Schwarz v. Superior Court

Citations

• 111 Cal. 106
• 43 P. 580
• 1896 Cal. LEXIS 551

Syllabus

<p>Mandatory Injunction—Removal of Trade Signs—Effect of Appeal. —Stay of Proceedings—Contempt—Certiorari.—A mandatory injunction, pendente lite, commanding the removal of trade signs, is stayed and suspended in its effect by an appeal from the order granting the same; and, pending such appeal, the defendants cannot be punished for contempt for failure to remove or discontinue such trade signs; and an order punishing them for such failure will he annulled upon certiorari.</p> <p>Id.—Prohibitory Injunction—Indirect Enforcement of Mandatory Injunction.—Although the effect of a prohibitory injunction is not-stayed or suspended by an appeal therefrom, yet the court cannot, by attempting to enforce a prohibitory injunction, indirectly enforce a mandatory injunction, the effect of which is suspended by an appeal;, and where appellants were ordered to remove certain trade signs from their premises, and prohibited from using the trade name thereon, and, in fact, made no use of such name pending the appeal, except upon the signs which they claimed were the property of their lessors, they, cannot be punished for contempt for violation of the prohibitory injunction for merely allowing the signs to remain in the same condition pending the appeal; nor can they be required to abandon their business oribe premises, or punished for not doing so pending the appeal.</p> <p>Id.—Effect of Stay of Proceedings—■ Prevention of Change—The stay of proceedings pending an appeal has the effect of keeping matters-in the condition in which they were when the stay of proceedings was-granted; and operates so as to prevent any future change in the condition of the parties.</p> <p>Id.—Contempt, a Criminal Proceeding—Strict Construction.— A proceeding to punish a defendant for contempt is in its nature a criminal proceeding, and the charge and finding thereon, and the judgment of the court, are to he strictly construed in favor of the accused.</p> <p>Id.—Review upon Certiorari—Record Rot Conclusive—