Wilson v. Byron Jackson Co.

• Decision Date: 03 December 1937
• Docket Number: No. 8339.,8339.
• Citation: 93 F.2d 577
• Parties: WILSON et al. v. BYRON JACKSON CO.
• Court: U.S. Court of Appeals — Ninth Circuit

93 F.2d 577 (1937)

WILSON et al. v. BYRON JACKSON CO.

No. 8339.

Circuit Court of Appeals, Ninth Circuit.

December 3, 1937.

John Dales, Jr., of Los Angeles, Cal., for appellant Wilson.

Raphael Dechter, of Los Angeles, Cal., for appellant Rush.

Lyon & Lyon, Frederick S. Lyon, and Leonard S. Lyon, and Henry S. Richmond, all of Los Angeles, Cal., for appellee.

Before WILBUR, STEPHENS and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

Appellants, William Webster Wilson and J. D. Rush, were cited to show cause why they should not be adjudged guilty of contempt for a violation of an interlocutory injunction issued in a suit brought by Byron Jackson Company, a corporation, appellee, against William Webster Wilson to secure a permanent injunction against the infringement of appellee's patents, and for an accounting.

The citation also directed the appellants to show cause "why the plaintiff should not have judgment against you for plaintiff's costs and expenses in this proceeding, and for plaintiff's damages caused by your violation of said injunction." The order to show cause was based upon affidavits filed by appellee; it directed that the hearing should be upon affidavits and that the appellants should serve and file in affidavit form "any showing on their behalf herein on or before the 25th day of August 1935," and that affidavits in rebuttal should be filed before August 30, 1935. The return day was September 3, 1935. On October 17, 1935, after hearing, the trial court made its decree adjudging both William Webster Wilson and J. D. Rush guilty of contempt by violating the terms of the interlocutory injunction. The latter was not a party to the action. The order directed that each appellant pay a fine of $125 "to the clerk of this court for violation of the court's authority, and, as a remedial judgment, are further assessed a penalty for the benefit of the plaintiff herein, the amount thereof to include the costs and expenses of the plaintiff incurred in connection with the contempt proceedings, and including all expenses incurred in the investigations of the acts of the defendant, William Webster Wilson, and of the respondent, J. D. Rush, to show that they had violated said injunction, together with counsel fees, which the Court finds, after considering the verified statement of expenses and disbursements filed by the plaintiff herein, to be in the sum of ten hundred forty-four dollars and 57 cents ($1,044.57). That all of said amounts are required to be paid as a fine and punishment for the contempt of which the defendant, William Webster Wilson, and the respondent, J. D. Rush, have been found guilty. * * *" The order further provided that a writ of execution should issue, and, if the amounts were not paid within three days after the return of the writ, appellants should be committed to the custody of the marshal to remain in the county jail until they made "full satisfaction of said sums required to be paid as a fine and punishment for said contempt." Each appellant petitioned the District Court for an allowance of an appeal, Rush by petition dated October 25, 1935, filed October 28, 1935, and Wilson by petition dated October 26, 1935, filed October 30, 1935. Appeals were allowed on October 29, and October 30, 1935.

At the outset, we must inquire as to our own jurisdiction. If the contempt order had been wholly remedial, it would have been interlocutory and hence not appealable. Fox v. Capital Company, 299 U. S. 105, 57 S.Ct. 57, 81 L.Ed. 67; Union Tool Co. v. Wilson, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848; In re Merchants' Stock & Grain Co., 223 U.S. 639, 32 S.Ct. 339, 56 L. Ed. 584; Flat Slab Patents Co. v. Turner C.C.A. 285 F. 257; Perfection Cooler Co. v. Rotax Co. C.C.A. 296 F. 464; In re Paleais C.C.A. 296 F. 403; Heller v. National Waistband Co. C.C.A. 168 F. 249; Cutting v. Van Fleet C.C.A. 252 F. 100, except as to appellant Rush, see Mitchell v. Lay C.C.A. 48 F.2d 79. However, that part of the contempt order imposing a fine against each appellant payable to the clerk of the court for violation of the court's authority was punitive, and for the purpose of review fixed the character of the order as one for the punishment for a criminal contempt. It, therefore, was a final judgment from which both appellants were entitled to appeal. Union Tool Co. v. Wilson, supra; In re Merchants' Stock & Grain Co., supra; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Goodyear Tire & Rubber Co. v. Jamaica Truck Tire Service Co., C.C.A., 66 F.2d 91.

The remaining jurisdictional question then is, Were the appeals taken in accordance with the statutes or rules governing such appeals? This question turns upon the applicability of the new rules regulating criminal appeals adopted by the Supreme Court, to an appeal from a judgment in a case of criminal contempt. In a recent decision by the Circuit Court of Appeals for the Eighth Circuit, Russell v. U. S., 86 F.2d 389, it was held that an appeal taken from an adjudication of criminal contempt was "sued out" in "due form." An inspection of the record in that case shows that the appeal was taken in accordance with the new rules after a trial and sentence by the court, which had denied the appellant's demand for a jury. We think this ruling of the Circuit Court of Appeals is correct.

It is arguable that the new rules for criminal appeals apply only to cases in which the defendant is entitled to a jury, but we think they are broad enough to cover appeals in all criminal cases for the reasons now to be stated:

On May 7, 1934, in pursuance of legislative authority therefor, 28 U.S.C.A. § 723a, the Supreme Court promulgated rules fixing the method of taking an appeal in criminal cases. That method provides that "an appeal shall be taken within five (5) days after entry of judgment of conviction, except that where a motion for new trial...