111 Cal. 106 | Cal. | 1896
This is a proceeding to review by certiorari an order or judgment of Department Seven of said superior court (Hon. A. A. Sanderson, J.) convicting petitioners of contempt for the alleged violation of an injunction. The facts pertinent to the inquiry are briefly these: The petitioners are the defendants in an action pending in said superior court, brought by Rudolf Hagen and Felix Eisele, wherein it is alleged
Pending the trial of the action, the superior court, on July 19, 1895, made an order in said action whereby petitioners, the defendants therein, were “ enjoined and restrained from using said word ‘ Louvre,’ or the words ‘ Old Louvre,' upon any sign or signs, lamps, transparencies, either engraved or painted, or otherwise arranged thereon, in connection rvith or in any manner in or about defendants’ restaurant and saloon at No. 1 O’Farrell street, in the city and county of San Francisco, state of California, or any other words or devices printed, painted, or stamped, or written on such signs or street lamps in such manner as to be a colorable imitation of the trade name of plaintiffs; and that defendants be required to remove their said lamps and transparencies upon which is now in any manner placed or appears the word ‘ Louvre,’ or the words ‘ Old Louvre,’ or any colorable imitation thereof; and that the said defendants, and each of them, be further enjoined and prohibited from using the said words, or either of them, in
It is conceded that the injunction, in so far as it requires petitioners to remove the signs bearing the name in controversy is mandatory in character; and it is further conceded that as to the mandatory features thereof, it is stayed and suspended in its effect by the appeal taken by petitioners from the order granting the
The objection that we are not at liberty to go beyond the recitals or findings in the judgment itself, in reviewing the action of the court below, is not well taken. While the writ of review is not a writ of error, and is not a means by which, as upon appeal, the mere manner of conducting the proceedings, the rulings of the court upon questions of evidence, and other matters within the jurisdiction, involving the merits, however erroneous they may be, can be reviewed, it is, nevertheless, a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends, not only to the -whole of the record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional fact. (People v. Board of Delegates, 14 Cal. 479; Lowe v. Alexander, 15 Cal. 301; Blair v. Hamilton, 32 Cal. 49; People v. Goodwin, 5 N. Y. 568.) In Blair v. Hamilton, supra, in reviewing by certiorari the order of the court below, it is said: “In many cases jurisdictional facts may not appear of record, either by failure of the inferior court or officer to follow the requirements of the law and make them of record, or because the law itself does not require it to be done. In such cases this court and all other courts having jurisdiction to review and correct the proceedings of inferior courts would be powerless unless it can compel the inferior tribunal to certify to this court not only what is technically denominated the‘record/
But while it is conceded that the removal of the signs cannot be compelled pending the appeal, it is contended that petitioners, in continuing business with the signs in place, were thereby using the said trade name in connection with their business in contravention of the prohibitory features of the injunction, and that this constituted a contempt of the order of the court; that such use could have been avoided by either quitting their business or removing it to other premises, and, failing to do this, the petitioners were properly punished. But assuming that this ivould constitute such use as would, under the facts of this case, render it obnoxious to the injunction in any sense, to hold under such circumstances that petitioners could be punished therefor pending the appeal would simply be enabling that to be accomplished indirectly which could not be done directly, and to deprive petitioners entirely of the benefit of the stay afforded by their appeal. “ The stay of proceedings pending an appeal has the legitimate effect of keeping them in the condition in which they were when the stay of proceedings was granted. It operates so as to prevent any future change in the condition of the parties.” (Merced Min. Co. v. Fremont, 7 Cal. 180.) To require petitioners to abandon their business or the premises would be working a very material, if not an irreparable change in the condition of the parties, notwithstanding the effect of the appeal was to stay all affirmative action in the premises.
It results inevitably from these considerations that the record discloses a case where the court had no power to proceed and punish the petitioners as for a contempt, and its judgment in that respect must be annulled,
Beatty, C. J., Harrison, J., Garoutte, J., McFarland, J., Henshaw, J., and Temple, J., concurred.