Oosterwyk v. Bucholtz
| Decision Date | 13 May 1947 |
| Citation | 27 N.W.2d 361,250 Wis. 521 |
| Parties | OOSTERWYK v. BUCHOLTZ et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Roland J. Steinle, Judge.
Affirmed.
Action by Gerhardt Oosterwyk against Richard Bucholtz and others. From a summary judgment entered April 14, 1946, dismissing the complaint, the plaintiff appeals. The facts are stated in the opinion.
Louis R. Potter, of Milwaukee, for appellant.
Bender, Trump & McIntyre, of Milwaukee (Kneeland A. Godfrey, of Milwaukee, of counsel), for respondents.
The plaintiff brings an action which he conceives as and denominates an action in equity to enjoin defendants, members of the police force and police department of the City of Milwaukee, ‘from forever after asserting’ that the plaintiff was ‘either arrested, imprisoned (or) found guilty as a receiver of stolen property after trial.'
The complaint alleges in great detail and with lurid embellishment as to the motives, purpose and self-glorification of the defendants and possible deportation of the plaintiffas an alien, acts of the defendants against the plaintiff for which the court is asked to grant the plaintiff compensatory and punitory damages for alleged injuries resulting to the plaintiff from those acts. Reduced to its lowest terms of ultimate facts essential to a cause of action for damages the complaint alleges that the defendants caused the plaintiff's arrest without warrant and imprisonment for three days before any criminal complaint was filed or warrant issued, and caused his prosecution and conviction on perjured testimony of knowingly receiving stolen goods.
There is no allegation in the complaint that the defendants threaten to do the things sought to be enjoined, or that they ever have done those things, or that they ever will do those things. In absence of such allegations we do not perceive any ground for the injunctive relief demanded, or for any relief that a court of equity has jurisdiction to grant. It is fundamental that equity will not enjoin the commission of personal torts; the only torts it will enjoin are those against property or property rights; in all others the legal remedy of recovery of damages is adequate; 4 Pomeroy, Equity Juris., 5th Ed., secs. 1338, 1347, and equity refuses relief on that ground.
The plaintiff, on the assumption that he is entitled to injunctional relief, also asks the court as a court of equity to retain jurisdiction and assess the damages for the injuries that resulted to him from the alleged acts of the defendants. But as no ground for injunctional relief is shown, the court has no equitable jurisdiction to retain, and no jurisdiction to assess damages as a court of equity.
However, this alone does not rule the case in favor of the defendants. The case is before us on appeal from a summary judgment dismissing the complaint. Were it before us on appeal from an order sustaining a demurrer to the complaint, we could not affirm the order merely because the complaint did not state a cause of action in equity, but we would be required to consider whether the complaint stated a cause of action at law. McIntyre v. Carroll, 193 Wis. 382, 214 N.W. 366;Weber v. Myhre, 191 Wis. 263, 210 N.W. 832;Welsh v. Markham, 191 Wis. 310, 210 N.W. 706. For like reason the instant complaint must be considered from the viewpoint whether the facts stated make out an action at law, and if such facts spell out such action, we...
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