Ward-Chandler Building Co. v. Caldwell

EDMONDS, J.,

pro tem.

Appeals are presented from two orders of the superior court, one authorizing and the other confirming the sale of a trademark by a receiver.

Florence Hudgen and Owen Hudgen at one time conducted a beauty parlor and permanent hair waving salon under the name of “Hudgens Permanent Wave Shop”. It is not disputed that this name was recorded in the office of the secretary of state as a trademark. (Pol. Code, secs. 3196, 3197.) Thereafter the Hudgens sold the business, including the trademark, to the defendant Mildred J. Caldwell, who later sold both to the defendant Rae Goodwin. Subsequently plaintiff secured judgment against both defendants for rent, and in aid of execution of the judgment, procured an order from the superior court appointing a receiver with power “to take an assignment from defendants and each of them of their interest in the said good will and trademark of the Hudgens Permanent Wave Shop, and to sell the same according to law and apply the proceeds of the same in satisfaction of the said judgment”. By the same order the defendants were required “to make and execute an assignment in writing to said receiver of all right, title and interest which either or both of them have in and to the good will and trademark of the Hudgens Permanent Wave Shop within a period of three days thereafter”.

The defendants complied with the order by delivering the required assignment to the receiver, accompanying it, however, with a notice that the defendant Goodwin had appealed from the order, and that the assignment was delivered “in accordance with the provisions of section 943, of the Code of Civil Procedure”, and was to be retained by him until the disposition of the appeal. The receiver notwithstanding the appeal, immediately gave notice of sale of the “good will and trade name of the Hudgens Permanent Wave Shop” at pub-

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lie auction. He later petitioned the court for an order approving and confirming his sale of the trademark as “the sole asset of said receivership estate” to the plaintiff corporation for the sum of $100, which petition was granted over the objection of the defendant Goodwin, who has appealed from the order confirming the sale.

The principal points urged by the appellant are that the trademark “Hudgens Permanent Wave Shop” is not one within the meaning of section 3196 of the Political Code, and that a trademark cannot be sold or assigned except in connection with the sale of the business in which it has been used. Appellant also contends that when she filed her notice of appeal from the order directing an assignment of the trademark, and when she delivered the assignment thereof to the receiver, further proceedings were stayed, and the receiver was without authority to make the sale and the court without jurisdiction to confirm it under the provisions of section 943 of the Code of Civil Procedure.