Opinion
April 14, 1966. —
May 10, 1966.
APPEAL from an order of the circuit court for Marinette county: AROLD F. MURPHY, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by John W. Flood of Wausaukee.
No brief or appearance for respondents.
The trial court sustained a demurrer to the plaintiffs' complaint, which generally alleged that the defendants had interfered with the use of the plaintiffs' trade name, The Maple Beach Resort.
The plaintiffs are copartners in a business identified as The Maple Beach Resort located on Lake Noquebay in Marinette county. The defendants, are copartners in the resort business and operate Ahle's Resort, which is also on Lake Noquebay. The complaint alleges that the distance between the resorts is three miles. The trial court stated that the resorts were 12 miles apart by road.
On October 29, 1951, the plaintiffs applied to the secretary of state for a statement of adoption of the trade name, The Maple Beach Resort, pursuant to ch. 132, Stats. A certificate of record of the trade name was issued October 29, 1951.
The defendants erected a sign on the junction of Highway 141 and Town Highway 8 in June of 1965. This sign read, "Maple Beache Gift Shop," and directed the reader to the locale of Ahle's Resort.
The trial court sustained the demurrer on the ground that the plaintiffs did not have a copyright on the name. He reasoned that the plaintiffs' name did not describe anything unique. The appeal was taken from this order sustaining the demurrer.
The respondents, defendants below, have filed no brief in this court. The appellants' attorney left a letter with this court that he received from Mrs. Doris Allen, one of the defendants, explaining why she is not continuing to pursue the matter. The letter in full reads as follows:
"Jan. 21, 1966
Dear Mr. Kopish:
In regards to the Walder vs. Allen case, The Maple Beache Gift Shop sign has been removed as of Jan. 20, 1966. The constant pressure and tension has been upsetting my health. I have been informed this could very well cause a repeat of the illness I suffered last March 1965. This letter will terminate any legal issue I have of the Maple Beache Gift Shop sign. I am mailing a copy to Mr. Flood also.
Sincerely yours, /s/ Mrs. Doris Allen"
Sec. (Rule) 251.57, Stats., provides:
"When a cause is submitted, or presented by counsel appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be course, without argument."
See State ex rel. Roth v. Ryan (1965), 28 Wis.2d 695, 137 N.W.2d 833, in which we reversed the judgment as of course pursuant to the rule.
Therefore, since the respondents have not filed a brief with the court and one of them has indicated that the cause of the dispute (the sign reading, "Maple Beache Gift Shop") has been removed, the order sustaining the demurrer is reversed pursuant to sec. (Rule) 251.57, Stats.
We also note that this reversal leaves the complaint standing. The complaint, however, appears moot, since it asks for removal of the sign and a perpetual injunction restraining use of the sign. These demands have been met by the removal of the sign.
By the Court. — Order reversed.