133 Ind. 355 | Ind. | 1893
This was an action by the appellant against the appellees, in the Allen Circuit Court, to enjoin the latter from the use of a trade-mark.
It is alleged in the complaint, among other things, that prior to the 25th day of February, 1890, the appellee, Charles A. Berndt, was engaged in the business of manufacturing cigars, at No. 123 East Lewis street, in the city of Fort Wayne; that he had adopted and devised, as his brand, trade-marks and labels, the word “Rusty” stamped on the ends and sides of his cigar boxes, and, also, on the inside and outside of the lids of said boxes, to distinguish his goods from the goods of other manufacturers ; that on said day the appellant purchased from him all of his business at said place, including all tobaccos, cigars, shelving, moulds, presses, manufacturers’ supplies, * * trade-marks, brands and labels, and the exclusive right to use the same; that he- entered into the business of manufacturing cigars
In addition to the general denial, the appellee, Charles Berndt, filed an affirmative answer and a cross-complaint. A trial of the cause, by the court, resulted in a finding and decree in favor of the appellant, enjoining the appellees from using the trade-mark described in the complaint.
The appellant excepted to the form of the decree rendered by the court. He also filed a motion to modify the decree, which was overruled by the court.
His contention in this court is :
First. That the Circuit Court erred in overruling his demurrer to the affirmative answer of the appellee,
Second. That the Circuit Court erred in overruling his motion to modify the decree in his favor.
In the present condition of the record before us, no available error is to be found in the ruling of the court relative to the sufficiency of the affirmative answer and the cross-complaint. In finding for the appellant, the court necessarily found that the allegations in the cross-complaint, as well as the averments of the answer, were untrue. . The question, therefore, as to whether the facts averred in the answer constituted a defense, or whether the facts alleged in the cioss-complaint constituted a cause of action, is now wholly immaterial. Royse v. Turnbaugh, 117 Ind. 539.
The only mode by which the appellant could present to this court any question relating to the form of the decree in his favor, was by motion to modify such decree. Berkey, etc., Co. v. Hascall, 123 Ind. 502; People’s, etc., Association, v. Spears, 115 Ind. 297; Walter v. Walter, 117 Ind. 247.
At this point we are met by an objection, on behalf of the appellees, to the .effect that the motion filed by the appellant to modify the decree in this case is not in the record in such a form as to enable us to consider it.
It does appear that a written motion was filed by the appellant to modify the decree in this case. A hill of exceptions is also found in the record, upon the subject of a motion to modify the decree, hut such motion is not set out in the bill. Indeed, there is nothing in this hill of exceptions from which it can he inferred that such motion was in writing.
"We are of the opinion, therefore, that the motion to modify the decree of the Circuit Court is not in the record in such a form as to enable us to give it any consideration.
Judgment affirmed.