Kaehler v. Dobberpuhl

• Decision Date: 08 April 1884
• Citation: 60 Wis. 256,18 N.W. 841
• Parties: KAEHLER v. DOBBERPUHL.
• Court: Wisconsin Supreme Court

60 Wis. 256

18 N.W. 841

KAEHLER

v.DOBBERPUHL.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from the circuit court, Waukesha county.E. S. Turner, for respondent, Adelaide F. Kaehler.

Cotzhausen, Sylvester, Scheiber & Jones, for appellant, Charles Dobberpuhl.

ORTON, J.

This is an action of replevin for certain cattle, sheep, horses, and other personal property, which the defendant, as town treasurer, took by virtue of a tax warrant for certain unpaid taxes upon certain land owned by the plaintiff, and occupied by her, together with her husband and their family. The property, when so seized, was upon and used upon said land. The property was taken by the writ and delivered to the plaintiff. The verdict was mainly directed by the court, and the jury found the value of the property to be $1,625, and the damages for the taking, $29.62. On the trial, after proof that the property was hers, and that the defendant took the same, and the value thereof, and her damages, the plaintiff introduced in evidence the proceedings in a former action between the same parties, and in the same court, and the injunctions therein in respect to the same tax and the same property. The injunction in that case was to restrain the defendant, as treasurer, from collecting said tax, on the ground of its illegality, and the bill prayed for setting aside and vacating the said tax on the same ground. There was a demurrer to the complaint and a motion to dissolve the injunction, which motion was overruled, and the defendant appealed to this court from said order, and it was decided by this court that the complaint did not state a sufficient cause of action in equity, or any ground for equitable relief or for an injunction; and the order of the circuit court was reversed and the cause remanded, with direction to that court to dissolve the injunction. The complaint in that case was to the effect that the plaintiff, Adelaide, was the owner of the land taxed, and that such tax was void, and that the same personal property involved in this suit, which belonged to her, was liable to be taken by the defendant unless restrained. This case is reported in 56 Wis. 480;S. C. 14 N. W. REP. 644. Notwithstanding the injunction, the defendant proceeded to levy upon said personal property, and the plaintiff made the proper application for proceeding against him for contempt, to enforce her civil remedy for the violation of said injunction, and for indemnity for her damages thereby suffered. On the hearing the defendant was found guilty of the contempt, and there was awarded to the plaintiff the sum of $50 as such indemnity, with costs. This was also appealed to this court, and it was decided that inasmuch as the complaint stated no cause of action in equity, or ground of relief, there was no ground for such injunction, and that it was improvidently granted, and that the tax sought to be set aside was valid, and that the plaintiff, therefore, had not been damaged by the violation of the injunction, and was entitled to no indemnity. This case is reported in 56 Wis. 497;S. C. 14 N. W. REP. 631, 644. These last proceedings were introduced in evidence by the defendant. It is proper to say that the judgment of the circuit court for contempt, and awarding indemnity, reserves any right the plaintiff may have to bring any future action for the recovery of this property. On this evidence the defendant requested the court to direct the jury to find for him in the action, and on refusal excepted, and the court directed the jury to find for the plaintiff as above stated. The record does not show the ground upon which this direction was made, but presumably on the ground that the property was seized by the defendant in violation of the injunction. When this case was tried, the record, together with the judgment of this court in the injunction case, had been remitted. From the above statement of this case, certain well-established principles of law are clearly applicable, and must govern it.

It is contended by the learned counsel of the respondent that because the defendant violated the injunction when he took the property, that therefore his legal rights in this action are gone. This was precisely the ground taken by the plaintiff on the hearing of the motion of the defendant to dissolve the injunction: that he was in contempt, and therefore had no right to have it dissolved. But this court held that his technical violation of an ex parte injunction, which ought not to have been granted in the first place, took away none of his legal rights in the case. The court would not grant him a mere favor, but at the same time would not deny him any strict legal right. This action is a continuation or revival virtually of the same controversy. In the contempt case it was held that the violation of the injunction did not take away from the defendant his legal right to have it dissolved and defend the action, and so, here, it did not take away his right to defend this action to recover the property taken for the tax. The principle is the same.

(1) Then the violation of the injunction by the defendant was no good ground for the plaintiff's recovery in this case. Kaehler v. Dobberpuhl, 56 Wis. 497,S. C. 14 N. W. REP. 631, and cases cited in the opinion.

(2) It is contended that because the name of the plaintiff's husband, Peter F. Kaehler, stood upon the assessment roll opposite the said land of the plaintiff as the owner or occupant of it, the tax must be held to be his tax, and the warrant would not justify the taking of her property upon it. In both the two former cases, the plaintiff predicated her rights upon the ground, in the first,...