Joachim v. Madison Dental Clinic

• Decision Date: 06 November 1934
• Citation: 216 Wis. 261,257 N.W. 143
• Parties: JOACHIM v. MADISON DENTAL CLINIC.
• Court: Wisconsin Supreme Court

216 Wis. 261

257 N.W. 143

JOACHIM

v.MADISON DENTAL CLINIC.

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a judgment and order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Affirmed.

George L. Joachim began this action on the 4th day of April, 1932, against E. A. Prouty, the Madison Dental Clinic, et al., under section 273.02, Stats., and asked that the defendants be enjoined from selling or disposing of any moneys, property, debts, or choses in action belonging to E. A. Prouty, and “that they be adjudged to apply the sum upon the judgment” theretofore recovered by Joachim against Prouty upon which an execution had been returned unsatisfied, and for such other and further relief as might be equitable. The action was in the nature of a creditor's bill against several defendants including the appellant to restrain the transfer of property belonging to Prouty. Judgment was granted providing that the plaintiff recover from the Madison Dental Clinic $778.52 with interest and costs amounting in all to $871.96. This judgment was entered the 20th day of December, 1933. February 24, 1934, the Madison Dental Clinic moved to vacate the judgment. The circuit court denied the motion, and this appeal is from that ruling and from the judgment.

Bull, Biart & Bieberstein, of Madison (La Follette, Rogers & Roberts and W. Wade Boardman, all of Madison, of counsel), for appellant.

Stephens, Sletteland & Sutherland, of Madison, for respondent.

FAIRCHILD, Justice.

The respondent, in endeavoring to collect a judgment which had been entered in his favor January 23, 1932, against one E. A. Prouty for $778.52, sought discovery of property belonging to Prouty and evidently intended to avail himself of the remedies afforded by section 273.02, Stats. The complaint and a temporary injunction were served on the appellant April 4, 1932. The order accompanying the summons and complaint directed the appellant to show cause why it should not refrain from transferring or disposing of any moneys, debts, or choses in action then belonging to the said Prouty, and appellant was restrained, in the meantime, from paying out or transferring moneys due to Prouty. A proper undertaking accompanied the injunctional order.

[1][2] The complaint upon which the action supplementary to execution is based was not carefully drawn, but appellant did not see fit to raise any one of several objections it now claims existed. A cause of action defectively stated but showing a cause may be cured by findings or verdict. The court had jurisdiction of the parties and of the subject-matter. Harrigan v. Gilchrist, 121 Wis. 127, 223, 99 N. W. 909;Cline v. Whitaker, 144 Wis. 439, 129 N. W. 400, 401, 140 Am. St. Rep. 1039. As stated in the Cline Case: “It should be understood that, if in a given situation there is any valid ground upon which a temporary injunctional order might, under any circumstances, be issued, though none be stated in the complaint and such an order is nevertheless allowed, it is not void. In case of the person restrained being so circumstanced as to be bound to submit if it is not void, he must, in the main, at least, look to the order only. If that is good on its face, in that it relates to a subject within the jurisdiction of the court, and otherwise appears regular, the duty to obey is plain. The person enjoined has no right to shape his course...