Jaynes v. Weickman

The appellants in this case have asked this court to grant a su-persedeas pending their appeal from the judgment. Pending the appeal, the superior court undertook to punish appellants for contempt of court. The alleged contempt consisted of appellants’ continued use of a certain trade name in violation of the terms of an injunction embodied in the judgment from which the appeal was taken. Appellants filed a petition for a writ of prohibition, but this court, being of the opinion that

The facts pertinent to the inquiry, as disclosed by the judgment-roll, briefly are these: For some time prior to the commencement of the action plaintiff, the respondent on the appeal, had conducted, under the trade name “The Active Transfer Company,” the business of transferring, for hire, baggage and luggage from place to place in the city of Los Angeles. The appealing defendants, that is, the defendants other than the telephone company, since some time prior to the action, have been engaged in a similar business in the same city, using in that business the trade name “The Action Transfer Company.” That name and other similar descriptive trade names were displayed upon the trucks, stationery, and place of business of the appealing defendants, and likewise in certain display advertisements in the telephone directory of the defendant Southern California Telephone Company, that company having issued its latest telephone directory shortly prior to the entry of the judgment in the action. The superior court found that the trade name adopted and used by the appealing defendants was calculated and intended to and did deceive the patrons of plaintiff and the public in general, and that its use by those defendants had damaged plaintiff’s business.

The- judgment adjudges and decrees, in substance and effect, that the appealing defendants be perpetually enjoined from advertising and carrying on their business as “The Action Transfer Company,” and from using the words “Action Transfer Company” in any manner whatsoever. The judgment likewise decrees that the defendant Southern California Telephone Company change the telephone number that is listed in its telephone directory in connection with the name “The Action Transfer Company.” The telephone company has not appealed from the judgment. Since the appealing defendants, the defendants who are asking for the writ of supersedeas, are not directed to change the number in the telephone directory, that injunctive part of the decree being directed solely to the telephone company, and since, therefore, the appealing defendants cannot properly be proceeded against for contempt by reason of any failure

In the contempt proceedings, initiated subsequently to the date when the appealing defendants took their appeal from the judgment and filed the three hundred dollar undertaking in due form, it was made to appear to the superior court, by affidavit, that each of the defendants by whom the appeal has been taken, subsequent to the receipt of notice of entry of the judgment, continued to allow the name “Action Transfer Company” to remain on the trucks and vehicles owned and driven by them, that their place of busings is still conducted under the trade name that they always have used, that of “The Action Transfer Company,” and that they are carrying on their business without having made any change in their advertisement signs.

The motion for the writ of supersedeas is based upon the claim that those parts of the decree that, in effect, enjoin the appealing defendants from continuing to carry on their business under the name “The Action Transfer Company” were stayed by the appeal from the judgment. This claim is based upon that provision of section 949 of the Code of Civil Procedure whereby it is declared that in cases not provided for in sections 942 to 945, inclusive—and this is not one of them—the perfecting of an appeal by giving the three hundred dollar undertaking “stays proceedings in the court below upon the judgment or order appealed from.”

[1] It is well settled, indeed conceded, that an appeal does not stay the operation of a preventive or prohibitory injunction. (Merced Min. Co. v. Fremont, 7 Cal. 130 ; Heinlen v. Cross, 63 Cal. 44 .) Equally well settled is it that an appeal does stay the operation of a mandatory injunction, i. e., one that compels affirmative action. {Schwartz v. Superior Court, 111 Cal. 106 , [ 43 Pac. 589 ]; Clute v. Superior Court, 155 Cal. 15 , [ 132 Am. St. Rep. 54 , 99 Pac. 362 ].) The reason for this distinction is found

[2] The injunctive features of the decree under consideration here enjoin the appealing defendants from continuing to do certain things. An order or decree restraining the further continuance of an existing condition does not take on the character of a mandatory injunction merely because it enjoins the defendants from continuing to do the forbidden acts. An injunction that restrains the continuance of an act or series of acts may be just as much a preventive or prohibitory injunction as one that restrains the commission of an act. (State v. Superior Court, 39 Wash. 115 , [ 109 Am. St. Rep. 867 , 4 Ann. Cas. 229, 1 L. R. A. (N. S.) 554 , 80 Pac. 1108 ] ; United Railroads v. Superior Court, 172 Cal. 85 -87, [ 155 Pac. 463 ], and cases there cited.)

Appellants, contrary to the injunctive inhibitions, are continuing to carry on their business under the proscribed trade name. They are not enjoined from engaging in the transfer business in the city of Los Angeles or elsewhere. What they are enjoined from doing is to use in their business the interdicted trade name. It is true that, in order to carry on their business in a manner conformable to the injunctive features of the judgment, they must remove the forbidden trade name or names from their trucks, from

According to all the definitions, the injunction embodied in the decree is preventive or prohibitive. An injunction which prohibits the infringement of a right adjudged to belong to the plaintiff is not mandatory merely because the defendant may incidentally be compelled to perform some act; and the courts, as said by Mr. Justice Henshaw in the United Railroads case ( 172 Cal. 88 , [ 155 Pac. 463 ]), “have been swift in holding that the character of a prohibitive injunction was not transformed and made mandatory because it incidentally involved the doing of an affirmative act.” The same learned jurist also says in that case that “the court will not destroy the relief granted by any excessive astuteness in selecting some minor mandatory feature of the injunction and holding that that should control the consideration of the nature of the relief awarded.”

In Georgia the granting of a mandatory injunction is prohibited by statute. In Merchants & Miners' Transp. Co. v. Grainger etc., 132 Ga. 167 , [ 63 S. E. 700 ] the injunction restrained the defendant “from refusing to receive and carry the lumber of the plaintiff in the order in which it is duly tendered for shipment.” It was contended that this was not a preventive injunction, but was strictly man

The applicants for the writ of supersedeas tell us that the writ is necessary to preserve their status quo and to avoid the consequences of a mere “barren victory” should they be successful on their appeal from the judgment. But, to quote again from the opinion of Mr. Justice Henshawin the United Railroads case, “there is no magic in the phrase ‘maintaining the status quo’ which transforms an injunction essentially prohibitive into an injunction essentially mandatory.” Probably most injunctions, especially those granted pendente lite, are necessary to the protection, declaration, or establishment of some disputed property right; but the operative effect of a strictly prohibitive injunction is not for that reason stayed by an appeal. (Wolf v. Gall, supra.)

Sufficient, we think, has been said to show that in its essence the injunction embodied in the judgment in this case is prohibitive and restrains continued acts of infringement upon a right which the decree adjudges to be plaintiff’s exclusive property, namely, the right of plaintiff to the exclusive use of the business name “The

The order to show cause is discharged.

[Works, J., and Craig, 3"., concurred.