Helms Groover & Dubber Co. v. Copenhagen

• Decision Date: 21 January 1919
• Citation: 177 P. 935,93 Or. 410
• Parties: HELMS GROOVER & DUBBER CO. v. COPENHAGEN ET AL.
• Court: Oregon Supreme Court

177 P. 935

93 Or. 410

HELMS GROOVER & DUBBER CO. v. COPENHAGEN ET AL.

Supreme Court of Oregon

January 21, 1919

In Banc.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suit by the Helms Groover & Dubber Company against Henry Copenhagen and Otto Copenhagen, copartners, doing business under the firm name of Copenhagen Bros. Decree for plaintiff, and the defendants appeal. On motions to dismiss the appeal, for an injunction, and for citation for contempt. Motions denied.

A decree was entered in the circuit court in the above-entitled case on the 18th day of October, 1918, whereby it was decreed that a certain contract between the plaintiff and defendants be rescinded and annulled. It was further ordered that the defendants be restrained and enjoined from the further use or control of an invention known as the "Helms Groover and Dubber" and described in the application filed in the United States Patent Office, September 22, 1917, and enjoining the defendants from the further manufacture or sale of said invention, and from making any contracts therefor and also ordered:

"The defendants to turn over to the plaintiff within five days from this date, all machines known as the 'Helms Groover and Dubber' which had been purchased or in any way acquired out of the proceeds of the business conducted by the said defendants in connection with the aforesaid contract from the time the same was entered into to date hereof."

It appears by the original contract between the plaintiff and defendants, which was rescinded by the decree, that the Copenhagen Bros. agreed to take over this patent manufacture, sell, and operate the machines, and divide the profits with the plaintiff. On account of an alleged violation of the contract, the same was rescinded.

On the 21st day of October, 1918, defendants filed a notice of appeal to this court. On the same date, the defendants obtained an order of the court:

"That the defendants shall have the right pending the final determination of this cause in the appellate court to operate sixteen (16) machines known as the Helms Groover and Dubber machines, but no more, and that as a condition to said operation they shall file a bond in favor of the plaintiff in the sum of ten thousand ($10,000.00) dollars."

Thereafter the defendants filed two separate undertakings on appeal to which objections were made and sustained by the court. On November 7, 1918, defendants filed an undertaking on appeal with the United States Fidelity & Deposit Company as surety thereon. The court approved the undertaking in the following language:

"Bond is hereby approved without affecting decree or changing same in any way, November 7, 1918."

By an order dated November 8, 1918, the court made a formal order approving the undertaking and declaring it "to be in the aggregate amount fixed by the court for the performance of the several obligations therein."

Alfred P. Dobson, of Portland (Robert Krims, of Portland, on the brief), for appellants.

Thomas Mannix, of Portland (George Arthur Brown, of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The plaintiff moves the court for a dismissal of the appeal for the reason that the undertaking is limited in the sum of $10,000, and also asks that defendants be restrained from further operating the machines.

After the formal part of the undertaking in question, it first provides that--

The defendants and their surety "do hereby jointly and severally undertake and promise on the part of said defendants and appellants that defendants and appellants will pay to the plaintiff all damages, costs and disbursements which may be awarded it on said appeal, and further that said defendants and appellants will satisfy said decree or judgment so far as it may be affirmed on appeal if the same or any part thereof be affirmed on appeal."

This portion of the undertaking is in strict compliance with section 551, subd. 1, L. O. L. It is not limited.

The undertaking further provides that--

"Said principals and surety do further jointly and severally undertake and promise on the part of said defendants and appellants in the sum of $10,000.00 that the said defendants and appellants will obey the decree of the appellate court as to the transfer or delivery of any of the personal property required to be transferred or delivered and will render such an account and pay such sums for the continued operation, pending the appeal, of the said personal property as may be decreed, ordered, or adjudged by the appellate court."

Subdivision 3 of section 551 directs as follows:

"If the decree appealed from require the transfer or delivery of any personal property, unless the things required to be transferred or delivered be brought into court, or placed in the custody of such officer or receiver as the court may appoint, that the appellant will obey the decree of the appellate court. The amount of such undertaking shall be specified therein, and be fixed by the court or judge thereof."

The undertaking approved by the court is substantially the same in form as the two prior undertakings which were tendered and rejected. No objection appears to have been made to the form of either of the undertakings, but only to the surety on the first two. The further undertaking above quoted appears to be in compliance with subdivision 3 of section 551, as well as with the order of the court relating to the use of the machines. This subdivision, it will be noticed, directs the court to fix the amount of the undertaking, which amount must be specified therein. We fail to see any defect in this undertaking or any provision that in any way conflicts with the requirements of section 551. The decree provided for the transfer of certain personal property, and it was therefore appropriate for the trial court to fix the amount of such further undertaking pursuant to subdivision 3.

Some objection is made for the reason that counsel for plaintiff were not present on October 21, 1918, when the court made the order fixing the amount of the undertaking, and limiting the operation of the machines. The order recites that the plaintiff appeared by its attorneys George Arthur Brown and Thomas Mannix, and the defendants appeared by their attorneys Robert Krims and Roscoe R. Johnson, and that it appeared to the court:

"That the defendants have heretofore filed a notice of appeal, and it having been agreed upon in open court by and between the attorneys for the respective parties that the defendants should operate only sixteen (16) of the machines known as 'Helms Groover and Dubber' machines and no more pending the determination of this cause upon appeal."

If there is any error in the orders of the court, as entered in the record, a correction thereof should be made upon proper application therefor in the trial court. An appeal does not deprive the trial court of all power to act pending the appeal. As a general rule, the pendency of an appeal does not divest the trial court of the power to correct its record so it will conform to the truth and truly set forth the proceedings as they actually occurred. 2 R. C. L. § 95, p....