereinbefore mentioned, and that defendant pay to plaintiff a certain amount of money as damages and his costs and disbursements, including $ 300 as attorney's fees, whereupon an appeal was taken to this court from said judgment, which said judgment was reversed upon the ground that the trial court did not have jurisdiction to try said action on a legal holiday, and the cause was remanded back to the lower court for a new trial. (Davidson v. Munsey, 27 Utah 87, 74 P. 431.) On the 6th day of April, 1904, the cause again came on for trial, and on the 8th day of April, 1904, the court found the issues in favor of plaintiff, and entered a decree adjudging the defendant guilty of contempt, and that plaintiff have judgment against defendant for the sum of $ 150 as damages and that he recover his costs in said action, including $ 300 attorney's fees. The court also found "that, in case an appeal from the final judgment herein be taken by the defendant, that the further sum of $ 200 would be a reasonable attorney's fee to be allowed to plaintiff's attorneys for their services on such appeal." Defendant appeals.
McCARTY, J., after making the foregoing statement of the case, delivered the opinion of the court.
Appellant's first contention is that the affidavit of respondent, Davidson, was insufficient to authorize the trial court to issue an order requiring appellant to appear in court and show cause why he should not be fined and committed for contempt, for the reason that said affidavit was made upon information and belief, and not from personal knowledge. Davidson procured and filed affidavits of other parties in support of the motion for the order to show cause. In these affidavits the facts constituting the alleged contempt are set forth in direct and positive terms, and are based upon the personal knowledge of the parties who signed them, and were sufficient of themselves, without the affidavit of Davidson, to authorize the court to issue the order to show cause. Therefore the question as to whether the affidavit made by Davidson upon information and belief was sufficient to give the court authority to act in the matter becomes unimportant.
The next question raised by this appeal is, did the court err in requiring the defendant to pay to the plaintiff $ 300 as attorney's fees as a part of the costs and expenses incurred by him in the prosecution of the action? Section 3338, Revised Statutes 1898, provides that:
"The compensation of attorneys and counselors at law is left to the agreement...
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