Glass v. Kottwitz

• Decision Date: 17 June 1927
• Docket Number: (No. 9004).<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GLASS v. KOTTWITZ.
• Court: Texas Court of Appeals

Page 573

297 S.W. 573

GLASS v. KOTTWITZ.

(No. 9004).^*

Court of Civil Appeals of Texas. Galveston.

June 17, 1927.

Rehearing Denied July 14, 1927.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by L. A. Kottwitz, independent executor of the estates of Mrs. Mamie J. and Leon Bichon, deceased, against Wallace W. Glass and another. Judgment for plaintiff, and defendant Glass brings error. Affirmed.

John L. Meany and R. H. Ward, both of Houston, for plaintiff in error.

A. B. Wilson and L. A. Kottwitz, both of Houston, for defendant in error.

GRAVES, J.

This writ of error has been sued out by W. W. Glass alone, looking to the review of an adverse judgment to him below, the substance of which is this:

"On this December 7, 1925, in its regular order for trial came on to be heard the application of plaintiff, L. A. Kottwitz, as independent executor of the last will and testament of said Mrs. Mamie J. Bichon, deceased, and of the last will and testament of Leon Bichon, deceased, for a writ of injunction against the defendants W. W. Glass and T. J. Reagan. * * *

"And both plaintiff and defendants having appeared in person and by their attorneys, and no jury having been demanded, and the court, having heard the pleadings and the evidence offered by both parties and having duly considered the facts and the law, is of the opinion that the relief sought by plaintiff should be granted.

"It is therefore ordered, adjudged, and decreed by the court that the defendants W. W. Glass, a resident of Harris county, Tex., and T. J. Reagan, a resident of Limestone county, Tex., and their respective agents and employees, be and they are hereby enjoined and restrained from selling or distributing any of the medicines, the formulas for which were prepared or used by the said Leon Bichon, deceased, during his lifetime, and now used by the plaintiff, as executor aforesaid, which were obtained and secured by the defendant Glass during the course of his employment by the said Leon Bichon, deceased, and from using the list of customers secured by defendant Glass from the business of Leon Bichon, deceased, or from the business conducted by plaintiff as executor aforesaid, and from representing to any person, persons, firms, or corporations, in writing or otherwise, that they, or either of them, are the only living persons knowing how to compound the secret Bichon remedies, from divulging to any persons said formulas, or any of them; from using the same or forms or labels, postcards, or other printed matter as were used by Leon Bichon, deceased, in the operation of his drug business, or as are used by the plaintiff in the operation of said drug business, as executor aforesaid, in the conduct of said business, all of which will be observed by the defendants in this cause as the order and judgment of this court herein.

"Plaintiff dismisses his cause of action herein asserted without prejudice against the defendant W. W. Glass for the sum of $354.44.

"To which action of the court the defendants and each of them excepted and gave notice of appeal."

It is contended on the appeal that the judgment is null and void for want of power or authority in the court to render the same, because (1) the citation commanding the defendant to appear and answer in the cause was made returnable on December 21, 1925 whereas the trial court, without jurisdiction or authority so to do, peremptorily called it for trial and rendered final judgment therein on December 7, 1925.

(2) The plaintiff's pleadings failed to support it, in that they neither alleged (a) that the formulas used by Leon Bichon were either ever reduced to writing, or protected by him by copyright, patent, or registered trade-mark, nor (b) any facts showing that he had any exclusive right during his lifetime to their use.

(3) That the secret formulas, as declared upon by plaintiff, not being in writing or protected by copyright, patent, or registered trade-mark, were neither the subject of exclusive proprietorship in Leon Bichon, nor did they constitute such property as would pass to the plaintiff herein as his executor or to his heirs at law, under the statute of descent and distribution.

(4) No one can claim protection for the exclusive use of a trade-mark or trade-name, which would practically give him a monopoly in the sale of goods other than those produced or made by himself, nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade-mark, and the exclusive use of it be entitled to legal protection.

We conclude that none of these objections can be sustained.

1. There is nothing in the record impeaching the quoted recitation in the judgment that the cause was taken up in its regular order for trial; this court must therefore so assume.

It does appear, however, that the defendant Glass entered his appearance and filed his original answer in the cause on November 24, 1925, without being compelled to do so by any prior ruling of the court sustaining its jurisdiction, and did not therein question the court's jurisdiction, but did invoke its judgment on the merits of the controversy (1) by plea in abatement of the suit for the alleged want of inherent merit, and, subject thereto, (2) by a general answer; that he further, on the day of the trial, December 7, 1925, and still without protest against the court's "jurisdiction or authority" to try the cause at that time, appeared in person and by counsel, presented evidence, and, on being cast, simply excepted and gave notice of appeal from the judgment. This procedure had the effect of then not only joining issue with the plaintiff, but also of subjecting himself to the court's authority to dispose of it, irrespective of the later return date of the original citation. Railway v. Hale, 109 Tex. 251, 206 S. W. 75; York v. State, 73 Tex. 651, 11 S. W. 869; Southwest...