Roberts v. Gerber

• Decision Date: 10 January 1928
• Citation: 194 Wis. 509,217 N.W. 691
• Parties: ROBERTS ET AL. v. GERBER ET AL.
• Court: Wisconsin Supreme Court

194 Wis. 509

217 N.W. 691

ROBERTS ET AL.

v.GERBER ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1928.

Appeal from an order of the Circuit Court for Walworth County; E. B. Belden, Circuit Judge. Affirmed.

Action by John Roberts and others against Winfred D. Gerber, W. S. Shields, and others. From an order holding defendant last named and others in contempt for disobeying a judgment theretofore entered, such defendants appeal. Affirmed.--[By Editorial Staff.]

The order holds the defendants Faulkner, Schrom, and Shields in contempt for disobeying a judgment of said court, and further requires said defendants to comply with said judgment in manner and form therein provided. The judgment of the circuit court, which the said defendants are charged with disobeying, was affirmed by this court September 25, 1924 (Roberts v. Gerber, 187 Wis. 282, 202 N. W. 701), and a motion for rehearing was denied June 22, 1925. That judgment, so far as material to the present issue, was as follows:

“It is ordered, adjudged, and determined that the defendants, and each of them, their agents, servants, employees, and all persons claiming under them, be permanently enjoined and restrained from the continued maintenance, occupation, or use, upon the premises described in the complaint known as lot No. 3 in Edward G. Uihlein's subdivision, of part of section 11, in township 1 north, range 16 east, in Walworth county, state of Wisconsin, of the dwelling houses or cottages heretofore erected by them upon said lot, and from further proceeding with, continuing, or carrying out the scheme formed by the defendant Winfred D. Gerber for the subdivision, sale, and improvement of said lot No. 3, pursuant to the plat made or caused to be made by said defendant and called by him ‘Gerber's subdivision,’ or any similar plan or scheme, and particularly from occupying, selling or using said lot No. 3 or any part or portion thereof for hotel, club or camping purposes or for any reformatory, charitable, or penal institution, or for any purpose inconsistent with the preservation of the entire tract formerly known as ‘Forest Glen,’ as first-class residence property, in accordance with the restrictions contained in a certain agreement between John Johnston, Jr., and George A. Weiss, bearing date October 20, A. D. 1892, and recorded in the office of the register of deeds for Walworth county, Wis., on November 7, A. D. 1892, in volume 65 of Mortgages, at page 435; that the defendants Winfred D. Gerber, E. O. Faulkner, Frank Schrom, John Buckhart, and W. S. Shields be, and each of them is hereby, enjoined, commanded and required forthwith to remove from said lot No. 3, and from within the boundaries of said ‘Forest Glen’ tract, the buildings heretofore erected, and now occupied by them respectively upon portions of said lot No. 3, in Edward G. Uihlein's subdivision aforesaid.”

The contempt order here appealed from was based on an order to show cause, and supporting affidavits, that the judgment had not been performed, and opposed by the defendants on the claim, supported by affidavits, that the judgment had been performed in substance and spirit. Upon the evidence submitted to the court, and a view of the premises subsequently had by the court, the court made findings of fact and entered its order of contempt, appealed from, to wit:

“First. That on the 25th day of September, 1924, judgment was duly rendered in the above-entitled action in favor of the plaintiffs and against said defendants:

(a) For the recovery of the costs of the action, taxed at $430.03.

(b) And, further, that the defendants and each of them, their agents, servants, etc., be permanently enjoined and restrained from the continued maintenance, occupation, or use upon the premises described in the complaint, known as lot three (3) in Edward G. Uihlein's subdivision of part of section eleven (11), in town one (1) north, range sixteen (16) east, in Walworth county, Wis., of the dwelling houses or cottages theretofore erected by them on said lot.

(c) That in particular they cease and refrain from occupying, selling or using said lot 3 or any part or portion thereof for hotel, club, or camp purposes, or for any reformatory, charitable, or penal institution, or for any purpose inconsistent with the preservation of the entire tract, formerly known as ‘Forest Glen,’ as first-class residence property, in accordance with the restrictions contained in the so-called Johnston-Weiss agreement.

(d) And that said defendants be enjoined, commanded, and required, forthwith, to remove said buildings or cottages theretofore erected by them as aforesaid, from said lot 3, and from within the boundaries of said ‘Forest Glen’ tract.

Second. That said defendants appealed from said judgment to the Supreme Court of the state of Wisconsin, which court, on March 10, 1925, duly affirmed said judgment of the circuit court, with costs against said defendants in the sum of $130.21. That said defendants thereafter moved for a rehearing of said appeal and for a change of the mandate to the lower court, which motion was denied, with costs, on June 22, 1925. And that the remittitur from the Supreme Court was duly filed in the office of the clerk of said circuit court on the 4th day of August, 1925.

Third. That on and between the 19th day of August and the 24th day of August, 1925, a duly certified copy of said judgment of the circuit court, together with a notice of the filing of the remittitur from the Supreme Court and a demand that said defendants forthwith pay the costs taxed and adjudged against them in both the circuit court and Supreme Court, and that they specifically perform and comply with the requirements of said judgment by ceasing to maintain, occupy or use upon the said premises described in the complaint and hereinbefore described, the dwelling houses or cottages theretofore erected by said defendants upon said premises, and further, by ceasing and refraining from occupying, selling or using said lot for any purpose inconsistent with the preservation of said entire tract formerly known as ‘Forest Glen,’ as first-class residence property, as provided in said Johnston-Weiss agreement, and by forthwith removing from said lot 3, and from within the boundaries of said ‘Forest Glen’ tract, the said dwelling houses or cottages theretofore erected by said defendants, or any of them, upon said lot, were duly and personally served upon each of said defendants E. O. Faulkner, Frank Schrom, and W. S. Shields, and the same were also duly and personally served upon defendants' attorneys, Charles E. Lyon and Jeffris, Mouat, Oestrich, Avery & Wood.

Fourth. That after the service of said certified copies of the judgment, notice of remittitur, and demand for compliance with said judgment, the said defendants E. O. Faulkner, Frank Schrom, and W. S. Shields, in defiance of said judgment, wholly refused to comply with the terms of said judgment except as hereinafter found, by refusing to pay the costs so adjudged and taxed against them, and by continuing to maintain, occupy and use upon said premises described in the complaint, the said dwelling houses or cottages theretofore erected by them thereon, and by refusing to remove said dwelling houses or cottages from within the boundaries of said ‘Forest Glen’ tract, or from said lot 3, as commanded and required by said judgment.

Fifth. That subsequent to the commencement of this proceeding to punish said defendants for contempt, and on September 28, 1925, said defendants have paid the full amount of the costs adjudged against them in both the circuit court and the Supreme Court, and the money portion of said judgment is now satisfied and discharged.

Sixth. That, after the remittitur of said record, the defendants Winfred D. Gerber and John Buckhart conveyed their right, title, and interest in lot three (3) in Edward G. Uihlein's subdivision of a part of section...