Pacific Coast Law Journal. VOL. 2. NOVEMBER 23, 1878. No. 13. Current Topics. SINCE our article appeared on "Our Insolvent Laws"broadly suggesting their unconstitutionality—we learn of numerous attacks made against those laws in different portions of the State. We have been referred to several State decisions bearing upon the question, but as they are to be used in future argument it would be improper to discuss them at this time. We will give them to subscribers, however, at the earliest moment consistent with our duty to those citing them. JUDGE DYER, of the United States District Court for the Eastern District of Wisconsin, decided on Tuesday last, in Leidesdorff vs. Flint, that the United States statutes relating to trade-marks are unconstitutional, being in excess of the powers delegated to the Federal Government, and that, therefore, he had no jurisdiction of action between citizens of the same State to enjoin the infringement of a trademark. The Constitution gives Congress the power to regulate commerce among the States, and "to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Judge Dyer held, that the protection of trade-marks was authorized by neither of these provisions, nor by any other provision of the Constitution. Supreme Court of California. OCTOBER TERM. [No. 6,047.] [Filed October 31, 1878.] GREGG, RESPONDENT, VS. PEMBERTON, APPELLANT. APPEAL-JUDGMENT ROLL ON APPEAL FROM JUDGMENT ORDERING PEREMPTORY WRIT OF MANDATE.-On an appeal from a final judgment ordering a peremptory writ of mandate, the peremptory writ, the Sheriff's return, nor an acknowledgment of satisfaction indorsed on the writ, constitute a portion of the judgment roll, and can not be considered; nor would they constitute a part of the record on the appeal from an order denying a change of venue. PLACE OF TRIAL-MOTION FOR CHANGE BECAUSE OF INTEREST ON PARt of Judge. -The defendant's affidavits showed that the Judge of the court before whom this action was pending formerly held warrants issued upon the same consideration as those involved in this action. This does not make him interested in the last mentioned warrants, or in the action to compel their payment. PRACTICE-JUDGMENT UPON THE PLEADINGS-WHEN ERROR.-Where an answer to an alternate writ of mandate states several facts as defenses to the action, it is error to order judgment for the plaintiff until the issues presented by the answer are disposed of. Appeal from the Sixteenth District Court, Kern County. The plaintiff made application for writ of mandate, averring that he presented a county warrant for payment to the defendant, who was the County Treasurer, and that there was sufficient money in the hands of said defendant to pay said warrant, but he refused to pay the same, and therefore he is entitled to an alternate writ of mandate compelling said Treasurer to pay said warrant or show cause. The defendant made demand for change of place of trial on the ground that the District Judge before whom the case was pending was interested in said action. Affidavits were offered in support of the demand, showing that the said Judge held and was interested in warrants similar to the one presented in this cause. eral facts as defenses. The defendant's answer stated sevBut the court denied the motion for change of venue on the ground that he had no interest in the warrant presented for payment, and upon plaintiff's motion rendered judgment awarding a peremptory writ of mandate upon the pleadings. The defendant paid said warrant in obedience to the peremptory writ. Defendant appealed from the order denying a change of venue, and from the judgment. Stetson & Houghton and Geo. E. Otis, for appellant. PER CURIAM. The defendant appealed from the order refusing to change the place of trial, and from the final judgment, ordering a peremptory writ of mandate to be issued. The plaintiff contends that an appeal will not lie because the judgment was satisfied that is to say, that the defendant had obeyed the peremptory mandate. For proof of that fact, he relies upon the peremptory writ, the Sheriff's return of service, and the plaintiff's acknowledgment of satisfaction of the writ, by means of the payment of the warrants indorsed upon the writ. But neither the writ, the return, nor the plaintiff's indorsement constitutes a portion of the judgment roll, and, therefore, can not be considered on an appeal from the judgment. They clearly do not constitute a part of the record on the appeal from the order refusing to change the place of trial. We are not to be understood as holding that if those papers had been presented on a motion to dismiss the appeals, or some other proper proceeding, the defendant's right of appeal would be deemed to have been waived or cut off by his obedience of the peremptory writ. With respect to the motion for a change of the place of trial, it is sufficient to say that the defendant's affidavits do not show that the Judge who tried the action was interested therein. The fact that he had formerly held warrants issued upon the same consideration as those involved in the action, does not make him interested in the last mentioned warrants, or in the action to compel their payment. The plaintiff moved for, and the court gave judgment for the plaintiff upon the pleadings. The answer stated several facts as defenses to the action; among others, that John M. Brite, one of the two who voted for the purchase by the county of the toll roads, was not then a supervisor of that county; also, that no commissioners were appointed to appraise the value of the old Baker grade toll road-one of the two roads mentioned in the resolution. It is unnecessary to examine the answer further at this time. It was error to order judgment for the plaintiff until the issues presented by the answer had been disposed of. Order refusing to change place of trial affirmed. Judgment reversed, and cause remanded for a new trial. CONCURRING OPINION. I concur in the judgment of reversal, and in the opinion, except in so far as it holds that the Judge was not disqualified on the facts stated in the affidavits. On that point I dissent. CROCKETT, J. [No. 6,049.] PER CURIAM. [Filed October 31, 1878.] BURKE vs. PEMBERTON. Upon the authority of Gregg vs. Pemberton, No. 6047, order refusing to change the place of trial affirmed, and judgment reversed and cause remanded for a new trial. [No. 6,072.] [Filed October 31, 1878.] PEOPLE vs. WEIL. PRACTICE-JUDGMENT BY DEFAULT-WHEN CAN NOT BE ENTERED BY THE CLERK. -In an action for the recovery of a district school tax, the summons must contain a notice: "unless the defendant appears and answers, the plaintiff will apply to the court for the relief demanded." The clerk is not authorized to enter a default in such an action. His authority is confined to actions upon contracts for the recovery of money or damages; in all other cases application for judgment must be made to the court. PER CURIAM. This action was brought under the provisions of Section 1847 of the Political Code, for the recovery of a district school tax. Judgment by default was entered by the clerk. The summons notified the defendant that if he failed to appear and answer the complaint, the plaintiff "will take judgment against you by default for the above named sum and accruing costs." It is provided by Section 1852 of the Political Code, that "the law regulating proceedings in civil cases in the courts of justice in this State, so far as the same are not inconsistent with the provisions of this article, is hereby made applicable to proceedings under this article." That article does not contain any provisions prescribing the form of the summons, where the suit is against the person indebted for the tax, and therefore it must conform to the provisions of the Code of Civil Procedure. Section 407 of that Code provides, that in an action other than an action arising on contract for the recovery of money or damages only, the summons must contain a "notice unless the defendant appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint." The publication of the summons which omitted the above notice did not authorize the clerk to enter the default of the defendant. The clerk is authorized by Section 585, C. C. P., to enter judgment by default only in "an action upon contract for the recovery of money or damages only." In other cases, application for judgment must be made to the court. Judgment reversed and cause remanded. |