*1 471 on 9 labor claims out of the 13 annual involved in the conflict area. stated,
For the reasons of the trial court court, reversed, the cause remanded said with direc- trial, grant respondent’s at new cost. tions J., STRAUP, THURMAN, CHERRY, C. and GID- JJ., EON, concur. J., being disqualified, participate
HANSEN, did here- in. CO. et v. al. DAIRY al. VAN GERVEN et LEAF
CLOVER January 7, (275 9.) 1929. P. Decided No. 4678.
Stewa/rt, Budge, City, & re- Alexander Lake for of Salt spondents. Jamies, City, appellants.
F. W. of Salt Lake HANSEN, J. George Mathison, Gerven, A. Van
The defendants Gerard They guilty of of court. R. Bruce were found appeal.
On October the district court of Lake Salt county defendants, entered a decree which de- following provisions: cree contained the defendants, them, agents and each servants, “That of employees, persons acting them, and all in aid or assistance of any them, be, they are, or or is, either and each of them hereby permanently enjoined taking restrained into their possession control, operation or under their or in the conduct or dairy defendants, any them, otherwise, business of said or any glass glass milk or cream bottles which have blown into made, globular monogram, said bottles are form of a name, the trade mark or respectively, say: description name, is to follows a [Here the trade mark or insignia] defendants, per- them, and the said and each and all *3 acting, them, any them, are, sons in aid of or assistance or or either of is, hereby permanently and each of them also restrained and en- joined taking possession from control, into their or under their or dairy otherwise, in the of their said conduct or business any bearing metal name, cans or wooden eases the aforesaid trade * * *” plaintiffs respectively. mark or of the 15, 1927, copy On October a of the decree notice of and signing the same were and served attorney. On October an affidavit filed was case, reciting in the provisions of the decree and charging Up the defendants with a violation thereof. filing requiring
on the affidavit an order was issued appear the several defendants to before Hon. William S. Marks, judges of one of district of Lake court Salt county, why adjudged cause should be and show guilty contempt a of court for violation of the of decree 13, appeared October 1927. and entered on allegations generally of affidavit. A trial denied Findings joined. of were upon the issues thus fact was adjudged guilty contempt made, of and the defendants were following 13, 1927. The court’s decree against rendered them: punishment adjudged hereby for said ordered and as is “It pay Van Gerven shall a fine A. forthwith the said Gerard misconduct pay dollars, said fine in addition to to the and shall hundred of one 474 $49.45, plaintiffs of the amount which finds the sum the court is indemnify plaintiffs necessary necessarily by for costs incurred contempt. result of said them aas adjudged punishment and that as for “It further ordered said is George pay defendant Mathison misconduct the said shall forthwith fifty dollars, pay in fine and shall addition to said fine to the a of $25.30, plaintiffs of the amount which court finds the sum is necessary indemnify plaintiffs necessarily costs incurred for contempt. by them a result of as said adjudged punishment “It is further and that as for ordered said pay the said R. Bruce shall a misconduct defendant forthwith fine fifty dollars, plain- pay shall addition to said fine to the $25.35,
tiffs the sum of the amount which the court finds is neces- sary indemnify necessarily by for incurred costs contempt. them as result said adjudged “It is further ordered and the said defendants Gerven, George Bruce, Gerard A. Van and R. and each Mathison county them, jail county, be committed until to the of Salt Late pays day’s costs, proportion each his said one fine imprisonment every dollar of said fine and costs.” assignments appellants’ judg- One of error is contrary Comp. appealed ment from is to and law. 7068, provide: Laws Utah §§ “Upon taken, judge 7067. or answer proceeded against person guilty must whether the determine charged, adjudged guilty and if it be that he is of the con- tempt, may exceeding may imposed $200, be on him he a fine *4 imprisoned exceeding thirty days, be not or both.” injury special party in an 7068. “If an actual loss or to a action or prejudicial right therein, by contempt, proceeding, is caused to his the imposed court, imprisonment fine or for the in addition to the may person proceeded against contempt, place thereof, or in order the pay aggrieved money indemnify party to a sum of sufficient to acceptance satisfy expenses; him to his which order and the costs aggrieved party money by for under it is to an action a bar injury.” such loss and nothing language that there is in the will be observed 7067, supra, that the court used in authorized to section penalty contempt. for impose part a The costs as by support pro- judgment costs must reason of the for find visions of 7068, supra. section Under provisions that section no authority given the court to order the de- fendants imprisoned, if the costs paid. are pro- not visions of section clearly 7068 are intended to enable the aggrieved party pursue to remedy his against civil wrongdoer in the proceedings.
It will be observed that judgment under appealed from the defendants were each ordered committed to the county jail of county Salt Lake pays until each his fine proportion costs in the day’s imprisonment of one every for dollar of such fine and costs. The costs assessed the defendants were for cause, service of the order to show $8.66; issuing clerk’s fees for cause, $2.50'; order to show for appeared fees trial, $19; attorney’s witnesses who at the by court, fee party allowed proceed- a $75. When to a ing costs, money judgment such as this is awarded a including attorney’s fees, we know no rule law that requires party satisfy judgment the successful to his at the adversary day vanquished rate of for each $1 his languishes jail. any per- Nor do we know of law that imprisonment judgment mits the of a he debtor because may pay judgment money be to unable a for costs and at- torney’s part judgment requires fees. That county jail the defendants to time in serve if the costs reversed, paid are not must is void. As be express authority opinion we no imprisoned paid. if order the fine is During and Bruce the trial the defendants Mathison 15, of sale October offered in written bill dated dairy whereby purported to busi transfer Bray. Van Annie De The defendant Ger- ness one on October the effect that ven offered evidence to son, dairy his business his he transferred op owner or he time has been that since objected To both offers of the business. erator sought elicited ground the evidence to be upon the ap- irrelevant, immaterial, and that it incompetent, *5 peared on its subterfuge face to be a part the on of defen- objections rulings dants. The were These sustained. assigned the are as error. offered,
Before this in- plaintiffs evidence was the had testimony tending troduced show Holland that both the Dairy the Buttercup Dairy and had in distributed milk bot- bearing insignia tles plaintiffs, the of the these and that bottles had been used so after the defendants been en- joined using that, appears from the same. It further when enjoined the defendants were milk bottles con- taining name, mark, plaintiffs, the trade of the engaged the defendant Van was Gerven the owner and operating Dairy, in the Holland and that engaged Mathison and Bruce the were owners alleged operating Buttercup Dairy. It in the affidavit upon which the order to cause was issued that show conducting Van defendant Gerven was owner alleged contempt Dairy com- Holland when was alleged that mitted. is there also the defendants Mathi- conducting the son and Bruce were the owners of and Dairy alleged contempt Buttercup was committed. when The further shows that counsel for the record took the that the fact that the de- and the trial court view of the was the owner of and control fendant Van Gerven Dairy, Bruce defendants Mathison and Holland Dairy Buttercup of the of and in control were the owners entered, 1927, was at the time decree they showing burden cast conducting dairies the same the owners were not charged disobeying terms with at the time were behalf was evidence offered on There some of the decree. con- was the defendant Van Gerven plaintiffs that alleged Dairy con- the time Holland at with nected committed, there was some evidence and likewise tempt with the Butter- was connected Mathison defendant that the alleged contempt was committed. Dairy when cup Bruce with the the defendant only connected
477 operation of the Buttercup Dairy alleged at the time the contempt was committed was the fact that he was one the owners Buttercup of the Dairy when the decree of October was entered.
Upon this clearly record we opinion are of the the defendants were to entitled show who were the owners and in control of the Buttercup Holland and Dairies when the complained acts of were judge committed. The learned trial may well suspicion have proferred looked with evi- dence, justify rejection. but this did not process its Due hearing of law quite demands before condemnation. It is generally impossible given to determine that a transaction subterfuge, is a mere until the facts after and circumstances surrounding inquired such transaction have been into. infrequently happens in the trial of a case that evidence appears unbelievable when first offered becomes con- vincing investigation. after further
Whether the were or defendants were the owners Buttercup Dairies, engaged the Holland and and in deliver- containing ing directing delivery or in milk bottles gravamen insignia charge plaintiff, of the of the the defendants. If the defendants had been made go question permitted ownership into the and Dairy, Dairy Buttercup Holland and the no control of the have been the one can tell in advance what would result investigation inquiry. very At threshhold of such offering precluded touch- from evidence were right or ing ownership control control dairies and insignia containing the milk was delivered bottles whose right had a sell plaintiffs. The defendants of the same, parted having once sold dairy business, clearly guilty thereof, not be would the control with disregard in title chose to their successors if are of the 1927. We decree of the the terms admitted evi- have court should the trial opinion that Mathison of sale the bill dence Van the defendant Bruce, offered his son, Gerven sold business to his and that re- prejudicial fusal to admit this evidence was error. Contention also made enjoining the decree defendants from containing the milk bottles name, mark, the trade opinion
is void. We are of the that this contention *7 is without merit. assign
Defendants also error as follows: “That the said judgment suported by is not the evidence in this: That clearly the evidence shows each one of the de had sold their operat fendants business and were not ing law, in violation of the and that the evidence clearly that shows defendant Van he Gerven believed that sixty days before the decree became effective.” assignment The is without merit. The evidence not does only show that defendants had sold their businesses. The by affecting evidence offered the defendants the sale of plaintiffs’ their business was not admitted. One wit- nesses testified that Van stated to him that Gerven the de- operative cree did become until the days. expiration of 60 The mere fact that Van Gerven duty cannot made such statement relieve him of the obey court’s decree. The evidence is not insufficient judgment particulars specified support the in the under foregoing assignment. stated, judgment the reasons is reversed. The
For county, to the district court of is remanded Salt Lake cause grant Ap- to that a new trial. with directions their costs. pellants are awarded STRAUP, J., concur., THURMAN, J., and C. GIDEON, J. modified, judgment should be re-
I think attempt part on the of the trial court to en- versed. attorney by imprison- costs judgment for fees its force by ruling clearly the statute. The not authorized is ment excluding pretended of the court bills sale should not, my judgment, work a judgment. reversal of the apparent from the record that these sales were mere subterfuges, I do excluding not think the court erred in them, especially in view of the statement of counsel de- testimony, at fendants the close of the appears in the record, that pretended executed these bills counsel, sale under advice of and that he he considered justified advising them, in so and that he did so on permit account of the fact to of the court to practically destroy in force would be his clients’ businesses. could, course, way These facts no be a defense to the contempt. proceedings for
CHERRY, foregoing. IJ. concur in the CO. FISH LAKE RESORT v. INDUSTRIAL COMMIS *8 SION OF UTAH et al. February 20, (275 580.) Decided 1929.
No. 4733. P.