Cline v. Whitaker

• Citation: 129 N.W. 400,144 Wis. 439
• Parties: CLINE v. WHITAKER.
• Decision Date: 10 January 1911
• Court: United States State Supreme Court of Wisconsin

144 Wis. 439

129 N.W. 400

CLINE

v.WHITAKER.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Syllabus by the Judge.

However erroneous an injunctional order may be in the sense of wrong or inexcusable use of judicial power, it is binding on the person restrained and efficiently notified thereof till set aside in some proper proceeding.

The saying that an injunctional order is good till set aside, if the court making it had jurisdiction of the subject-matter, is to be understood as to the word jurisdiction, to refer to the existence or non-existence of judicial power and as to the word subject-matter to such subjects between the parties.

If in a given situation there is any valid ground upon which a temporary injunctional order might, under any circumstances, be properly issued, though none be stated in the complaint, and it would be highly erroneous, even jurisdictionally wrong in the sense of inexcusable use of judicial authority, to allow such an interference and such allowance nevertheless occurs, it is erroneous, not void, and cannot properly be defied.

As regards an injunctional order “if the court's command is within its power to make under any circumstances upon any grounds and for any reasons whatever, the person enjoined is bound to obey till the order shall have been vacated.”

A temporary injunctional order may be issued, under some circumstances, in a legal action.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by D. W. Cline against M. H. Whitaker. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff commenced an action to recover damages from defendant for, as charged, having maliciously injured his business by publishing and distributing circulars containing false and defamatory statements concerning it. Upon a complaint stating a cause of action for damages for the wrong alleged, an affidavit to the effect that such wrong was continuous and was threatened to be seriously active pending the litigation, supported by an affidavit by one Johnson, the court granted a temporary injunctional order restraining defendant from continuing the alleged wrong. Subsequently to the service of the order on defendant, plaintiff informed the court, in due form, that the former had violated it, whereupon defendant was, in due form, requested to show cause, February 26, 1910, why he should not be punished for contempt. Before such order was heard the injunctional order was, on motion, set aside with costs.

The hearing in the contempt proceedings was, in due time, had, resulting in defendant being found guilty and adjudged to pay a fine of $25 and $8.18, costs and expenses and to be committed till payment should be made. The appeal is to review such determination.Rubin & Zabel, for appellant.

David E. Johnson, for respondent.

MARSHALL, J. (after stating the facts as above).

Is a temporary order void, made by a circuit court incidental to an action therein for damages for publication and circulation, by the one restrained, of circulars, containing libellous matter of and concerning plaintiff and his business, preventing continuation of the wrong pending the action? That is the vital question upon this appeal.

However erroneous the order in question may have been, or even if it were jurisdictionally bad, in the sense of inexcusable use of judicial authority, as distinguished from want of power under any circumstances to make the same, it was binding on appellant till set aside in some proper proceeding to that end. State, etc., v. Circuit Court for Green Lake County, 98 Wis. 143, 73 N. W. 788. Willful disobedience of such an order, however improvidentially issued, in the sense of an erroneous or even abuse of power, is a criminal contempt. In the case cited, the court, in harmony with authority generally, said in effect: An injunctional order, within the power of the court, must be implicitly obeyed so long as it stands. It is not outside the power, if the court has jurisdiction of the subject-matter, as said in State, etc., v. Green Lake County, or perhaps more accuratelysaid in...