Choynski v. Cohen.

CHOYNSKI V. COHEN, appellant.

(39 Cal. 501.)

Trade-mark-Name indicating business.

The plaintiff gave to his place of business the name of "Antiquarian Book Store," by which name it became widely known. The defendant, having a rival store, adopted substantially the same name. Held, that the name could not be appropriated as a trade-mark.

THIS was action for damages for alleged violation of a trade-mark, and to restrain further violation.

O. L. Lane, for appellant.

Quint & Hardy, for respondent.

CROCKETT, J. The defendant's motion to set aside the default taken against him for a failure to answer was properly denied. The excuse given in his affidavit for his omission is fully denied by the counter affidavit of the plaintiff.

The only question which remains to be considered is, whether or not the complaint states a sufficient cause of action to support the judgment. If the complaint exhibits no cause of action, even a judgment by default will be reversed on appeal. Abbe v. Marr, 14 Cal. 210.

The action is to recover damages for a violation of the plaintiff's trade-mark, and to restrain the use of it in the future. The complaint alleges that in 1863 the plaintiff established a book, periodical and stationery store in San Francisco, and gave to his place of business the name of "Antiquarian Book Store," by which name it has ever since been known; that this name was placed upon his sign, stamped upon all articles sold by him, and used in his correspondence; that he advertised by that name in newspapers, and used it in his business transactions generally. The grievance complained of is, that the defendant has set up a rival establishment under the name of the "Antiquarian Book and Variety Store." It is plain that the plaintiff could not acquire any exclusive right to use as a trademark the terms "book store" separated from the word "antiquariau. Terms in common use to designate a trade or occupation cannot be exclusively appropriated by any one. Otherwise, only

Choynski v. Cohen.

one person would have the right to designate his place of business a "book store," "tinner's shop," "drug store," "hotel," etc. It must, therefore, depend upon the effect of the word "antiquarian," as used in connection with the words "book store," whether or not the plaintiff has acquired an exclusive right to the use of these words as a trade-mark. The word "antiquarian," as applied to a book store, can have no other meaning or effect than to indicate to the public that the proprietor deals in a certain class of books, to wit: ancient books, or books pertaining to antiquity. Any one reading the sign "Antiquarian Book Store" over the door would naturally expect to find there for sale either ancient books, or books treating on subjects connected with antiquity.

In any other sense the word "antiquarian" could have no significance as applied to a book store. In other words, it indicates only that a certain class of books are sold there. It could not, by even a forced construction, be made to signify that the plaintiff's business had been long established, and was of an ancient origin; for the complaint informs us that the business was established in 1863, and that it had the name of the "Antiquarian Book Store" from the beginning. It is plain that the object of the plaintiff in the use of the word " antiquarian" was simply to indicate that a particular class of books was sold there, precisely in the same sense that the words "Law Book Store," or " Medical Book Store," or " Divinity Book Store," would indicate that law, medical or religious works were for sale. If we are correct in this interpretation of the words, it is obvious the plaintiff could no more appropriate them as a trademark than could a dry goods dealer the words " French Silk Store," or a dealer in hats the words "Felt Hat Store," or a merchant the words "Ladies' Shoe Store," in which cases the words employed would simply notify the public that a particular class of merchandise, as contradistinguished from other merchandise of the same general description, was for sale there. In all such cases, the words employed are but an advertisement that the proprietor deals in a certain class of goods; and it would be a somewhat startling proposi tion to announce that the first shoe merchant who puts over his door the words "Ladies' Shoe Store" acquires the exclusive right to use these words as a trade-mark. In the case of Falkinbury et al. v. Lucy, 35 Cal. 52, this court had occasion to examine with much care the principles which underlie this case; and without repeating here the argument to be found in the decision of that case, it will

Taylor v. Shew.

suffice to say, that, upon reason and authority, not less than upon the principles decided in the case referred to, we are satisfied the plaintiff had no right to appropriate the words "Antiquarian Book Store" as a trade-mark; and, consequently, that the complaint contained no cause of action. Judgment reversed and cause remanded, with an order to the district court to dismiss the action.

TAYLOR V. SHEW, appellant.

(39 Cal. 536.)

Action on judgment rendered in another state.

An action may be maintained on a judgment rendered by a court of competent jurisdiction in another state, notwithstanding an appeal from such judgment is pending.

THE facts are stated in the opinion.

Jas. W. Winans, for appellant.

Scripture & Bugbee, and John T. Doyle, for respondent.

SPRAGUE, J. This is an action brought upon two judgment, alleged to have been recovered by plaintiff against defendant in the court of common pleas of the city and county of New York, state of New York. The complaint is in the usual form, containing a count for each separate judgment.

The specific denials of the answer, in the form presented, do not put in issue the material allegations of the complaint, and the substantive matter therein alleged in bar of the action does not constitute a defense thereto. Scott v. Pilkington, 110 Eng. Com. Law (2 Best & Smith), Q. B. 11; Nill v. Comparet, 16 Ind. 107; Burton v. Reeds, 20 id. 87; Suydam v. Hoyt, 1 Dutcher (N. J.) 231.

The substance of the matter alleged in bar of the action is, that within due time after the rendition of the judgments sued upon, defendant appealed therefrom to the court of appeals of said state of New York; perfected such appeal by filing an undertaking on appeal, as required by the laws of New York, in the sum of $250

Merritt v. Glidden.

caused the proper return to be made and filed with the clerk of said court of appeals, and otherwise duly performed all the conditions and acts required to be performed by him in the premises; and that said appeal was and is being prosecuted with all due diligence; that Baid appeal is still pending and undisposed of, and was so pending and undisposed of at the commencement of this action; and that no determination thereof can be had for six months or more.

The answer does not allege that the appeal, as taken and perfected to the court of appeals, from said judgments had, by the laws of New York, the effect of suspending the judgments thus appealed from, or of staying the execution thereof, nor is it alleged that the undertaking on such appeal was to the effect that the sureties thereon were bound, in double the amount named in the judgment, that if the judgment appealed from, or any part thereof, be affirmed, the appellant would pay the amount directed to be paid by the judgment, or that any order was entered staying proceedings upon or execution of the judgment.

In the absence of any proof to the contrary, the presumption is that the effect of the alleged appeal by the laws of New York is the same as in this state; and in this state such appeal would not stay execution or proceedings for the collection of the amount of the judgment appealed from, pending the appeal, nor destroy or weaken the force and effect of the record of the judgment as evidence of the facts or matters necessarily determined thereby.

Whether by an appeal from a judgment, in which appellant had given an undertaking on appeal in form and amount sufficient to stay proceedings for its enforcement, the effect of the record of the judgment as evidence is thereby suspended or nullified, is a question not involved in this case.

Judgment affirmed.

MERRITT V. Glidden.

(89 Cal. 559.)

Bankruptcy—stay of proceedings on appeal.

After judgment in an action and appeal taken by the defendant, he was adjudged a bankrupt by the register in bankruptcy, and filed the adjudica tion in the appellate court. On application for a stay of proceedings, held, that the judgment was final within the contemplation of section 21 of the bankrupt act, and that the stay could not be granted.

Merritt v. Glidden.

THIS was an action for freight on a cargo of lumber. The neces sary facts are stated in the opinion.

RHODES, C. J. (after deciding a question of practice):

After the cause was submitted to this court, on briefs to be filed, the counsel for the defendants, who are the appellants, filed in this court an adjudication of the bankruptcy of the defendants, rendered by the register of the district court of the United States for the district of California, after the appeal was taken. The purpose 's, to have the proceedings in this court stayed, until the question of the defendant's discharge shall be determined.

The bankrupt act (14 U. S. Stat. 526, § 21) provides that "no creditor whose debt is provable under this act shall be allowed to prosecute, to final judgment, any suit at law or in equity therefor, against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy, on the question of the discharge, provided there be no unreasonable delay on the part of the bankrupt, in endeavoring to obtain his discharge."

No authorities are cited by counsel, which throw any light on the question whether an adjudication of the bankruptcy of a party, against whom a judgment had been rendered, would have the effect to stay proceedings on an appeal which had been taken by him from the judgment.

The judgment from which the appeal is taken is, in our opinion, final, in the sense of the statute. It was not, we think, the purpose of the statute to suspend the right of the plaintiff to maintain in the appellate court the correctness and validity of a judgment, from which the bankrupt might choose to take an appeal, until the determination of the question of the discharge of the bankrupt. To give the statute that construction would place it in the power of the bankrupt to delay, and thus defeat, remedies to which the plaintiff was entitled, and that, too, in cases where the appeal would be dismissed on motion of the plaintiff.

NOTE.

Judgment affirmed.

In re Metcalf, B. R. Sup. 43; 2 Ben. 78, it was held, that a judgment rendered in the court below, from which the defendant had taken an appeal, was not a final judgment within the meaning of the bankrupt act, and that when proceedings were taken subsequent to the appeal, and the defendant declared a bankrupt, he was entitled to a stay. — REP.