29 N.W.2d 33 (Wis. 1947), Smith v. City of Whitewater

• Citation: 29 N.W.2d 33, 251 Wis. 306
• Opinion Judge: The opinion of the court was delivered by: Rector
• Party Name: SMITH v. CITY OF WHITEWATER et al.
• Attorney: Leonard Haines, of Whitewater, and W. Wade Boardman, of Madison, for appellants.
• Case Date: October 14, 1947
• Court: Supreme Court of Wisconsin

Page 33

29 N.W.2d 33 (Wis. 1947)

251 Wis. 306

SMITH

v.

CITY OF WHITEWATER et al.

Supreme Court of Wisconsin

October 14, 1947

Page 34

[Copyrighted Material Omitted]

Page 35

Appeal from two orders of the County Court of Walworth County; Roscoe R. Luce, Judge.

Leonard Haines, of Whitewater, and W. Wade Boardman, of Madison, for appellants.

Karon U. Weinberg, of Milwaukee (Philip Weinberg, of Milwaukee, of council), for respondents.

RECTOR, Justice.

The respondent advances the contention that the cause is moot. It is said that the 1946-1947 license year for which Whitinger's license was issued has now expired, and that any controversy as to whether that license may properly be transferred is now ended. The order of February 17, 1947 setting aside the ex parte dissolution and reinstating the injunction nunc pro tunc as of December 10, carried $10 motion costs in favor of the respondent. A reversal of the order would absolve the appellants from the payment of such costs. The matter of costs has on several occasions been considered as preserving the life of a cause for purposes of a decision on appeal even though it has otherwise become moot. State ex rel. Strike v. Common Council, 1930, 201 Wis. [251 Wis. 310] 435, 230 N.W. 70; State ex rel. Runge v. Anderson, 1898, 100 Wis. 523, 76 N.W. 482, 42 L.R.A. 239; State ex rel. Treat v. Hammel, 1907, 134 Wis. 61, 114 N.W. 97; State ex rel. Conlin v. City of Wausau, 1908, 137 Wis. 311, 118 N.W. 810; State ex rel. Hathaway v. Mirlach, 1921, 174 Wis. 11, 182 N.W. 331. No question of costs in the trial court was involved in Lamoreux v. Williams, 1905, 125 Wis. 543, 104 N.W. 813, upon which respondent relies.

The order of May 15, 1947 did not assess costs. The appellants argue, however, that if the injunction which the court therein refused to vacate was improperly issued, they are entitled to be compensated for such damages as they may have suffered by reason of its issuance. Muscoda Bridge Co. v. Worden-Allen Co., 1932, 207 Wis. 22, 239 N.W. 649, 240 N.W. 802. The difficulty with the contention is that until such time as there has been a final determination on the merits as to whether respondent is entitled to an injunction, the determination of such damages is premature. It is the final disposition which determines the right to receive such damages. Independent Order of Foresters of Canada v. United Order of Foresters...