Rode v. Sealtite Insulation Mfg. Corp.
| Decision Date | 28 February 1958 |
| Citation | 88 N.W.2d 345,3 Wis.2d 286 |
| Parties | Edward A. RODE et al., Respondents, v. SEALTITE INSULATION MANUFACTURING CORPORATION, Appellant. |
| Court | Wisconsin Supreme Court |
Austin J. Baird, Waukesha, for appellant.
Clayton A. Cramer, Waukesha, for respondent.
Defendant's first contention is that the trial court erred in denying its motion before trial to dismiss the action without prejudice. The ground of the motion was that plaintiffs' then attorney had been attorney for defendant some nine years earlier in an action when another plaintiff had brought similar injunction proceedings against this same defendant, and it is improper now for counsel to serve in a contrary capacity.
When the motion was heard plaintiffs submitted their counsel's discontinuance as such attorney and his and their consent to the substitution of a different attorney not affected by the earlier action. The trial court ordered the substitution of counsel and denied the motion to dismiss. The trial with new counsel was held about ten months later.
Defendant's motion to dismiss the complaint without prejudice would, if granted, leave the plaintiffs free to commence immediately a new action with new counsel. The only purpose and effect of granting the motion would be to cause plaintiffs possible slight expense, annoyance and delay without affecting the merits. It appears to us that such a motion is addressed to the trial court's discretion. Defendant does not argue that it has sustained prejudice. The attorney who is said to have acted improperly in representing plaintiffs withdrew. We find no abuse of discretion in the direction of the trial court that the original action proceed with unobjectionable counsel.
This disposition of defendant's motion advances us only a short step toward the merits of the appeal. Defendant presents no bill of exceptions. In its absence review by the supreme court is limited to ascertaining whether the judgment is sustained by the pleadings and the verdict or findings. Berkemeyer v. Milwaukee Automobile Ins. Co., 1950, 256 Wis. 386, 41 N.W.2d 303; Davis v. Davis, 1951, 259 Wis. 1, 47 N.W.2d 338; State v. Josefsberg, 1957, 275 Wis. 142, 81 N.W.2d 735.
The trial court impaneled an advisory jury which found (1) defendant's operation of its plant at and before the time this action was begun constituted a nuisance, and (2) determined the amount of plaintiffs' damages.
The court made its own detailed findings of fact reciting the many substances which escaped from defendant's property and invaded that of plaintiffs. They furnish ample support for the court's conclusion of law that defendant was perpetrating a nuisance. The judgment provided:
'It is ordered, adjudged and decreed that the operation of the defendant's manufacturing plant at, and before, the time of the trial of this action constitutes a nuisance.
'It is further ordered, adjudged and decreed that within ninety (90) days after entry of Judgment, the defendant, its agents, servants, and employees be perpetually enjoined and restrained from operating its manufacturing plant in such a manner as to cause noxious and offensive gases, vapors, smoke, black sand or dirt particles, fly-ash and rock wool insulation material to emanate therefrom and be deposited in, on, or about the plaintiffs' premises and their residence;'
There was a further award of damages already incurred.
Other than the provision for a ninety day delay this judgment is in strict accord with allegations of the complaint and the findings both of the court itself and the advisory jury. The conclusion of law, so called, that a nuisance exists is a finding of ultimate fact and on this record stands as a verity.
Appellant submits the findings do not support the judgment because there is no finding of fact that the nuisance can reasonably be abated in ninety days, as the judgment provided. We think that finding is to be inferred from what the judgment does contain,--to wit: a recitation that the nuisance exists and the nuisance conditions must be terminated within ninety days.
If, upon these same findings...
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N.A.A.C.P. v. Acusport, Inc.
...404 So.2d 623 (Ala.1981) (suit against city alleging that a proposed sewer lagoon was a private nuisance); Rode v. Sealtite Insulation Mfg. Corp., 3 Wis.2d 286, 88 N.W.2d 345 (1958) (private nuisance suit for offensive smoke, gases, particles, and odors against the owner of a local manufact......
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National Ass'n for the Advancement v. Acusport, Inc., 99 CV 3999 (JBW) (E.D.N.Y. 7/21/2003)
...v. Butler, 404 So.2d 623 (Ala. 1981) (suit against city alleging that a proposed sewer lagoon was a private nuisance); Rode v. Sealtite Insulation Mfg. Corp., 3 Wis.2d 286 (1958 (private nuisance suit for offensive smoke, gases, particles, and odors against the owner of a local manufacturin......
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National Ass'n for Adv. Of Col. Peop. v. Acusport
...404 So.2d 623 (Ala.1981) (suit against city alleging that a proposed sewer lagoon was a private nuisance); Rode v. Sealtite Insulation Mfg. Corp., 3 Wis.2d 286, 88 N.W.2d 345 (1958) (private nuisance suit for offensive smoke, gases, particles, and odors against the owner of a local manufact......
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Ennis v. Ennis
...See also Blixt v. Janowiak, 177 Wis. 175, 188 N.W. 89 (1922). This power was more recently recognized in Rode v. Sealtite Insulation Mfg. Corp., 3 Wis.2d 286, 88 N.W.2d 345 (1958), which upheld the trial court's denial of a motion to dismiss only because the offending attorney had withdrawn......