
    DAVIDSON v. MUNSEY.
    No. 1570.
    (80 Pac. 743).
    1. Equity — Contempt.—The fact that plaintiff’s affidavit on a motion for an order requiring defendant to show cause why he should not be committed for a contempt was made on information and belief was immaterial, where the affidavits of other persons alleged the commission of the contempt in positive terms.
    2. Same — Costs—Attokney’s Fees. — Revised Statutes 1898, section . 3338, provides that parties to actions or proceedings are entitled to costs and disbursements, and section 3368 provides that, if actual loss to a party in an action is caused by a contempt, the court, in addition to fine or imprisonment, may order payment to the party aggrieved of a sum sufficient “to indemnify him and to satisfy his costs and expenses.” Held, that in proceedings against one for a contempt in violating an injunction restraining him from infringing a trade-mark it was proper on a finding for plaintiff to award him a reasonable attorney’s fee.
    3. Same — Ineeingement oe Teade-Maek — Evidence—Depositions— Sheet open cy. — Revised Statutes 1898, section 4513, provides that in criminal prosecutions the defendant shall be confronted by the witnesses against him. Held, that proceedings for a contempt for the violation of an injunction restraining the infringement of a trademark were civil, and it was proper to admit a deposition in evi- , dence.
    
    4. Same — Sueetciency—Evidence.—In proceedings for a contempt consisting of the violation of an injunction restraining defendant ' from infringing plaintiff’s cigar label, the mere fact that the amount of the profits derived by defendant from the value of the cigars labeled with such trade-mark was a certain sum per thousand did not warrant a finding that plaintiff was damaged in such sum by each thousand cigars sold by defendant.
    (Decided April 14, 1905.)
    Appeal from District Court; Weber County; Charles H. Hart, Judge.
    AFFIRMED IN PART.
    
      Suit by Max Davidson against Edward A. Munsey. From a decree finding defendant guilty of contempt of a decree restraining bim from infringing a certain trade-mark of plaintiff’s, defendant appeals. Affirmed on conditions.
    
      B. S. Farnsworth for appellant.
    
      W. L. Maginnis and C. 0. Richards for respondents.
    ARRELLANAS ROINTS.
    Tbe affidavits upon which the order to show cause was issued do not state facts sufficient to authorize the court to issue any such order, or to give the court jurisdiction. (Young v. Gannon, 2 Utah 561; Gaines & Go. v. Sroupe, 117 Eed. 965; Thedford Med. Go. v. Gurry, 22 S. E. 661; Low v. Hall, 47 N. Y. 105.)
    The court erred in requiring the defendant to pay to the plaintiff $300 as attorneys’ fees as costs and expenses incurred by the plaintiff. The court had no authority to allow attorneys’ fees in this proceeding. (Eev. Statutes 1898, Utah, sec. 3368; Kelly v. Rogers, 21 Minn. 147; Day v. Woodworth, 13 How. 363; Atwater v. Russell, 49 Minn. 57, 56 N. W. 26; Frost v. Jordan, [Minn.], 36 N. W. 713; Sud-low v. Knox, 7 Abb. Prac. [N. S.] 412; Cleveland v. Burn-ham, 18 N. W. 190; O’Rourhe v. Cleveland, 49 N. J. Eq. 577; Larson v. Windsor, 45 Pac. 315; Dejonge v. Brenner-man, 23 Hun 332.)
    In the case of a contempt not committed in the presence of the court, the evidence admissible should only be such as would be admissible on the trial of an indictment for the same offense. (In re Bates, 55 N. H. 325; Welch v. Barber, 52 Conn. 147.) It was determined by the Supreme Court of California in the case of Kx Parte Gould, 99 Cal. 300, 33 Pac. 1112, that a proceeding to punish a person for contempt in violating an injunction is criminal in character and the rules of criminal procedure obtains therein.
    The evidence is not sufficient to sustain the finding, con-elusion of law and judgment that the defendant realized profits amounting to the sum of $150. The amount of the fine to indemnify the person aggrieved must be fixed upon proof of - the damages sustained according to the rules of law which would apply to an action for such damages. “It is well settled that under this section of the Code, the amount of the fine to be imposed for the purpose of indemnifying the person aggreived, must be based upon proof of the damage actually sustained.” Moffat v. Herman, 22 N. E. 287; citing Sudlow v. Knox, 7 Abb. Pr. [N. S.), 411; DeJonge v. Brennerman, 23 Hun 332; King v. Flynn, 37 Hun 329; Bohner v. Chadwick [Htah], 26 Pae. 116; Hostetter v. Von Winkle, Eed Cas. 6714; Atlantic Milling Go. v. Robinson, 20 Fed. 217; Leather Gloth Go. v. Hirshjield, 13 L. T. N. S. 427; 14 Week. Hep. 78 L. H. 1 Eq. 299.)
    RESPONDENT'’S POINTS.
    The fourth, fifth and sixth grounds of reversal relied ui>on by the appellant cannot be urged in this court. All three raise the question of the sufficiency of the evidence to sustain the findings of the court, and the bill of exceptions contains no specifications of the particulars in which the evidence is alleged to be insufficient. Section 3284 of our Code, as amended in 1903, provides: “No particular form of exceptions is required, but when the exception is to a verdict or decision upon the ground of insufficiency of evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.” This provision of our Code requires that the particulars shall be specified in the bill of exceptions, otherwise the findings of the court cannot be reviewed. (2 Spelling on New T’r. and App. Pr., sec. 433; Hayne on New Tr. and App., sec. 344, p. 737, sec. 96, p. 26-91; Maries v. Taylor, 23 Utah 159; Van Pelt v. Park, 18 Utah 146; Mader v. Taylor et al., 15 Utah 163; Canal Go. v. Edwards, 9 Utah 477; Stirling v. Parsons, 9 Utah-81.)
    This court has repeatedly held that in equity cases the findings of the lower court will not be disapproved unless they are so manifestly erroneous as to demonstrate some oversight or mistake, and in law cases this court may not review tbe questions of fact, so whether this proceeding be a law case or whether it be a case in equity, the questions of fact will ’ not be reviewed by this court. (Dwyer v. 8. L. 0. Mfg. Go., 14 Utah 342; Han-naman v. Garrick, 9 Utah 239; Dooly Block v. Rapid T. Go., 9 Utah 45; Watson v. Mahoney, 15 Utah 275; McKay v. Karr, 15 Utah 264; Miller v. Livingston, 22 Utah 178; Gor-ringe v. Read, 24 Utah 455.)
    The court had the power to allow an attorneys* fee of $300 as part of plaintiffs costs and expenses. (Brett v. Brett, 33 Hun 547; State v. Durfem, 46 Kan. 695, 27 Pac. 148; DeJonge v. Brenneman, 23 Hun 332; People v. Spauld-ing, 2 Paige 364; Whitman v. Haines, 51 Hun 640; Railway Go. v. Duggan, 109 Ill. 537-539; Landon v. Wayne Gircuit J., 76 Mich. 373; In re Tift, 11 Fed. Hep. 467; Stahl v. By-til, 62 Fed. Hep. 920; Doubleday v. Sherman, 7 Fed. Cases No. 4020.)
    The court did not err in admitting the deposition of O. X>. Douglass. This proceeding for contempt was not a criminal action, though spoken of as an action in the nature of a criminal proceeding. (9 Cy. 47; Wyatt v. People [Colo.]„ 28 Pae. 961; Stale v. Durein [Kan.], 27 Pac. 148; In re Ghadwick [Mich.], 67 N. W. 1071; State v. Doty [N. Y.], 90 Am. Dee. 671; Tinsley v. Anderson, 171 U. S. 101; State v. Becht, 23 Minn. 411; Gandy v. State [Neb.], 14 N. W. 143.) Nor is a punishment for contempt a bar to a subsequent criminal prosecution for the same act. (Sherman v. People [Ill.], 7 N. E. 618.) The distinction between civil contempt and criminal contempt is also recognized by the decisions of our own State. (Snow v. Snow, 13 Utah 15; Ex Parte Whitmore, 9 Utah 441; In re Kelsey, 12 Utah 393; People «. Owens, 13 Utah 18.)
    STATEMENT OB' EACTS'
    
    On the 10th day of November, 1900, the plaintiff in this action filed a complaint in the district court of Weber coimty, Utah, alleging that tbe defendant bad infringed a certain cigar label or trade-mark known as tbe “Columbia Club” and tbe “Columbia Club Perfecto.” Tbe defendant answered, and a trial was had on tbe lOtb day of April, 1901. Tbe court entered a decree in favor of tbe plaintiff and against tbe defendant, restraining tbe defendant from selling or causing to be sold any cigars purporting to be cigars manufactured by plaintiff, or from in any way imitating or causing to be imitated tbe two brands of cigars known as tbe “Columbia Club” and tbe “Columbia Club Perfecto.” On January 24, 1903, tbe court made an order based upon certain affidavits filed by tbe plaintiff, requiring tbe defendant to show cause why be should not be committed for contempt of court for violating tbe decree referred to. Tbe defendant filed an answer, denying tbe allegations set out in tbe plaintiff’s affidavits. On tbe 23d day of February, 1903, on a legal holiday, the cause came on for trial, and on March 10, 1903, tbe court filed its findings of fact and conclusions of law, and entered a decree that defendant was guilty of violating tbe injunction and decree of said court made on tbe 10th day of April, 1901, hereinbefore mentioned, and that defendant pay to plaintiff a certain amount of money as damages and bis costs and disbursements, including $300 as attorney’s fees, whereupon an appeal was taken to this court from said judgment, which said judgment was reversed upon tbe ground that tbe trial court did not have jurisdiction to try said action on a legal holiday, and tbe cause was remanded back to tbe lower court for á new trial. (Davidson v. Munsey, 27 "Utah 87, 74 Pac. 431.) On tbe 6th day of April, 1904, tbe cause again came on for trial, and on tbe 8th day of April, 1904, tbe court found tbe issues in favor of plaintiff, and entered a decree adjudging the defendant guilty of contempt, and that plaintiff have judgment against defendant for tbe sum of $150 as damages and that be recover bis costs in said action, including $300 attorney’s fees. Tbe court also found “that, in case an appeal from tbe final judgment herein be taken by tbe defendant, that tbe further sum of $200 would be a reasonable attorney’s fee to be allowed to plaintiff’s attorneys for their services on such appeal.” Defendant appeals.
    
      
       Snow v. Snow, 13 Utah 15, 43 Pac. 620.
    
   McCARTY, J.,

after making the foregoing statement of the case, delivered the opinion of the court.

Appellant’s first contention is that the affidavit of respondent, Davidson, was insufficient to authorize the trial court to issue an order requiring appellant to appear in court and show cause why he should not be fined and committed for contempt, for the reason that said affidavit was made upon information and belief, and not from personal knowledge. Davidson procured and filed affidavits of other parties in support of the motion for the order to show cause. In these affidavits the facts constituting the alleged contempt are set forth in direct and positive terms, and are based upon the personal knowledge of the parties who signed them, and were sufficient of themselves, without the affidavit of Davidson, to authorize the court to issue the order to show cause. Therefore the question as to whether the affidavit made by Davidson upon information and belief was sufficient to give the court authority to act in the matter becomes unimportant.

The next question raised by this appeal is, did the court err in requiring the defendant to pay to the plaintiff $300 as attorney’s fees as a part of the costs and expenses incurred by him in the prosecution of the action? Section 3338, Revised Statutes 1898, provides that:

“The compensation of attorneys and counselors at law is left to the agreement express or implied of the parties; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided.”

'Section 3368 provides that:

“If an actual loss or injury to a party in an action or special proceeding, prejudicial to his rights therein, is caused by the contempt, the court, in addition to the fine or imprisonment for the contempt, or in place thereof, may order the person proceeded against to pay tbe party aggrieved a sum of money sufficient to indemnify him, and to satisfy bis costs and expenses.”

Appellant insists tbat tbe pbrase “costs and expenses” in section 3368 is equivalent to and means tbe same thing as tbe pbrase “costs and disbursements” found in section 3338, Revised Statutes 1898, and tbat only sucb costs as are taxable in ordinary actions can be legally allowed in cases of tbis bind. On tbe other band, respondent contends tbat tbe term '“expenses,” as used in section 3368,. is intended to include something more than tbe costs allowed by statute to tbe prevailing party in ordinary civil actions, and may include sucb reasonable attorney’s fees as the relator may have paid or obligated himself to pay counsel in order to secure tbe fruits of bis litigation and get the protection and full benefit tbat the injunction order which tbe defendant is adjudged guilty of violating, is intended to give him. It would seem tbat tbe Legislature, by making use of tbe word “expenses,” and associating it with tbat of “costs,” intended tbat something more than the usual or ordinary costs tbat are allowed to tbe prevailing party in civil actions generally might be allowed where tbe court proceeds under section 3368, and in addition to or in lieu of a fine or imprisonment “orders tbe person proceeded against to pay tbe party aggrieved a sum of money sufficient to indemnify him and to satisfy bis costs and expenses.” Tbe term “costs,” as applied to judicial proceedings in tbis State, has a defined and well-understood meaning. It refers to and includes only those fees and charges the amounts of which are fixed and regulated by statute; that is to say, the fees which tbe statute provides a party in prosecuting or defending an action or proceeding must pay into court, tbe compensation of witnesses, and tbe fees required to be paid to tbe officers of tbe court during tbe progress of tbe suit. Tbe word “expenses” is not so restricted, and may include items of expenditure in tbe prosecution of an action or proceeding which are not governed and regulated by statute, and which are not allowed as a matter of course to the prevailing party. And we are of tbe opinion that tbe term “expenses” in section 8368 is -used advisedly, and for a purpose, and is intended to include sucb necessary and unavoidable expenditures as tbe “party aggrieved” may be put to in prosecuting proceedings of this kind to secure tbe benefits bis injunction is supposed to give liim, as well as redress for the actual loss or injury which tbe evidence shows be has suffered because of tbe wrongful acts of defendant. If sucb bad not been tbe intention of tbe Legislature, it is reasonable to presume that tbe words “and expenses” would have been omitted from section 3368. (Taylor v. R. R. Co., 83 Wir. 645, 53 N. W. 855.) Therefore we are of tbe opinion, and so bold, that the court proceeded entirely within tbe sTatute in allowing plaintiff a reasonable attorney’s fee. Tbe action of tbe court in this respect is supported by respectable authority. In tbe case of tbe People ex rel. Garbut v. R. R. Co., 76 N. Y. 294, which was an appeal from an order modifying, and affirming as modified, an order imposing a fine upon appellant (defendant) for a contempt in disobeying a peremptory writ of mandamus which included $100 for fees paid by tbe relator to bis attorney in sucb proceedings, tbe court said:

“The fine imposed in this case, as modified by tbe General Term, consists only of tbe costs and expenses of tbe proceedings for contempt. Tbe appellants complain that in addition to tbe costs an allowance of $100 was made as a fair compensation to tbe relator’s attorneys in tbe proceedings. For this compensation tbe relators were liable to their attorneys, and, though not embraced within tbe term hosts,’ we think the court bad power to allow it as an expense.” (Dejonge v. Brenneman, 23 Hun [N. Y.] 332; Brett v. Brett, 33 Hun [N. Y.] 547; In re Tift [D. C.], 11 Fed. 467; Stahl v. Ertel [C. C.], 62 Fed. 920; Doubleday v. Sherman, 7 Fed. Gas. 959 [No. 4,020]; 2 High on Injunctions, sec, 1457, 9 Cyc. 55.)

Tbe deposition of one O. D. Douglass was admitted in evidence over tbe objection of defendant. It is claimed that tbe action of tbe court in admitting tbe deposition was in violation of section 4513, It. S. 1898, wbicb provides, so far as material here, that “in criminal prosecutions tbe defendant shall be confronted by the witnesses against him.” Proceedings in contempt cases are divided into two classes. When brought under section 3361, and for tbe purpose of vindicating tbe power and authority of tbe court and maintaining its dignity, tbe proceedings are criminal in .character, and tbe rules of practice in criminal actions should be adhered to and folio-wed. But when, as in this case, the proceedings are for the purpose of collecting an indemnity for the damage's sustained by the plaintiff because of the misconduct of the defendant, they are civil, and are so held by the great weight of authority. (7 A. & E. Enc. Law, 28, 29, 68, and cases cited; 9 Cyc. 6.) In Snow v. Snow, 13 Utah 15, 43 Pac. 620, which is a well-considered case, this distinction is recognized and followed. In the course of the opinion the court said:

“Erom a careful inspection of the authorities it is evident that a clear distinction exists, both upon principle and authority, between that class of cases where it is sought to vindicate the authority or dignity of the court, or where the contempt consists in the doing of a forbidden act, injurious to the opposite party, wherein the process is criminal, or of a criminal nature, and wherein conviction is followed by a penalty of fine or imprisonment, or both, which is merely punitive, and that other class of contempts where the proceeding is remedial, and intended for the benefit of the opposite party, to compel the doing or omission to do an act necessary to the administration of justice in enforcing some private right in a civil proceeding. This distinction between civil and criminal contempt is recognized in the following cases” (citing numerous cases).

In fact appellant, in bis reply brief, claims that tbe facts in this case “at least show nothing more than a civil contempt,” thereby recognizing the foregoing distinction between the two classes of contempts. The proceedings in this case being more of a civil than a criminal character, it was not error to admit the deposition referred to.

Evidence was ’ introduced which tended to show that the amount of profits derived by appellant from the value of cigars labeled with the trade-marks in question was about $50 per thousand, which, it appears from the record, was taken as a basis to determine the amount of damages sustained by Davidson because of appellant’s alleged' violation of the injunction referred to in the foregoing statement of facts; but no evidence was introduced which even tended to show the amount of damage sustained by Davidson by reason of appellant infringing upon and using the trade-marks or labels in question. The court, however, found as a fact “that thereby, and by means of the aforesaid false and fraudulent representations and conduct of the said defendant, and the sales so made by him, the said defendant was enabled to and did realize profits thereon amounting to the sum of $150, to the damage of the plaintiff in said sum.” It does not necessarily follow that because Munsey may have realized a profit equal to $50 per thousand on the cigars he sold labeled with the trade-marks referred to that Davidson was correspondingly damaged in the same amount. Under section 3361, Revised Statutes 1898, the court may, when a defendant has beeen adjudged guilty of contempt for violating its orders and decrees, impose a penalty of both fine and imprisonment, and that, too, regardless of the extent of the injury or damage suffered by the complainant or party directly aggrieved by the unlawful acts of the defendant. The fine-in.such case is imposed to vindicate the authority of the court, and for the purpose of enabling it to enforce its orders and decrees; and all that is required, all other proceedings being regular, to support a judgment of this kind, is for the proof to show that the defendant has willfully violated or refuses to comply with the orders and mandates of the court. But when the court proceeds, as was done in tbis case, under section 3368, and an order is made for tbe defendant to pay plaintiff a sum of money sufficient to indemnify bim for bis actual loss or injury caused by tbe misconduct of tbe defendant, there must be some evidence wbicb tends to sbow tbe amount of sucb damage. Tbe law does not contemplate, nor will it permit, a judicial determination wbicb requires one litigant to pay to another a stun of money to be left entirely to conjecture, where, as in tbis case, there is no evidence whatever to sbow tbe amount of injury suffered or damage done tbe plaintiff. In cases of contempt, where tbe court, under tbe foregoing provisions of-the statute, awards more than nominal damages to tbe aggrieved party, sucb damages must be proved according to the rules of law wbicb would govern in a civil action brought to recover sucb damages, and tbe amount awarded must be limited to the actual injury or loss sustained. (7 A. & E. Ency. Law [2d Ed.] 68; Dejonge v. Brenneman, 30 Hun 332.) Tbe Supreme Court of North Dakota, in deciding tbis same question in a case which arose under a statute almost identical to tbe one here, in tbe course of the opinion said:

“In our opinion, tbe law of tbis State does not, in contempt proceedings, permit sums of money in' amounts arbitrarily fixed by tbe court to be paid by one suitor to another under tbe compulsion of an order of court. Tbe amount to be paid over must in some way be ascertained judicially, and tbis means that tbe same must be ascertained by a consideration of testimony bearing upon the matter. It is true that an exact measure in money in cases of unliquidated damages is difficult to find, but tbis difficulty is met in all cases where suit is brought for unliquidated damages. Where there is an actual loss occasioned by tbe acts of tbe condemner, tbe amount thereof must be ascertained by proof, and the court cannot fix sucb amount without proof.” (Noble Tp. v. Aasen (N. D.), 86 N. W. 742; Moffat et al. v. Herman, 116 N. Y. 131, 22 N. E. 287; 9 Cyc. 54.)

There being no evidence which even tends to show that respondent was damaged in the sum of $150, or any other amount, except a nominal sum, the court erred in that part of its fourth finding of fact hereinbefore set out. The cause is therefore remanded to the trial court. But as this is in the nature of a special proceeding, it will not be necessary, nor is it imperative, to reverse the case because of this error. If the respondent, within ten days from the time the remit-titur in this case is filed with the clerk of the district court, remits all of the $150 damages except the sum of $1 (nominal damages) of said sum, the judgment will be affirmed, with costs; otherwise the case will stand reversed, and remanded for a new trial.

STRAUP, L, concurs.

BARTCH, C. J.

— I concur in this decision except as to the form of the judgment.  