Summary
holding that a case may be moot if the case seeks "a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy"
Summary of this case from Portage Cnty. v. K.K. (In re K.K.)Opinion
June 5, 1956 —
June 22, 1956.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Dismissed.
For the appellant there were briefs by Welsh, Trowbridge, Wilmer Bills of Green Bay and oral argument by George E. Bills.
For the respondent there was a brief by Everson, Ryan, Whitney O'Melia of Green Bay, attorneys, and Maxwell H. Herriott of Milwaukee of counsel, and oral argument by Mr. Herriott and Mr. John C. Whitney.
Action by the plaintiff Ford Howard Paper Company for an injunction restraining the defendant from using the name "Fort Howard Corporation" or any other name whose similarity will result in confusion.
The plaintiff was incorporated as a Wisconsin corporation on February 24, 1919, with its principal place of business in the town of Ashwaubenon in Brown county. Since the date of its incorporation it has manufactured and distributed paper and paper products under the name of Fort Howard Paper Company. Presently it employs over 800 employees and has an annual sales volume substantially in excess of $10,000,000.
The defendant was incorporated as a Wisconsin corporation on October 22, 1952, pursuant to the new Wisconsin Business Corporations Law, ch. 180, Stats., enacted by the 1951 legislature, under the name of "Fort Howard Corporation." While its articles of incorporation authorize it to engage in "any lawful activity within the purposes for which a corporation may be organized under the Wisconsin Business Corporations Law" its sole contemplated business at the time of incorporation, and the only business it is now engaged in, is the ownership of certain improved real estate and personal property which it leases to the Norcor Manufacturing Company. Such lessee corporation is engaged in the manufacture of metal furniture, folding chairs, and tables. The leased property is situated in that part of the city of Green Bay lying west of the Fox river which at one time was the city of Ford Howard but since 1895, as a result of a consolidation, has been within the corporate limits of Green Bay.
The complaint of the plaintiff charged that the name "Fort Howard Corporation" is deceptively similar to plaintiff's name, and, therefore, in violation of sec. 180.07 (3), Stats., which provides:
"The corporate name: . . .
"(3) Shall not be the same as or deceptively similar to the name of any corporation existing under any law of this state, or any foreign corporation authorized to transact business in this state, or a name the exclusive right to which is at the time reserved in the manner provided in this chapter."
No competition as to business or products exists between the plaintiff and defendant. However, there has been confusion in the minds of the public in the city of Green Bay and surrounding territory which has resulted in misdelivery of mail and other embarrassments to plaintiff.
The action was tried to the court without a jury.
Under date of August 16, 1955, the trial court entered an interlocutory judgment, the material portions of which read as follows:
"It is decreed:
"1. That defendant shall change its name by adding to it a word or words descriptive of its business that will distinguish it from the business of manufacturing or selling paper products or at its option shall eliminate the words `Fort Howard' from its name entirely. Defendant shall effect such change of name and file with the clerk a sworn copy of the amendment to its articles making the change and showing the time of filing and recording of the amendment, and notify plaintiff's attorneys in writing of such filing with the clerk, all within sixty (60) days after service of notice of entry of the decree upon defendant's attorneys.
"2. That this court reserves jurisdiction to determine whether a change of name that does not eliminate entirely the words `Fort Howard' from defendant's name complies with the decree. Any change of name not eliminating such words shall be deemed to comply with the decree unless plaintiff shall, within twenty (20) days after receipt by its attorneys of said notice of filing, move the court, by motion served upon defendant's attorneys, and filed, within said twenty (20) days, for a hearing to determine compliance of the change of name with the decree."
On the sixtieth day following service of notice of entry of the interlocutory judgment, the defendant corporation amended its articles so as to change its corporate name to "Fort Howard Industrial Corporation." Thereafter, in accordance with the interlocutory judgment the plaintiff moved for a hearing before the trial court to determine whether the new name complied with the judgment. While this latter proceeding was pending, the defendant corporation appealed to this court from said interlocutory judgment of August 16, 1955. Such appeal has had the effect of staying the hearing in circuit court upon plaintiff's application that the trial court determine whether the new name adopted by defendant complied with the judgment. The plaintiff has moved this court to dismiss defendant's appeal.
It is the contention of counsel for the plaintiff that the act of the defendant corporation of amending its articles so as to change its corporate name from "Fort Howard Corporation" to "Fort Howard Industrial Corporation" has rendered moot the question of whether its former corporate name of "Fort Howard Corporation" is "deceptively similar" to plaintiff's corporate name of "Fort Howard Paper Company" within the meaning of sec. 180.07 (3), Stats.
This court in its decision in Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 440, 32 N.W.2d 190, stated:
"A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in realty there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy."
Inasmuch as there is no longer in existence a corporation with the name of "Fort Howard Corporation," for this court to now determine whether such corporate name is deceptively similar to that of "Fort Howard Paper Company" would be "to determine an abstract question which does not rest upon existing facts or rights." The question is therefore moot and one which this court should not undertake to decide.
Counsel for the defendant urges that the action taken by defendant in changing its corporate name was an involuntary act on defendant's part to avoid being held in contempt of court; and, being involuntary, such act should not be held to prejudice defendant on this appeal. The recent decision of this court in Flakall Corp. v. Krause (1955), 269 Wis. 310, 70 N.W.2d 8, is illustrative of the predicament in which an appellant may find himself who fails to comply with the injunctional order or judgment appealed from without obtaining a stay of execution. However, it seems to us that counsel has failed to distinguish between an act of compliance constituting a waiver of the right of appeal an one which renders the controversy moot. There is no waiver if the act of compliance is involuntary, but such an involuntary act of compliance may, nevertheless, under certain circumstances render the controversy moot. As pointed out in the annotation on the subject, of the effect of compliance with a civil judgment as barring the right of appeal, in 39 A.L.R.2d 153, 179:
"A defeated party's compliance with the judgment destroys his right to appeal where such compliance makes it impossible for the appellate court to grant him effective relief on the merits."
Because of our conclusion that the question on the merits raised by defendant's appeal has been rendered moot by defendant's act in changing its corporate name, we are required to grant plaintiff's motion to dismiss the appeal. As a result of such dismissal the circuit court, in the pending proceedings instituted subsequent to the entry of the interlocutory judgment, will determine the issue of whether defendant's present corporate name, "Fort Howard Industrial Corporation" is deceptively similar to plaintiff's corporate name. If such issue is decided adversely to defendant an appeal will lie to this court from such order or judgment.
By the Court. — Appeal dismissed.